Ehren Watada: Free at Last
 

By Jeremy Brecher & Brendan Smith, The Nation. October 26, 2009

[img_r]http://www.couragetoresist.org/x/images/stories/ew/watada-cannon-150.jpg[/img_r]On June 7, 2006, a 28-year-old Army lieutenant named Ehren Watada released a video press statement announcing that he was refusing to deploy to Iraq because the Iraq War was illegal and his "participation would make me party to war crimes." After three years of trying to convict him by court martial, the Army has finally given up and allowed Lt. Watada to resign. Despite his direct refusal of an order to deploy, Watada did not spend a single day in jail.

Watada's Story

A former Eagle Scout with a degree in finance, Watada volunteered for military service after 9/11. His motives could hardly have been more patriotic. For himself and his fellow soldiers, he said, "the reason why we all joined the military" and "the commitment we made to this country" is "to sacrifice everything--sacrifice our lives, our freedom--to ensure that all Americans live in a country where we have true democracy."

When he learned that he would be shipped to Iraq, Lt. Watada began to read everything he could find about the war, on all sides, so that he could better motivate the troops under his command. One of the books he read was James Bamford's A Pretext for War. In a film made about his story, In the Name of Democracy, Watada described shock at what he learned: "Our country, and we as a military, had been deceived. There's no other way of putting it. Whether they misrepresented the truth, or they told half-truths or misled--it's a lie." The Iraq War was "a war not out of self-defense but by choice."

Watada is not a pacifist, and he based his stand not just on the falsehood of the justifications for the war but on the usurpation of legitimate constitutional authority by the officials in the George W. Bush administration.

"There came a time when I saw people with power, and they held that power absolute and they did not listen to the will of the people," he says in In the Name of Democracy. "That was the leadership of our country. Those were the people who were in charge of our lives, and yet they did what they wanted to do with impunity, and nobody was willing to stand up and challenge them."

Watada offered to resign or to be deployed to Afghanistan; the Army refused. He felt bound by his military oath to do what his conscience abhorred. Then he had an epiphany: his military oath actually required him to refuse orders he believed were illegal, and his loyalty was owed to the Constitution, not to the officials who were perverting it.

"I believe the only real God-given right we have is the freedom to choose," Watada says. "And when we take that away from ourselves, then we put ourselves in an invisible prison that nobody else imposes on us except for ourselves. When you tell yourself again that you do have a choice--I could go to prison for it, I could be tortured, I could die for it, but I have that choice and I can make it--then that invisible prison kind of lifts off, and you feel free. I felt so free when I told myself that I have a choice."

On June 7, 2006, Watada issued a statement announcing his refusal to deploy: "It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong but a horrible breach of American law. Although I have tried to resign out of protest, I am forced to participate in a war that is manifestly illegal. As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order."

Crucial to his argument was the unconstitutionality of the decision to go to war. "We had people within our country with tremendous amounts of power who were doing whatever they felt they wanted to," Watada explained. "There were no checks and balances like our Constitution espouses."

His disobedience was also his duty under international law: The UN Charter and the Nuremberg principles "bar wars of aggression." As treaties, they are US law as well.

Watada was aware that imprisonment was the likeliest consequence of his action. But he planned to put the war on trial in the process: "I will try to argue the legal merits of the war: that it is illegal, that it is immoral and that officers and soldiers of conscience should not be forced to do something that is illegal and immoral."

The Army charged Lt. Watada with failure to deploy to Iraq with his unit and began court martial proceedings. There began the torturous process that ended with Watada's recent victory--a process that echoes the old saying, "Military justice is to justice as military music is to music."

Watada and his supporters prepared to put the war on trial. But Military Judge Lt. Col. John Head refused to allow Watada's motivation for refusing the order--the war's illegality--even to be considered. Judge Head maintained that when Watada stipulated that he had disobeyed an order, he was actually confessing guilt, making any defense irrelevant.

The court tied itself in knots trying to maintain the paradox that a soldier has a duty to disobey illegal orders while Watada could not argue that the order he disobeyed was not a lawful order.

When the judge called for the prosecution and defense lawyers to request a mistrial on the grounds that Watada must have misunderstood his own statement, both sides told Judge Head that they disagreed with him. At that point the judge virtually instructed the lawyer for the prosecution to ask for a mistrial, which he immediately granted.

