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.”