Judge Won’t Allow the Illegality of the Iraq War to be Discussed in Court
By Deanna Gorzynski, 2/7/07
Watada, a Stryker Brigade
soldier, is the first commissioned officer to refuse to be deployed to Iraq. Watada’s
unit left Ft. Lewis
for Iraq
in June, but Watada remained behind. He said he believes the war is illegal and
that his duty is to not abide by illegal orders.
It appears that the reasons
Watada refused deployment are subjects the Judge, and many other interested
parties, prefer not to be discussed and allowed to educate the electorate.
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Judge Lt. Col. John Head
has tried to keep the proceedings from becoming an investigation into the war
and its” legality, or lack there of. Head ruled that Watada’s attorney is not
allowed to present witnesses who would speak to the wars” legality.
Watada is charged with
missing movement to Iraq
and with two counts of conduct unbecoming an officer. Those last two charges
result from statements Watada made against the war in a video tape released to
reporters after he made his refusal to go to Iraq
public and to a Veterans for Peace convention at the University of Washington.
He had been charged with
two other counts of conduct unbecoming for interviews he gave. Prosecutors
dropped those charges in return for Watada’s signing a stipulation that he had
given the interviews. He also acknowledged in the stipulation that he didn’t go
with his unit to Iraq,
though he didn’t admit his guilt to the missing movement charge.
With the jury of officers
out of the courtroom Wednesday morning, Judge Head wanted to question Watada
about the stipulation to make sure that it was accurate and to protect the lieutenant
against any mistakes in it.
But Eric Seitz, Watada’s attorney, objected to the questioning. He said the
stipulation should include Watada’s reasons for not going to Iraq: His views
that the war is illegal.
“It has always been his position that not only would he
miss movement but he would not participate in a war he considered illegal and
not participate in war crimes”, attorney Seitz said.
 Above: Protest in support of Lt. Watada outside his trial on Feb. 5th. Lt. Watada’s courageous example of refusing to fight in an unjust war has inspired people across the country, and Watada has received widespread support, with protests, forums, and war tribunals held in his defense across the country. Prominent voices have also came out in support of Watada, from US Rep. Mike Honda, Willie Nelson, Harry When Bush and everyone else in the government tells us we have to “support our troops”, our answer must be that this is an unjust war, and we support the troops who refuse to fight. |
“His specific intent
was of a different character all together” than simply missing his unit’s
deployment to Iraq,
attorney Seitz said.
But Judge Head said he
wanted to inquire about the stipulation to make sure there wasn’t a
“material misunderstanding” in it.
If Judge Head can’t
question Watada and make sure the stipulation is accurate, he would have to
throw the document out. That would mean the two charges that had been dropped
would be returned against Watada.
With this legal reality,
Judge Head said he might have to declare a mistrial.
With the court-martial
delayed, the judge and lawyer are trying work out their differences to keep a
mistrial from being declared.
The prosecution rested its
case at 3:40 p.m. Pacific on Tuesday.
Watadas” Lawyer Eric Seitz released the following
statement after the day 2 proceedings:
The prosecution presented three witnesses today; Lt. Colonel Bruce Antonia,
Professor Richard Swain and Lt. Colonel William James. Through our questions,
the witnesses continued to describe a young officer who made every possible
attempt to avoid conflict in a respectful, orderly manner in an effort to
resolve a dispute between his own conscience and the orders that he was given
to deploy to Iraq.
The witnesses never delved into the reasons why Lt. Watada refused deployment
to Iraq,
but all of them conceded that Lt. Watada was a “quality officer” and
a person of integrity. Tomorrow, we expect to two witnesses to testify – Lt.
Watada and Captain Scott Hulin, who returned from Iraq in order to testify as a
character witness. These are the only two witnesses this court has allowed us
to call. The judge has continued to deny us the opportunity to bring any expert
witnesses in order to fully explain Lt. Watada’s motivations and reasons for
refusing deployment to Iraq.
Based upon the first two days of trial, we are continuing to be optimistic
about the outcome, and our hope is that Lt. Watada will be treated with respect
for the position he’s taken and the views that he’s articulated and that any
disposition will take into account that he is taking a position of conscience.
He concluded,” We expect the findings portion of the case to conclude tomorrow,
and any punishment proceedings will probably conclude on Thursday.”