Judge Head proposed to retry Watada on the same charges. But, as Watada's lawyer Eric Seitz said in a press conference after the court martial, since both prosecution and defense had presented their full cases, that would be an obvious breach of the Constitution's safeguard against double jeopardy--trying anyone twice on the same charges. The Army, Seitz said, should realize that "this case is a hopeless mess."

Three military courts rejected Watada's double jeopardy claim; but as soon as the case was appealed to a civilian court, US District Court Judge Benjamin Settle issued a stay blocking the retrial and charging that "the military judge likely abused his discretion." The Army announced it would appeal but then did nothing for eighteen months, leaving Watada in limbo. Finally, after a campaign by Watada's supporters, the Obama administration's Department of Justice nixed the Army's appeal. The Army threatened to court martial Watada on other charges but finally decided to accept defeat.

Deeper Questions Remain

Ehren Watada is now free to go on with civilian life. But as the Obama administration goes into arrears on its pledges to withdraw from Iraq, plunges further into quagmires in Afghanistan and Pakistan, and threatens to escalate conflict with Iran, the questions Watada's action posed continue to haunt us. Here are a few:

Is there a right and obligation to resist?

Watada raised the fundamental question of whether authority--in the military or in society more generally--is something to be blindly accepted, or something to be subject to rational moral and legal examination. He asserted that "the American soldier must rise above the socialization that tells them authority should always be obeyed without question. Rank should be respected but never blindly followed."

Gen. Peter Pace, then chairman of the Joint Chiefs of Staff, was asked in 2006, "Should people in the US military disobey orders they believe are illegal?" He answered, "It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral." If so, what are the implications for soldiers, for the military and for the rest of us?

Should the military hear claims that orders are illegal?

Watada stated, "I understand that under military law, those in the military are allowed to refuse and in fact have the right to refuse unlawful orders--a duty to refuse. In a court of law they should be given the opportunity to bring evidence and witnesses to their defense on how that order was unlawful. In this case I will not be, and that is a travesty of justice."

Should the law recognize selective objectors?

The Selective Service Act provides conscientious objector status to those who oppose all wars on grounds of moral conscience. But it takes the position that objectors can't pick and choose their wars. Yet today there are strong moral grounds to oppose many, if not most, of the wars that occur, even for those who might admit in principle that some wars might be justified. Amnesty International takes the position that there is a right to such "selective objection" and that those who are punished for refusing to participate in a war they consider immoral are "prisoners of conscience."

Watada recognized that "in opposition to my position, the argument will be made that soldiers don't have a right to pick and choose their wars." But, he maintained, "I would respond that it is not only our right but our constitutional and moral duty." Is it time to recognize conscientious objectors to particular wars?

How can illegal wars of aggression be prevented?

There is currently a broad debate on torture in policy circles, the public and to some degree in the courts. But torture is only one war crime, and it's not the most severe. Yet there is virtually no effort to question or establish accountability for the most important war crime by the United States in Iraq: illegal pre-emptive war.

As Watada said, "I think the greatest crime that the leaders of a country could commit--the leadership of a country--would be to take their people, their country, into war, based upon false pretenses."

In a statement that won him an additional charge from the Army, Watada told a Veterans for Peace convention, "To stop an illegal and unjust war, the soldiers can choose to stop fighting it." Is such action disloyalty, or a much-needed addition to our system of checks and balances?

The Army vented its own frustration at its failure to convict Watada by insisting that his resignation was "under other than honorable conditions."

Lt. Ehren Watada honorably sacrificed much and risked more "to make sure that all Americans live in a country where we have true democracy." The Army should honor him as a military hero.

