Christopher Jon Bjerknes
If the Government argues that a soldier has no right honor his oath to uphold and defend the Constitution and that a soldier has no right to refuse to break the law, then there is no longer an American Government. The Government will have violated the Supreme Law of the Land and rendered it meaningless and of no effect, and thereby have voided its founding document. The Government will have breached the social contract with the People. If the Government argues that the illegality of a war is not an absolute defense for a soldier's refusal to break the law, then the Government will have violated the fundamental principles of law and government and yet again have shown their illegal treatment of those whose rights they are charged to protect. What, after all, is a legal defense to the charges of refusal to obey a legal order, if not the fact that the actions a soldier is asked to take are illegal, or, more properly, that a soldier has reasonable grounds for believing the orders to be illegal? How can a soldier fulfill his duty to uphold the law and defend the Constitution, if upholding the law is no defense against a provocation by the government to break the law? How can the legality of an order not be at issue, when the law imposes a duty upon every soldier to obey the law and to refuse to break it? The illegality of a war ought to be recognized as an absolute defense to the charge of refusal to obey a legal order.
If a court relinquishes its jurisdiction to consider the absolute defense of the illegality of a war, has not the court by its ruling rendered the Uniform Code of Military Justice null and void; in that the UCMJ must provide the defendant with his fundamental rights of due process of law which require the court to honor the defendant's rights to a defense? If the court's jurisdiction is limited so as to prevent the presentation of a defense, then are not the defendant's rights to due process of law violated and the procedures of the court illegal?
When a citizen is confronted with a government which is acting outside of the law, that citizen has no other recourse than to appeal to his fellow citizens to charge the Government with its crimes. The State enjoys powers and means not available to a common citizen. The Constitution and Natural Law provide that the People themselves have the power to police the Government. A soldier reporting Government crimes to the People ought to be recognized as acting within his rights of self defense and pursuant to his duty to report criminal offenses, lest there be no legal means for the People to police the Government when it steps outside the bounds of the law.
The Congress ought to enact specific laws to help define a soldier's rights and obligations. Since the Congress has thus far neglected its responsibilities to enact such laws, one would hope that the courts would employ a very broad interpretation of the law so as to favor a soldier's claim that a given war is illegal.