Military judge Lt. Col. John Head granted prosecutors’ request for a
mistrial, which Lt. Watada’s attorney opposed. He set a March 12 date for a new
trial and dismissed the jurors.
For more on how to support Lt. Watada, visit ThankYouLt.org.
Watch:
A Soldier’s Duty? The Ehren Watada Story (documentary):
From CourageToResist.org:
FORT LEWIS, WA (February 8, 2007) – In a complex and confusing turn of
events yesterday, Army lead prosecutor Captain Scott Van Sweringen
reluctantly requested, and was granted a mistrial in the case of First
Lieutenant Ehren K. Watada, the first military officer to publicly
refuse to fight in Iraq.
In summation, the day after the prosecution rested a poorly presented
case against Lt. Watada for “missing movement” to Iraq and two counts
of “conduct unbecoming an officer and a gentleman,” the prosecution
then requested-over the strenuous objections of Lt. Watada’s defense
team-in essence a “do over.” Lieutenant Colonel Judge John Head then
agreed to the “do over.” The basis for which, and the judge’s motives, may
likely be a matter of debate for some time.
Lt. Watada’s civilian lawyer Eric Seitz later explained, “The mistrial
is very likely to have the consequence of ending this case because a
retrial would be a case of double jeopardy based on the military rules
for courts martial and applicable case law.” Should the Army proceed
with a second trial, Seitz said he would seek dismissal of the charges
with prejudice so they could not be again filed. “I do not expect a
retrial to ever occur,” stated Seitz. Army Captain Mark Kim, Lt.
Watada’s appointed military defense lawyer, noted that he agreed with
Seitz’s conclusions.
John Junker, a University of Washington law professor independently
consulted by the Seattle Post-Intelligencer newspaper explained, “You
can’t just stop in the middle and say, “I don’t like the way it’s
going” and start over. If the defendant objected, it does raise the
possibility” of double jeopardy. Junker noted, “That doctrine comes
from the Constitution.”
The aborted court martial of Lt. Watada
Lt. Watada’s general court martial at Fort Lewis, Washington got off
to a contentious start Monday morning. The opening session featured
Judge Head denying every defense motion, particularly those that dealt
with issues related to the illegality of the Iraq War. Seitz repeatedly
voiced objections to these rulings, at one point describing them as
“judicial malfeasance,” bordering on “comical.” Judge Head seemed to
have preemptively ruled Lt. Watada’s entire defense irrelevant.
Judge Head also ruled that all defense witnesses, with the exception
of a single character witness, were denied. These witnesses were to
include Richard Falk, Professor of International Law and Practise,
Princeton University; Michael Ratner, president of the Center for
Constitutional Rights; former UN Assistant Secretary-General Denis
Halliday, outspoken Iraq War critic General Newbold; and Congressman
John Conyers.
During afternoon jury selection, things turned interesting. Most
potential jurors (or “panel members”), all career military officers,
expressed predictable skepticism towards Lt. Watada’s positions as they
understood them from media coverage. However, Cpt. Nicole White said
she was “impressed” when she first heard about Watada’s decision.
“Basically, it was like he was standing up for what he believes in.”
Judge Head, somewhat shocked, offered, “Another word for ‘impressed’
would be ‘surprised’?” “Yes, sir,” White replied. Amazingly, she was
allowed to remain on the jury. (Note: Courage to Resist inaccurately
reported on this exchange and outcome in our February 5th report from
Fort Lewis.)
Seitz later noted that he was satisfied with the panel of jurors finally seated for the court martial.
Crisis of conscience for motivated Army officer
In the prosecution’s opening statement, the government declared that
“Lt. Watada betrayed the Army by making his issues public.” He “sat
comfortably in his office, while his soldiers deployed.” Not the
defense, but the prosecution witnesses painted a completely different
picture.
On opening, Seitz declared, “There are no factual disagreements on the
issues about what Lt. Watada has said or done. The only real question
is why? What was his intent? The only witness you really need to hear
from is Lt. Watada himself.” Seitz then outlined Lt. Watada’s
progression of a motivated young Army officer to a reluctant public
opponent of the Iraq War.
Seitz detailed Lt. Watada’s attempts to resign his commission from the
Army beginning in January 2006. These attempts included a number of
formal and informal letters, and multiple one-on-one counseling
sessions with superiors, where Lt. Watada articulated and defended his
understanding that the Iraq War was factually illegal.