Charges and proposed court-martial
In response to Watada's refusal to deploy, the Army initially proffered seven specifications of various offenses under the UCMJ. Since the initial preferral, all but three specifications were dropped; the remaining ones sent to the court-martial follow:
2 specifications Conduct Unbecoming an Officer and a Gentleman (for statements made in speeches and interviews) (Article 133)
1 specification Missing Movement (for refusing to deploy to Iraq on June 22) (Article 87)
When the initial charges were proffered, Watada faced the possibility of a General court-martial and up to seven years in prison, as well as dismissal from the service. ("Dismissal" is the only class of punitive discharge for U.S. commissioned officers; it is the equivalent of a dishonorable discharge, to which enlisted personnel may be sentenced.) Even faced with these consequences, Watada has said that he does not regret his decision, stating that he believes it to have been his moral responsibility:
When you are looking your children in the eye in the future, or when you are at the end of your life, you want to look back on your life and know that at a very important moment, when I had the opportunity to make the right decisions, I did so, even knowing there were negative consequences.[10]
On these charges, Watada's civilian attorney, Eric Seitz, comments:
Well, we expected him to be charged with missing movement or violating an order to get on a bus to accompany his unit to Iraq. We did not really anticipate that they would charge him with additional offenses based upon the comments and the remarks that he's made. And that opens up a whole new chapter in this proceeding, because what the Army has clearly tried to do by the nature of these charges is send out a message to people in the military, that if you criticize the war and if you criticize the decisions that were made to bring the United States into this war, that you, too, could be charged with disloyalty, contemptuous remarks and disrespect for higher officers, and in this case, specifically in this charge, the President.[11]
[edit]Article 32 hearing
Watada's article 32 hearing to determine whether there was sufficient evidence to move forward with a general court-martial was held on August 17, 2006.[12] The investigating officer Lt. Col. Mark Keith presided.[13]
The Army prosecutor, Capt. Dan Kuecker, described Watada's actions as contemptuous of President George W. Bush, and argued that Watada's public statements hurt morale in his unit.[13] He played video clips from to a Veterans for Peace conference.[14] In that speech, Watada called on his fellow soldiers to stop fighting.[15]
Eric Seitz, Watada's civilian counsel, and Capt. Mark Kim, Watada's military lawyer, raised the issue of the legality of the war. Over the prosecutor's objections, Seitz and Kim called three witnesses to question the legality of the war.[13] University of Illinois Professor of international law Francis Boyle testified that the war is illegal because it was not authorized by the U.N. Security Council, and claimed that Congress approved the war on the basis of faulty intelligence. Also testifying in Watada's defense were Former United Nations Undersecretary Denis Halliday, and Army Colonel Ann Wright (ret.), who retired from the state department in March 2003, in protest of the coming invasion. Like Boyle, both asserted that the war was illegal and that therefore Watada was within his rights to refuse participation in it. Also, the American Civil Liberties Union (ACLU) filed a friend-of-the-court brief, saying that soldiers should not be court martialed for explaining their views.[16]
On September 15, 2006, the Army announced that it had proffered another charge against Watada of "conduct unbecoming an officer and a gentleman".[17] This brought the potential prison term faced by Watada to eight and one-half years in prison if convicted of all charges. Approximately six of these years would have been for statements that he made concerning the war rather than his refusal to deploy to Iraq; "missing movement" is normally punishable by two years. Keith justified the additional charge by asserting that "contempt for the President and suggestion that US soldiers can stop the war simply by refusing to fight borders on mutiny and sedition."[18] On the other hand, Eric Seitz asserts that the Army added the new charge to make a public example of him: "He's not doing anything other than saying things he believes to be true, and that we believe are true. This makes it that much clearer that this is just a political prosecution, and that's really all this case has been about from the beginning."[18]
Keith recommended Watada for court-martial on all charges, even as he said that he thought that Watada was "sincere in his beliefs." Of the court-martial recommendation, Seitz accused the Army of trying Watada without looking seriously at his arguments and that of the other experts appearing at the trial about the legality of the war.[19]
On November 9, 2006, the U.S. Army announced the decision of the Fort Lewis commander, LTG James Dubik, that Watada would face a court martial. The charges of "contempt toward officials" were dismissed without comment. Without the "contempt for officials" charges, Watada could face up to four years confinement, two for missing movement and two for statements that he made, as well as a dismissal, and forfeiture of all pay and allowances, if convicted of the remaining charges.[20]
