The Press and the Watada Trial

by MARC COOPER

[posted online on January 22, 2007]

When Army Lieut. Ehren Watada's court-martial opens on February 5, more than Watada's refusal to deploy to Iraq may be put on trial. Also at stake is the independence of the press, especially some of its more vulnerable members. The US Army prosecutor in the case has subpoenaed two reporters to appear: Gregg Kakesako of the Honolulu Star-Bulletin and Oakland freelancer Sarah Olson. The two are being asked to authenticate statements made to them by Watada in which Watada criticized Administration war policy and explained his reasons for refusing to deploy to Iraq last summer.

Watada, 28, is the highest ranking US military officer to refuse duty in Iraq; he faces charges of missing a movement and conduct unbecoming an officer, which could cost him six years in jail. Kakesako and Olson face six months in jail or a $500 fine if they refuse to testify. Kakesako isn't commenting, but Olson is adamantly opposing her compelled testimony. "When speech itself is the crime, journalists are turned into the investigative arm of the government," she told The Nation. "If I contribute to the Army's prosecution of Lieutenant Watada on speech-related charges, I will have colluded in suppression of speech. What could be more hostile to the ideas of a free press than that?"

Neither Watada, who is currently stationed at Fort Lewis, Washington, nor his lawyer has denied any of the anti-Iraq War statements. Indeed, on the same day Olson's story appeared on www.truthout.org, Watada held a press conference repeating the same line of criticism. "As I read about the level of deception the Bush Administration used to initiate and process this war, I was shocked," Watada told Olson. "I became ashamed of wearing the uniform. How can we wear something with such a time-honored tradition, knowing we waged war based on a misrepresentation and lies?" A few months later, in a keynote speech at a convention of antiwar vets in Seattle, Watada further amplified his dissident views. A video of that speech, which was widely reported, including in the Washington Post, is available online.

The military's move to compel Olson to verify what Watada said thus appears gratuitous and unnecessary. Moreover, if the prosecution wants to authenticate what it deems actionable or illegal statements made by Watada in public settings, it should first verify whether the defendant disputes having made them. "When I defend a client like this, the first thing I do is ask the prosecutors if they have already asked the defendant to stipulate," says Los Angeles media attorney Susan Seager of the firm Davis Wright Tremaine. She says that while Olson is being called before a military court that can set its own rules, Justice Department guidelines state that where there is no shield law in effect, the first measure taken to verify information appearing in the press--before going to the reporter in question--should be to find an alternative source.

Dozens of reporters, myself included, have interviewed the free-speaking Watada, which raises further questions about why the military has singled out Olson, whose original article fetched a fee of only $300 and was published by a relatively obscure web news service. "Why harass this reporter?" asks Seager. "It's possible the military doesn't want reporters to write about this story anymore, and that's the real danger here--that reporters will figure it's not worth the hassle and the risk." And with fewer resources than other reporters, Olson might be a tempting demonstration case.

Olson's plight hasn't gotten much attention from professional media associations, in part because she's not being asked to reveal a confidential source but only to verify what's already been published, and no doubt in part because she works primarily for small alternative outlets. Olson is being defended, however, by the First Amendment Project in Oakland on a pro bono basis. The PEN American Center has sent a letter to Defense Secretary Robert Gates on her behalf. And Military Reporters and Editors president James Crawley issued a statement saying: "Trying to force a reporter to testify at a court-martial sends the wrong signal to the media and the military.... Using journalists to help the military prosecute its case seems like a serious breach of that wall." Olson has received a letter of support from the Society of Professional Journalists.

A compromise legal solution, which Watada's lawyer has hinted he'd consent to, would not require that Olson appear but instead to sign a sworn affidavit authenticating her article. While she's not revealing her legal strategy, Olson bristles at the notion. "I don't want to participate in the government prosecution of political speech," she says. "That includes signing an affidavit."