Prosecution witness Lt. Col. Bruce Antonia later confirmed Lt. Watada’s
attempts to resign, and his belief that “he would rather go to jail,
than go to an illegal war.” Antonia would counter that Lt. Watada,
“could not know for certain that the Commander in Chief intentionally
misled the public.” They debated these issues “man to man,” but in the
end, Lt. Watada told him, “This is what I believe, this is my stand.”
Antonia went on to describe Lt. Watada as a “hard working, quality
officer” up until January 2006, and remained “trustworthy and reliable”
despite his articulated convictions. Antonia’s primary criticism of Lt.
Watada was that he made his opinions public.
When Antonia noted that Lt. Watada “was sincere” in his beliefs, Cpt.
Van Sweringen interrupted his own witness to declare, “Sincerity is
irrelevant.”
Antonia later disapproved Lt. Watada’s resignation in the hope that Lt.
Watada would eventually change his mind, and “not make a young man’s
mistake.”
Antonia deployed to Iraq and was in charge of “clearing areas (of
suspected insurgents) in the Baghdad area.” Lt. Watada would have
served as an information operations officer under him in carrying out
that mission.
Speech charges piled on
“After Lt. Watada refused to board the airplane to Iraq, speech
charges were piled on,” explained Seitz to the jury. “Objection!”
Sustained. Seitz continued, “You will hear from one other witness,
because apparently that is all we are going to be able to do here.”
“Objection!” Sustained.
At one point, Judge Head jumped in, “The issues rooted in the
constitution are irrelevant here. This is not a speech case, but a
conduct case.” The prosecution then showcased videos of Lt. Watada’s
speeches on the courtroom plasma monitor.
Prosecution witness Antonia had acknowledged that he did not
specifically order Lt. Watada not to make these public statements. He
even outlined to Lt. Watada the manner in which to make statements
without violating military regulations-basically, to do so in a
respectful manner, out of uniform, off base, and after working hours.
Antonia also ordered Lt. Watada to coordinate any media appearances
with the Fort Lewis Public Affairs office. Lt. Watada undisputedly
followed all of these guidelines.
Despite these facts, Lt. Watada still faced two years in prison for his
initial June 7, 2006 video taped statement and his August presentation
to the Veterans for Peace National Convention held in Seattle. Fort
Lewis Public Affairs officers consistently told those that inquired
during this time period that Lt. Watada had done nothing wrong in
regards to his public comments.
Clear and present danger?
In opening, the prosecution had argued that Lt. Watada’s public
declarations in opposition to the Iraq War were a “clear and present
danger to the moral, loyalty, and ability” of his unit, and that their
witnesses would testify to that effect. Seitz unsuccessfully requested
a month recess for the defense to locate unit members in Iraq that
would contradict these allegations. However, this turned out to be
unnecessary.
“To tell you the truth, Lt. Watada’s stand did not have a huge impact”
on the unit, nor did it “decrease moral and effectiveness. It had no
negative impact on the unit,” stated Antonia.
At this time Judge Head attempted to assist the prosecution by asking
the witness, “Did you hear anyone talking about what Lt. Watada”” Seitz
interrupted to point out this was nothing more than a solicitation for
hearsay. “That’s not the role of the judge,” chided Seitz. Judge Head
dropped the question.
Lt. Col. William James, director of the Fort Lewis Battle Command
Training Center, took the stand to state that in his opinion, “Lt.
Watada acted immorally by breaking his oath.” However, “If someone
reaches a position of conscience and acts upon that position, is he
acting immorally?” asked Seitz. “No” replied James.
Finally, the prosecution called retired military officer Richard Swain
to the stand. Mr. Swain teaches a course in “officership” at West
Point. As expected, Swain declared that “oaths were a cornerstone of
military service.” Unexpectedly, Swain continued that officers do not
have to follow orders that they determine to be illegal-nor should they
follow orders they deem to be immoral. “You have to do what your own
conscience tells you to do, no matter what the consequences.”
Swain stated that resignation would be the last step for an officer
with an irresolvable moral conflict. On that note, the prosecution
rested Tuesday afternoon.
Prelude to a mistrial
Last week, Lt. Watada stipulated-legally and formally agreed-to the
fact that he did indeed say the things he was charged with. At the
time, Seitz explained, “We were willing to stipulate to these
statements because he did make them, and he had the right to do so.”