Watada's defense team had intended to demonstrate that the war was illegal by maintaining that the required congressional approval was granted only on the basis of the existence of WMDs in Iraq and ties between Saddam Hussein and al-Qaeda. They also intended to subpoena witnesses to testify and to cite the Nuremberg Principles,[21] which require soldiers to disobey illegal orders. However, on January 16, 2007, Judge John M. Head ruled that Watada would not be allowed to present any defense based on the Nuremberg principles, stating that the legality of a war was a "nonjusticiable political question"[22] and ruling that the order that Watada had refused was lawful. Watada was also forbidden to present a First Amendment defense.[23] Seitz said about the rulings that "they are essentially saying there is no right to criticize, which we all know is not true," and that they intend to appeal any conviction to the federal courts.[24]
At a pre-trial press conference Watada remarked that he believed it his duty to refuse to fight in the war, and that he was prepared to face prison time for his beliefs.[21]
[edit]Court-martial
Watada was court-martialed in February 2007, with the case ending in a mistrial. On February 5, 2007, Watada's court-martial began with him entering a plea of not guilty to all of the specifications against him. He faced three specifications: one for missing movement, and two for "conduct unbecoming an officer and a gentleman" related to his public comments criticizing the Bush administration and the war.[25] Panel selection was conducted on the first day, narrowing a pool of ten officers down to seven, holding the rank of captain through lieutenant colonel. The court-martial panel is similar to a jury in a civilian trial, but due to special rules provided in the Uniform Code of Military Justice (UCMJ), panels consist of service members equal or superior in rank to the defendant.
On the second day of his court-martial, the prosecution presented opening arguments stating that Watada had "abandoned his soldiers and disgraced himself and the service"[26] and began calling witnesses. The first witness called was Watada's former Battalion Commander, Lt. Col. Bruce Antonia. He testified that he learned of Watada's feelings about the war soon after Watada concluded, in early January 2006, that the war was illegal. Antonia stated, "I told him I was concerned. I did not want this to turn [this] into a big media event." Furthermore, his chain of command counseled him on the consequences of his actions if he refused to deploy and used his position to make a spectacle of the issue.[27] Lt. Col. William James, another officer who counseled Watada, testified that he found Watada's offer to serve in Afghanistan in "direct conflict" with Watada's written statement or stipulation that he did not want to deploy as a "tool" of the Bush administration.[27] Watada had also stipulated that he had indeed missed his brigade's June deployment to Iraq and that he made a series of public statements against the war. In return for the stipulation, Army prosecutors had dropped several counts that knocked two years off the maximum six-year sentence.
Watada argued that his orders were unlawful, and Military Judge John Head ruled that the question could not be resolved within the military justice system, and decided to strike Watada's stipulation, calling it an admission of guilt. Recognizing that the stipulation was the basis of the prosecution's case, Judge Head granted their request for a mistrial.[28]
[edit]Attempted retrial and double jeopardy
A new court martial was set for March 19, 2007[29] rescheduled for July 23, 2007, and then postponed until October 9, 2007,[30] as an appeal based on the issue of double jeopardy delayed the case. Following the ruling on July 5, 2007, by Lt. Col. John Head, again presiding over Watada's court-martial, that double jeopardy did not apply, Watada's attorneys appealed the ruling to the U.S. Army Court of Criminal Appeals and then to U.S. civilian court. On October 5, 2007, U.S. District Court Judge Benjamin Settle stayed further proceedings until October 26. The Army challenged the injunction. Watada was represented by Ken Kagan and Jim Lobsenz with the Seattle law firm Carney Badley Spellman,[31] who have replaced Eric Seitz. On the issue of double jeopardy, Joe Piek, spokesman for Fort Lewis, argued[32] that the rules for courts-martial (MCM Rule 915(c)),[33] allow the Army to try Watada again, on the theory that the mistrial is not a decision and that the mistrial was not due to prosecutorial misconduct. Others, including the military defense attorney assigned to Watada, as well as Kagan and Lobsenz, argued that double jeopardy attached at the start of the presentation of evidence.[34] Rule 907(b)(2)(C) of the MCM states that jeopardy attaches at the "beginning of the presentation of evidence on the merits," raising the possibility that jeopardy attached prior to the declaration of mistrial.
The second court-martial was stayed in October 2007 by U.S. District Judge Benjamin Settle, on grounds of double jeopardy. Settle issued an order stating that Watada's "double jeopardy claim is meritorious" and that no evidence to the contrary was presented.[35] The Army challenged the injunction, and Judge Settle ruled on October 21, 2008, that Watada cannot be retried on three of the five counts, but abstained from deciding whether the remaining two counts of conduct unbecoming an officer may go forward.[36] On November 8, 2007, the injunction was extended by Judge Settle, who held that Lt. Watada's double jeopardy claim is meritorious, and that there was no evidence presented that it lacks merit.[35]
The Army appealed to the 9th Circuit Court of Appeals in November, 2008. But after the Obama administration took office, the Justice Department asked the court to drop the case, which was dismissed on May 6, 2009.[37]