This article, by Alice Embree, was posted to the Rag Blog, August 7, 2009
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Three knocks on the door of the small conference room signaled the beginning of Specialist Victor Agosto’s summary court martial. Captain Santos said, “Enter.”
Victor saluted her and said, “Specialist Agosto reporting as ordered.”
A summary court martial is a scripted affair in which the presiding officer serves as judge, prosecutor and defense attorney. At this hearing Victor Agosto’s charge was his refusal to obey orders to deploy to Afghanistan and the tiny room was packed with civilian supporters. An Associated Press reporter would soon give the story a national audience.
Specialist Victor Agosto has been stationed with the 57th Expeditionary Signal Battalion, 69th Air Defense Artillery, Rear Detachment. He had served a thirteen-month deployment in Iraq. On the day of his court martial he had been in the Army four years and one day. His contract would have been up at the end of June, but the unpopular stop/loss clause was invoked, his termination date revised and he was told he would be deployed to Afghanistan.
Rather than going AWOL or trying to escape punishment, Agosto informed his command in April that he would not be deployed to Afghanistan. He reported for work, but refused all orders that directly supported the war that he found immoral and unjust.
In the court martial hearing on Wednesday, August 5, 2009, Cynthia Thomas testified to Victor Agosto’s character. She told those present that as an Army wife for seventeen years, she had met many soldiers, from privates to officers. “And in all that time I have not met a soldier with more integrity than Spc. Victor Agosto... He’s not impulsive or rash... he carefully considers the consequences of his actions... I have seen him struggle with the question that plagues many of our soldiers and family members. Whether the wars in Iraq and Afghanistan are just.”
Cynthia told the court that Victor Agosto “made the very hard decision to follow his conscience knowing that his peers and his command would ostracize him. That he would lose all the benefits he has earned after fulfilling his 4-year contract, and after serving thirteen months in the Iraq war... Victor feels so strongly in following his conscience that he is willing to give up his freedom. The very freedom that our country asks our soldiers to fight for..."
After Cynthia’s testimony, the hearing was moved to a larger hearing room in order to accommodate more supporters who had not been able to get in. Victor Agosto was allowed to present testimony at that time. He spoke of his good conduct medal, of the fact that he didn’t break rules other than those he could not follow in good conscience. He testified that he did not pursue a Conscientious Objector discharge because he believed that some wars were necessary. Agosto said that he believed that the war in Afghanistan was illegal under international law -- that the United Nations Charter prevents countries from engaging in wars unless they are in self-defense or authorized by a United Nations Security Council resolution.
Agosto went on to cite the letters of support he has received, including one from Noam Chomsky. He said that he has received over 2,000 online signatures on petitions of support and several hundred more petition signatures on paper.
After a short adjournment, Captain Santos read Agosto’s sentence -- loss of rank, loss of half a month’s pay, and thirty days confinement. He is then likely to receive an Other Than Honorable discharge that will cost him additional GI benefits.
In an unscripted emotional moment after the sentence was read, Victor Agosto ripped his rank off his uniform and put it in front of the Captain. Later, his attorney said, he received a guard’s help in removing the rank sewn on to his hat.
Supporters waited for about forty minutes for Victor Agosto to be brought downstairs. Guards escorted him to a white van. He was undaunted, unshackled and without handcuffs, flashing a peace sign as supporters did the same and raised fists. Despite a guard’s repeated warnings of “no pictures,” cameras clicked and film rolled.
Victor Agosto’s civilian attorney, James Branum, returned reporters' phone calls all afternoon. He had acted as an occasional advisor, but did not represent his client. Under the strange rules of military
code, if Branum had represented Agosto, a guilty verdict would remain permanently on Agosto’s criminal record.
At 7:00, under a still unforgiving Texas sun, about sixty supporters gathered at the East Gate of Fort Hood. Active duty soldiers in Iraq Veterans Against the War were joined by people from Killeen, Belton, Austin, and as far away as Fort Worth. Protestors stood across from the sprawling military base -- the country’s largest base -- holding signs of support for Victor and chanting. Drivers passing by flashed peace signs, held thumbs up and honked, proving that there is more of a bond than most would suspect between the peace movement and the soldiers and military families ground down by multiple deployments in seemingly unending wars.
James Branum read a statement from Victor Agosto. “I have learned that nothing is more frightening to power than a direct and principled challenge to its authority. The truth is on our side and those who have incarcerated me know it.”
Victor Agosto will serve thirty days in a Bell County Correctional Facility. (His official inmate listing says "offense unknown.") Supporters have scheduled weekly protests 1-2:00 p.m. each Saturday while Agosto is incarcerated. Belton’s New Jail Facility, also known as Loop 121, is located at Loop 121 and Huey Drive.
