US Army Lt. Ehren Watada is the first commissioned officer to refuse to deploy to Iraq. Convinced that the war in Iraq is illegal under both the US Constitution and international law, Watada believes that he would become party to a crime if he obeys the order to deploy.

But prior to the start of Lt. Watada's court-martial, presiding judge Lt. Col. John M. Head prohibited him from mounting a defense based on the fourth Nuremberg Principle:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

One of the findings of the Nuremberg Trials was that the claim "But I was only following orders!" is not a valid defense for committing war crimes. Corrollary to that is the principle — which is taught in boot camp to every member of the US armed forces — that military members have a duty not merely to obey lawful orders, but to disobey unlawful orders as well.

Writes Timothy J. Freeman:

The ruling by Judge Head conflicts with the statement by U.S. Supreme Court Justice Robert Jackson, the chief prosecutor at the Nuremberg Tribunal, that the United States must be bound by the same rule of law used to prosecute the Germans: "If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." The Nuremberg trials established that soldiers are not immune from prosecution for war crimes just because they were following orders. The judgement at Nuremberg means that the common view held by Judge Head and apparently many Americans that "soldiers like Lt. Watada can't pick and choose when to fight" is just flat out wrong. In denying [Lt. Watada's] "Nuremberg defense" the military is simply setting aside the judgement at Nuremberg and ignoring Justice Jackson's explicit statement.

Witness the paradox of civil disobedience: Nations that ostensibly uphold the right of civil disobedience only do so for the citizens of other nations. No nation that is waging agressive (and therefore illegal) war can afford to allow a man of conscience to look it in the eye and say, "What you are doing is criminal, and I will not participate," for to do so would be to concede the criminality of its actions.

But Timothy Freeman concludes:

The nation would be stronger, not weaker, if it recognized Lt. Watada's right to refuse deployment to an illegal war. If Lt. Watada's action is recognized as right, the nation would be far less prone to engage in unnecessary and immoral wars. In refusing deployment to Iraq, Lt. Watada is serving the country with his conscience, and in so doing, is giving the highest service. If Lt. Watada goes to prison, as seems now very likely, he will be a powerful symbol of the injustice of the nation and its shame in ignoring the judgement at Nuremberg and refusing to remember Justice Jackson's counsel.

So for the time being, despite Justice Jackson's sage counsel, what was sauce for the Axis is not gravy for the US of A.