The defense also stipulated to the fact that Lt. Watada did not board
the airplane he was ordered to board for his deployment to Iraq.
In exchange for alleviating significant bourdons of proof for the
prosecution, two of the four charges of “conduct unbecoming an officer”
were dropped.
A motivating factor for the military to propose this stipulation was
that it allowed the prosecution to side-step the growing controversy
resulting from their subpoenas of journalists in the case.
Despite being threatened with six months imprisonment, Oakland-based
independent reporter and radio producer Sarah Olson led a national
campaign against these subpoenas as a mater of fundamental journalistic
integrity. “Doesn’t it fly in the face of the First Amendment to compel
a journalist to participate in a government prosecution against a
source, particularly in matters related to personal political speech?”
she asked in a widely published opinion piece.
After the prosecution wrote the stipulation, Judge Head himself made
suggestions and offered specific wording for clarification. Both Lt.
Watada and Fort Lewis Commanding Officer Lt. General James Dubik signed
off on the agreement. The agreement clearly states that the defense
reserves the right to argue issues covered by motions submitted-most
importantly the “Nuremberg Defense.” Seitz claimed during Lt. Watada’s
pre-trial hearing that this was “simply a matter of due process.”
Forbidding “illegal war” debate created catch-22
Ironically, it appears that Judge Head’s extreme measures to forbid any
attempt by Lt. Watada to defend his actions by explaining his intent to
resist an illegal war, was eventually the mistrial trigger.
The fundamental problem for the judge was that while he had clearly
ruled that Lt. Watada could not legally defend his actions based on his
belief that the war was illegal, the judge had also allowed the
prosecution the bring to trial charges against Lt. Watada for publicly
expressing his opinions that the war was illegal. Numerous times
through out this week’s proceedings Judge Head appeared to pause in
order to intellectually untangle this catch-22.
In fact, during the January 4 pre-trial hearing, Judge Head even had to
ask then-lead-prosecutor Cpt. Kuecker, “Hasn’t the prosecution made
these questions [of war legality] relevant by the way you have charged
this case? Aren’t you trying to block these issues for coming in the
front door, but opening up the back door?” “You have charged motive as
an offense,” declared Judge Head to the prosecution last month.
Judge alleges misunderstanding, mistakenly
On Wednesday morning, prior to Lt. Watada’s anticipated testimony,
Judge Head unexpectedly called into question the stipulation agreement.
He did so based on a seemingly minor proposed jury instruction. The
defense proposal was simply to inform the jury that “Lt. Watada
intentionally missed his deployment because he believed the war to be
illegal.” Seitz later explained that based on all previous motions
being denied, he had “no expectation” that this instruction would be
allowed.
Yet, because Judge Head had intellectually resolved the legality of the
war as completely irrelevant to his own satisfaction, Lt. Watada’s
stipulation of fact that he intentionally missed his deployment, was in
Judge Head’s opinion a “confessional stipulation.”
Over the objections of Lt. Watada’s lawyers, Judge Head insisted on
questioning Lt. Watada on his intent-not while he was on the stand but
simply sitting at the defense table. Seitz unsuccessfully objected that
no legal basis existed for such questioning.
Lt. Watada again stated, “I intentionally missed the movement because I
believed my participation in Iraq would contribute to war crimes and
what I believe would be an illegal war.” But did you believe you had a
“duty to make the movement?” queried Judge Head. “No, I did not feel I
had that duty. I was being ordered to do something that I feel was
illegal. The government and you have made rulings to the contrary, but
that does not negate my beliefs,” replied Lt. Watada.
It seems that Judge Head, based on his own misunderstanding of the
stipulation of facts-not Lt. Watada’s, the defense team’s, or the
prosecutor’s misunderstanding-believed that Lt. Watada was attempting
to plead both guilty and innocent at the same time.
Based on this reconcilable contradiction, one not shared be any other
parties involved, Judge Head went ahead and opened an inquiry into the
stipulation of facts. “This inquiry is unauthorized and unjustified,”
declared Seitz in protest.
Prosecution comes to the defense
“We can not have disagreements as to what the pre-trial stipulation
means. We don’t have a meeting of the minds,” declared Judge Head.
Regardless of “a legal duty or not, what did you believe Lt. Watada?”