- Victor Agosto on Democracy Now
- Afghanistan War Resister to "Put the War on Trial"
This article, by Dahr Jamail, was posted toTruthOut, July 14, 2009.
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US Army Specialist Victor Agosto served a 13-month deployment in Iraq with the 57th Expeditionary Signal Battalion. "What I did there, I know I contributed to death and human suffering," Agosto told Truthout from Fort Hood, in Killeen, Texas, in May, "It's hard to quantify how much I caused, but I know I contributed to it."
His experience in Iraq, coupled with educating himself about US foreign policy and international law, has led Agosto to refuse to deploy to Afghanistan. "It's a matter of what I'm willing to live with," he said of his recent decision, "I'm not willing to participate in this occupation, knowing it is completely wrong."
Agosto's lawyer, James Branum, who is also the legal adviser to the GI Rights Hotline and co-chair of the Military Law Task Fore, told Truthout during a phone interview on July 10 that, contrary to mainstream opinion that believes Afghanistan to be a "justified" war, the invasion and ongoing occupation are actually in violation of the US Constitution and international law.
"Victor is approaching this from the standpoint of law and ethics," Branum explained, "It's his own personal ethics and principles of the Nuremburg Principles, that the war in Afghanistan does not meet the criteria for lawful war under the UN Charter, which says that member nations who joined the UN, as did the US, should give up war forever, aside from two exceptions: that the war is in self-defense, and that the use of force was authorized by the UN Security Council. The nation of Afghanistan did not attack the United States. The Taliban may have, but the nation and people of Afghanistan did not. And under US Law, the Supremacy Clause of the US Constitution, any treaty enacted by the US is now the "supreme law of the land." So when the United States signed the UN Charter, we made that our law as well."
The Supremacy Clause is a clause in the United States Constitution, Article VI, Paragraph 2. The clause establishes the Constitution, Federal Statutes, and US treaties as "the supreme law of the land." The text establishes these as the highest form of law in the American legal system, mandating that state judges uphold them, even if state laws or constitutions conflict.
This was also the basis for the stand taken by Lt. Ehren Watada of the US Army, who in 2006 was the first commissioned officer to publicly refuse a combat deployment to Iraq.
In an article for Truthout published August 14, 2006, I posted the text of a speech given by Watada at a National Convention of Veterans for Peace in Seattle, Washington, where I was present.
Watada outlined the principled stand he took, which applies to that of Victor Agosto today:
"The oath we take swears allegiance not to one man but to a document of principles and laws designed to protect the people. Enlisting in the military does not relinquish one's right to seek the truth - neither does it excuse one from rational thought nor the ability to distinguish between right and wrong. "I was only following orders" is never an excuse.
"The Nuremburg Trials showed America and the World that citizenry as well as soldiers have the unrelinquishable obligation to refuse complicity in war crimes perpetrated by their government. Widespread torture and inhumane treatment of detainees is a war crime. A war of aggression born through an unofficial policy of prevention is a crime against the peace. An occupation violating the very essence of international humanitarian law and sovereignty is a crime against humanity. These crimes are funded by our tax dollars. Should citizens choose to remain silent through self-imposed ignorance or choice, it makes them as culpable as the Soldier in these crimes.
"Aside from the reality of indentured servitude, the American Soldier in theory is much nobler. Soldier or officer - when we swear our oath - it is first and foremost to the Constitution and its protectorate, the people. If soldiers realized this war is contrary to what the Constitution extols - if they stood up and threw their weapons down - no president could ever initiate a war of choice again. When we say, "... Against all enemies foreign and domestic" - what if elected leaders became the enemy? Whose orders do we follow? The answer is the conscience that lies in each soldier, each American, and each human being. Our duty to the Constitution is an obligation, not a choice."
In a victory for Lieutenant Watada, the Justice Department decided in May to drop any further attempts to retry the officer for his refusal to deploy to Iraq.
Having served three years and nine months in the US Army, Agosto was to complete his contract and be discharged on August 3, but due to his excellent record of service and accrued leave, he was to be released at the end of June. Nevertheless, due to the stop-loss program (a program used to keep soldiers enlisted beyond the terms of their contracts which has affected over 185,000 soldiers since September 11, 2001) the Army decided to deploy him to Afghanistan anyway.
When Agosto refused, the Army issued him a Counseling Statement (a punitive US Army memo) on May 1, which outlined actions taken by the Army to discipline Agosto for his refusal to obey a direct order from his company commander, Michael J. Pederson. Agosto wrote on the form, "There is no way I will deploy to Afghanistan. The occupation is immoral and unjust. It does not make the American people any safer. It has the opposite effect," and posted it on his FaceBook page.
