Aguayo’s appeal is the first military CO case to come before the powerful and influential D.C. Circuit Court in the 35 years since the Vietnam War. His appeal is one of only a handful of CO cases to reach the appellate level; it is also the only one pending.
The U.S. government seeks to cut back on existing legal precedent, set during the Vietnam War, that civilian courts have authority, under the Writ of Habeas Corpus, to exercise oversight over the military’s decisions regarding CO applications. This precedent protects the right of conscientious objection which dates back to the Revolutionary War. In Aguayo’s case, the Army argues that the federal court should defer to military “expertise” without requiring any verifiable factual or logical basis for the Army’s denial of his CO application. This argument is consistent with recent attacks on the authority of independent courts to use the historic Writ of Habeas Corpus to challenge unfettered Executive power.
The decision of the United States Court of Appeals in the case of Aguayo vs. the Secretary of the Army could profoundly influence the willingness of the civilian courts to question the Executive’s refusal to honor the right of U.S. military personnel to exercise their freedom of religion, including the right not to participate in war.
While the U.S. Court of Appeals for the District of Columbia Circuit considered Aguayo’s appeal of the Army’s refusal to release him, he was threatened with forced and imminent return to combat. The eyewitness account of this event by Agustin’s wife, Helga, states that, on September 2nd, at approximately 9:45 a.m., “I got a call from Augie that he was being held at his unit's headquarters. He told me they were bringing him home to get his uniform and Iraq stuff. He refused to grab his Iraq gear but the sergeant escorting him told him he didn’t need to, just to put on the uniform and grab his toothbrush, a pillow, and a blanket. Augie refused. I thought maybe it was over, but then a short while later two sergeants came to our apartment and forced Augie to get his Iraq gear. He went to the back of the house and jumped out a window. One of my daughters was skating in the front, and one sergeant chased her and demanded she tell him where he was. She was terrified and ran away. They came pounding on doors and searched the house three times, looking through all my personal things. And then the Rear-Detachment Commander and the 1st Sergeant came and went as far as to say that he would be put on that plane, even if he had to be put in handcuffs. They tried to intimidate me and were very harsh with their words.”
Agustin went AWOL in Germany then, unaided by the military, made his way back to the U.S. and – well within his 30-day limit – turned himself in to military custody at Ft. Irwin, California. I accompanied him from Los Angeles to Ft. Irwin.
If anyone is a conscientious objector to war, it is Agustin Aguayo. At the same time, anyone considering applying for CO status should understand that this is not an easy “out” of the military. CO status is no longer based solely on religious belief but rather on the “crystallization of belief” about the nature of war and warfare. The application process takes a long time and begins with writing a personal statement about why one considers oneself a CO and includes defending that point of view in front of a military board.
Working with the Aguayos crystallized my belief that anyone considering applying for CO status should also take practical considerations into account, including:
§ Is the service member prepared for a protracted and, usually, expensive legal battle? The Aguayo family – Agustin, his wife, and two daughters – are faced with loss of income while fighting this case, the costs of the family traveling to and from Germany where Agustin is held, and mounting legal fees. And, there is no guarantee that Agustin will not serve seven years in jail for his resistance… with all those attendant financial and emotional costs.
§ Has the service member researched other organizations for information on discharges? Service people should be aware that different organizations approach COs – and AWOLs and UAs -- in different ways. For example, an organization based on religion with an apolitical mission may present the CO application and process in a different light than an organization with a, say, an anti-war mission, or an organization with a purely political or critical theorist mission.
Agustin Aguayo turned himself in at Ft. Irwin and he was taken into military custody. But first, standing outside and witnessed by over two dozen civilian and military individuals, he submitted to a search and his pockets were turned inside out. His wrists and ankles were cuffed and chained, he was assisted into the waiting vehicle, and he was driven to Ft .Irwin’s brig.
Despite the Public Affairs Officer’s proposition that Agustin would probably remain in California, 72 hours later he was returned to Germany. He is currently in a U.S. military prison in Germany awaiting court martial and a possible seven-year jail sentence for refusing to fight in war.
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