“There is additional evidence, which I believe is my defense,” replied
Lt. Watada to Judge Head.
Seitz reiterated, “As far is it goes, it was a stipulation of facts (not a confession). That has always been our position.”
Realizing things were going from bad to worse for the government,
prosecutor Cpt. Van Sweringen rallied to support defense attorney Eric
Seitz. “Both parties agree to the facts. There was a meeting of the
minds sir. There is no question that Lt. Watada has plead not guilty
based on his belief that he believes the war is illegal,” explained Van
Sweringen. “The prosecution agrees that this was a stipulation of facts
only.”
However, since Judge Head had ruled that Lt. Watada’s beliefs were
irrelevant, and was committed to enforcing those rulings with extremist
vigor, this was simply not acceptable. One last time, “What does deploy
mean to you?” asked Judged Head. “To me sir, it means to participate in
a war that I believe to be illegal,” explained Lt. Watada.
Both the defense and prosecution explained that Lt. Watada’s belief was
consistent, as it clearly states in the document in question, “With
this stipulation, however, the defense does not waive any future claim
with regard to the motions and objections previously litigated.”
“Do you understand my problem government?” asked Judge Head. “Frankly,
no” replied Van Sweringen standing with his arms crossed and head down.
“The accused has pled not guilty. If the accused has evidence, the
court should hear that evidence,” offered Van Sweringen, apparently
welcoming the introduction of the “Nuremberg Defense” or any other
issues in the hope of moving forward with the court martial.
Mistrial granted over defense objections
“I don’t know how I can accept (it) as we stand here now,” noted
Judge Head in tossing the agreement. With the stipulation voided, the
prosecution no longer had any evidence to the facts before the jurors.
Although Judge Head offered to allow the prosecution to reopen its case
against following a continuance, he rhetorically asked “how do we
unring that bell?” in reference to undoing two days of testimony-all
based on a voided stipulation already studied by the seated jurors.
As to Judge Head’s motive in all of this, it is possible that he
believed he was cutting off a possible future avenue of appeal for Lt.
Watada on the issue of misunderstanding the stipulation. Others believe
Judge Head mistakenly thought that he could provide a “do over” for the
prosecution without double jeopardy being attached, despite Seitz’s
warnings to the contrary.
After repeated and lengthy recesses to allow the prosecution team
time to consult with their superiors on a course of action,
“Government, what’s your druthers?” asked Judge Head. Defeated and
dejected, Van Sweringen muttered, “At this point the government moves
for mistrial.”
Judge Head quickly set a new trial date for the week of March 19, but
agreed the timing would be subject to availability of the defense
lawyers-probably no sooner than May. “This case moves to the top of the
docket.”
Future of U.S. v. Watada questioned
It is unlikely that Judge Head fully realized what he initiated, unless
he actually was seeking to kill the case on a technicality. Lead
defense lawyer Eric Seitz explained following the day’s drama:
“It is my professional opinion that Lt. Watada cannot be tried again
because of the effect of double jeopardy. We did nothing to warrant a
mistrial. The judge made all of his rulings himself, or based upon
motions by the government”. The protection against double jeopardy
applies as a constitutional matter.” Seitz added, “The case is now back
in a posture that it was in some weeks or months ago, and I do not
believe it will ever be resurrected, or ever can be resurrected.”
Many things are possible at this point, including the possibility that
the government will re-subpoena journalists as those charges are
technically once again before the court, and that Lt. Watada may indeed
face another court martial in the spring or summer with a possible six
year prison sentence. It is impossible to provide odds on numerous
potential outcomes at this time.
One thing is clear: Over one thousand people from around the Pacific
Northwest, the nation, and even the world, converged on Fort Lewis
Monday to rally for Lt. Watada against any real hope that he would not
be imprisoned by the weekend. This unprecedented mobilization, based in
significant part on the national organizing effort launched this last
June by Courage to Resist organizers in support of Lt. Watada and all
military resisters undoubtedly contributed to the outcome in the
courtroom today.
Based on Lt. Watada’s upcoming completion of his service agreement, the
mistrial also opens the very real possibility that the Army’s first
commissioned officer to publicly refuse to deploy to Iraq could be
retired and allowed to leave active duty service in March if the
government is unable to mount a new trial, stated a Fort Lewis
spokesperson to the New York Times.
Report by Courage to Resist organizer Jeff Paterson