On another Counseling Statement dated May 18, Agosto wrote, "I will not obey any order I deem to be immoral or illegal."
On May 27, rejecting an Article 15 - a nonjudicial punishment imposed by a commanding officer who believes a member of his command has committed an offense under the Uniform Code of Military Justice - Agosto demanded to be court-martialed instead.
In words prophetic of Agosto's ethical and lawful refusal to deploy to Afghanistan, Watada said:
"I have broken no law but the code of silence and unquestioning loyalty. If I am guilty of any crime, it is that I learned too much and cared too deeply for the meaningless loss of my fellow soldiers and my fellow human beings. If I am to be punished it should be for following the rule of law over the immoral orders of one man. If I am to be punished it should be for not acting sooner."
Agosto continues to show up for duty at Fort Hood in Killeen, Texas, where he is currently stationed, but refused to take part in any duties that supported either the occupations of Iraq or Afghanistan. He told Truthout during a recent telephone interview he was "cleaning the motor pool" and "pulling weeds," and that the Army was being careful not to order him to do anything that would cause him to refuse to comply.
Meanwhile, Branum was in negotiations with the Army in efforts to seek a lower-level court-martial so that Agosto would suffer the minimum penalties possible.
"We were working with the Army's Trial Defense Services (TDS), and Victor has a military lawyer on his side as well, which I recommended he have," Branum told Truthout during a July 10 phone interview.
"TDS had communicated to the prosecution for me that we were willing to accept an Article 15 and do a month of extra duty, then if he (Agosto) got a summary court-martial we'd take it - which would mean Victor would serve a maximum of 30 days in jail, and receive an Other Than Honorable discharge," Branum explained, "So TDS said they took this offer to the CG (Commanding General) who was to sign off on it, but they said he made a mistake and wrote "special" rather than "summary" on the court-martial and sent it back down."
Branum explained that "a summary court martial is little more than an Article 15. Supposedly there was an "honest" mistake made by them handing down this special court martial, but I think they are playing games with us."
Branum, angered by this recent turn of events, explained the difference between the types of court martial, "They (the Army) are not acting in good faith here. What this still means, is the cap went from 30 days (of possible jail time for Agosto with a summary court martial) to a year (with a special court martial), so a pretty big jump I would say, and a leap from an Other Than Honorable discharge (summary court martial) to a bad conduct discharge (special court martial), which means once he is convicted his pay would stop."
Due to the perceived breach of good faith by the Army during the negotiating process, Branum believes he has no choice now but to up the stakes in Agosto's upcoming court-martial.
"Now we're going to put the war on trial with their special court-martial," Branum said, "They had their chance to keep this quiet and move on, but now we're going to pull out all the stops and put the war on trial, and show how the whole thing is illegal."
The most significant factor in Agosto's case is that he has taken a principled stand against the occupation of Afghanistan long before the "point of crisis," according to Branum. The "point of crisis" to which he refers is generally an ethical crisis a soldier experiences when he or she is getting on the plane to deploy.
"He connected the dots long before that point of crisis," Branum explained, "To me, this is a very morally developed point of view. Most resisters don't reach that point until much later on."
It is a similar point reached by Watada, who in the aforementioned speech precisely articulated this experience:
"Now it is not an easy task for the Soldier. For he or she must be aware that they are being used for ill-gain. They must hold themselves responsible for individual action. They must remember duty to the Constitution and the People supersedes the ideologies of their leadership. The Soldier must be willing to face ostracism by their peers, worry over the survival of their families, and of course the loss of personal freedom. They must know that resisting an authoritarian government at home is equally important to fighting a foreign aggressor on the battlefield. Finally, those wearing the uniform must know beyond any shadow of a doubt that by refusing immoral and illegal orders they will be supported by the people not with mere words but by action."
Agosto spoke with Truthout on July 8, immediately after receiving the news of his "special" court-martial. "I was escorted over to the headquarters of Fort Hood and was handed a folder with the paperwork that said he (Commanding General Lt. Gen. Rick Lynch) approved this kind of court-martial. We were in the middle of negotiating a deal where I would have taken a summary court-martial, where the maximum penalty is 30 days in prison and an Other Than Honorable discharge. But somehow during this process someone submitted the case over to the general's discretion, and that' s not something that is supposed to happen in this negotiation phase. I'm surprised, because I thought this deal was going to go down last week and it didn't. I was with my military lawyer, and we were talking about the case, and during that discussion she got the call from the prosecuting attorney that the case had been referred to the general, and then we knew it wasn't likely we would get the deal I'd sign ed off on. So yesterday I went to the III Corps building and got the news."
