On Feb. 16, Augustin Aguayo lost his appeal for a conscientious objector discharge in the DC Circuit Court. Aguayo applied for a conscientious objector discharge 3 years ago, and refused to carry a loaded rifle during his subsequent deployment. Aguayo is currently in military prison in Germany awaiting court-martial because, while his appeal was pending, he refused a second deployment to Iraq and then went AWOL rather than be forced on the plane.

On Feb 23 the Army refiled charges against Ehren Watada, an officer who refused deployment to Iraq. Two weeks earlier the judge had declared a mistrial because Watada, on the advice of counsel, had signed a stipulation of facts that the court felt he did not fully understand. His attorney will seek a dismissal based on double jeopardy. Watada, who spoke in public and to reporters criticizing the war, was charged with missing movement and conduct unbecoming an officer.

To grant Aguayo’s petition for Writ of Habeas Corpus of the Army’s wrongful denial of his CO discharge, the court had to decide if there was “any basis in fact” for the Army’s decision. Initially, the Army gave no reason for denying Aguayo’s application. Months after the fact, prodded by the Writ petition, the Army came up with a “supplemental memorandum” outlining reasons. The “supplemental memorandum” said that Aguayo was not religious and had not adequately explained the source of his claimed beliefs; that Aguayo appeared to hold his beliefs prior to enlistment; and that the timing of Aguayo’s application was suspect.

The appeal court’s decision said, “Clearly, this was not an open and shut case...But the decision in close cases rests with the [army] not the courts...”

The attorneys for Aguayo believe “the opinion does not properly apply DC Circuit precedent on the ‘basis in fact’ test” and they have indicated a rehearing may be possible. If it stands, this decision may be a negative precedent for other conscientious objectors seeking redress in the courts. According to Peter Goldberger, one of Aguayo’s attorneys, “This decision, in the wake of the Watada outcome, makes the court martial of Aguayo all the more urgent as a focus of support.”

Both of these cases show how the current military policy for dealing with conscientious objectors is inadequate and point to the need for the Military CO Act (MCOA). Had Aguayo gone AWOL 3 years ago, he may have been out of the Army two and a half years ago- as happened to someone else in his unit. As a person of conscience, he played by the rules, trusting that the law would work as it should. It is unconscionable that Aguayo is still in the Army and facing court-martial 3 years after he first applied for conscientious objector discharge.

Watada, even though he risked jail to be true to his conscience, said that he was not a conscientious objector because he was aware of its narrow definition in US law. He is, in fact, a selective conscientious objector, and therefore not protected by US law.

If the Military CO Act were in effect, neither of these conscientious objectors would be facing jail as they now are. The MCOA would establish a statutory right of conscientious objection for servicemembers; it would create a reasonable and fair process that does not leave conscientious objectors languishing in the military for years after submitting their application; it would redefine conscientious objection bringing it more into line with International Human Rights Law and the teaching of most churches in the US.

For more on the Military CO Act, see CCW's MCOA page here. Additionally, you can sign up online to join us in lobbying for the MCOA on May 14, in conjunction with International CO Day. (May 15)

The Center began working with Aguayo on his CO application more than 3 years ago. The Center continues to receive money to help with Aguayo’s defense. To support Augustine Aguayo’s defense fund, you can donate to the MCN Legal fund by clicking here.