Agosto said he has "gotten the indication" that he will be leaving the company he is currently in to be moved to the Battalion's rear-detachment company "because that's the one that will stay here. I think they want to avoid a Jeff Paterson moment, I guess that's their thinking. They won't try to deploy me, they just want to punish me for my intentions and for what I've done so far."
Jeff Paterson was a US Marine during the US attack against Iraq in 1991. Paterson opted to apply for conscientious objector status. When that was denied, he refused to board the plane that was heading to Saudi Arabia during the build-up to the war by literally sitting down on the tarmac and refusing to move. Eventually his unit left without him. Paterson told his story to Truthout last summer in Oakland, California.
"Leaving without me is what I thought they were going to do. I was a sort of liability. Also I had been on a hunger strike the previous week, and had at that point become a medical issue for them. So they left me behind, and I was taken instead to the Pearl Harbor brig, where I did the next two months in pre-trial confinement. I was court-martialed for a number of offenses. Ultimately they chose to cut their losses and give me a quiet discharge even before the court-martial ended."
Agosto's stand has already inspired another member of his unit to refuse to deploy to Afghanistan as well. Sgt. Travis Bishop, who served 14 months in Baghdad with the 57th Expeditionary Signal Battalion - the same battalion as Agosto, who served north of the Iraqi capital - recently went AWOL from his station at Fort Hood, Texas, when his unit deployed to Afghanistan. He insists that it would be unethical for him to deploy to support an occupation he opposes on moral grounds.
On his blog, he writes about his position:
"I love my country, but I believe that this particular war is unjust, unconstitutional and a total abuse of our nation's power and influence. And so, in the next few days, I will be speaking with my lawyer, and taking actions that will more than likely result in my discharge from the military, and possible jail time ... and I am prepared to live with that."
Truthout spoke with him briefly after he turned himself in at his base in early June. He said he'd chosen to follow Specialist Agosto's example of refusal, which had inspired him, and wanted to be present at his post to accept the consequences of his actions. Like Agosto, he, too, hoped others might follow his lead.
Agosto and Bishop are not alone. In November 2007, the Pentagon revealed that between 2003 and 2007 there had been an 80 percent increase in overall desertion rates in the Army (desertion refers to soldiers who go AWOL and never intend to return to service), and Army AWOL rates from 2003 to 2006 were the highest since 1980. Between 2000 and 2006, more than 40,000 troops from all branches of the military deserted, more than half from the Army. Army desertion rates jumped by 42 percent from 2006 to 2007 alone.
Branum, who has defended over a dozen war resisters, told Truthout, "As far as I know, this is the first time since Vietnam that we've had two resisters in the same unit."
Adam Szyper-Seibert, a counselor and administrative associate at Courage to Resist, an organization that supports war resisters, recently told Truthout that "in recent months there has been a dramatic rise of nearly 200 percent in the number of soldiers that have contacted Courage to Resist." Szyper-Seibert suspects this may reflect the decision of the Obama administration to dramatically increase efforts, troop strength and resources in Afghanistan. "We are actively supporting over 50 military resisters like Victor Agosto," Szyper-Seibert says. "They are all over the world, including André Shepherd in Germany and several people in Canada. We are getting five or six calls a week just about the IRR [Individual Ready Reserve] recall alone."
The IRR is composed of troops who have finished their active duty service but still have time remaining on their contracts. The typical military contract mandates four years of active duty followed by four years in the IRR, though variations on this pattern exist. Ready Reserve members live civilian lives and are not paid by the military, but they are required to show up for periodic musters. Many have moved on from military life and are enrolled in college, working civilian jobs, and building families.
Agosto told Truthout he stands willing to face the consequences of his actions.
"Yes, I'm fully prepared for this. I have concluded that the wars [in Iraq and Afghanistan] are not going to be ended by politicians or people at the top. They're not responsive to people, they're responsive to corporate America. The only way to make them responsive to the needs of the people is for soldiers to not fight their wars. If soldiers won't fight their wars, the wars won't happen. I hope I'm setting an example for other soldiers."
"One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law," Dr. Martin Luther King Junior said, words that concisely explain the ramifications of Agosto's position.
As evidenced by the stand being taken by Sergeant Bishop, Agosto's hope has already been realized. However, with 19,000 US soldiers recently added to the occupation of Afghanistan (bringing the total to 68,000) and violence continuing to escalate, there is an increasing likelihood for more to follow Agosto's lead.
