War Objector's Dad Becomes a Critic

Monday April 16, 2007 10:31 AM

By BRIAN CHARLTON

Associated Press Writer

HONOLULU (AP) - Ever since Army 1st Lt. Ehren Watada refused to go to Iraq, his father has toured the country to criticize the war and gain support for his son.

Bob Watada said his life dramatically changed after his son became the first military officer to face a court-martial for publicly refusing to deploy to Iraq.

He researched events leading up the war, started criticizing the Bush administration on its reasons for invading Iraq and spent much of the past year traveling with his wife to speak about his son and raise money for his legal costs.

``It was because of him that I've gone out and educated myself,'' s't want to commit acts that he felt could be war crimes. He faces charges of missing movement and conduct unbecoming an officer. If convicted, he could be sentenced to six years in prison and be dishonorably discharged.

He faces a second court-martial July 16 after his first military trial in February ended when the judge said he didn't believe the soldier fully understood a pretrial agreement he signed.

His lawyers have advised him to stop talking about the case, his father said.

``My son has somewhat backed off a little bit,'' Watada said. ``He's somewhat become afraid of what people are going to do to him right now. He's become very cautious.''

Bob Watada, however, continues to attract attention despite canceling many of his appearances after his wife had a stroke. He said he still gets about 30 e-mails a day.

Watada, who had seven brothers in the military, also opposed the Vietnam War and extended his education to avoid the draft, claiming that that war was illegal.

He said he discussed his opinions on war with his son when Ehren decided to join the Army. ``He felt there were terrorists out there and he wanted to do his part,'' Watada said.

The Watada Mistrial: Here's What Really Happened

By Bill Simpich
t r u t h o u t | Report

Thursday 08 February 2007

First Lt. Ehren Watada knew exactly what his case was about - and that scared the judge.

There was absolutely no reason to stop the Watada trial.

The judge's claim that Lt. Watada did not fully understand a document he signed admitting to elements of the charges is completely untrue (see Melanthia Mitchell, AP, 2/8/07).

The military seized on that claim and complimented the judge for "protecting the rights of the accused" in granting the mistrial.

Here's what really happened.

Lt. Watada repeatedly told the judge on Monday and Tuesday morning, before the trial began, that he agreed with the 12-page "stipulation of facts" that was provided to the panel of seven officers as evidence of most of the key events in this case. The lieutenant reminded the judge in every response that he continued to believe that his orders to go to Iraq were illegal.

I was there, with a roomful of media, military and civilian observers. We all saw the judge review the document at length and offer a number of suggested factual corrections. (Also see "Watada Lawyer: Double Jeopardy Will Be Argued If Second Trial Proceeds.")

The judge also asked Lt. Watada if he felt "compelled" or "coerced" in his decision to not board the plane to Iraq. The lieutenant assured him that it was an intentional act and that his failure to board the plane was not due to any fear for his personal safety, while carefully reasserting his belief that he had no duty to obey an illegal order.

The judge reminded him that he had already ruled that the order was legal. Lt. Watada responded that he understood what the judge was saying, and then repeated his belief once more.

The stipulation specifically stated that Lt. Watada did not waive any legal defenses not addressed in the document.

The purpose of this stipulation was to drop two charges against Lt. Watada (sparing him exposure to two additional years in prison) in exchange for a written agreement that most of the facts would be admitted into evidence, and thereby evaporate any purported reason for subpoenaing journalists to testify against the lieutenant at the trial.

The document was prepared by the government. When construing a document, it is interpreted in favor of the person who did not prepare it.

It was signed by all parties over a week ago. This was not a last-minute task.

The judge was satisfied. The stipulation was accepted by the court and distributed to the panel Tuesday morning.

The panel proceeded to hear the entire prosecution case on Tuesday: the 12-page written stipulation, two videos that were also part of the stipulation, and three prosecution witnesses that appeared to aid Lt. Watada's theory of the case.

The judge raised concerns about the document on Wednesday morning, moments before Lt. Watada was set to take the witness stand.

The judge had just received a new proposed legal instruction from Seitz. Since the judge had recently ruled that the order given to Lt. Watada to deploy to Iraq was "legal," Seitz took the logical next step. Entitled "Reasonable Mistake of Fact/Law," his new instruction was designed to inform the panel that even if Lt. Watada were "mistaken" in his belief that the order was illegal, a defense to the "missing movement" charge would be viable if the panel made a finding that Lt. Watada's belief that the order was illegal was "reasonable."

Shaken by this instruction, the judge tried to claim that Seitz had introduced some error by submitting this instruction, forgetting that the panel had not seen the instruction and hence any error was literally impossible!

Realizing the error of his ways, the judge then tried to speak to Lt. Watada about his understanding of the stipulation without asking Seitz for his permission. After initially warning the judge that he might not let him speak to Lt. Watada, Seitz relented and told the judge that he would let him speak to him over objection.

The judge repeatedly tried to shake Lt. Watada's insistence that he reasonably believed that he was following an illegal order, all the while insisting that he wasn't trying to mislead him in any way. Lt. Watada again respectfully but firmly punctuated his remarks with his state of mind.

Unsuccessful in his apparent effort to derail the defense, the judge then claimed that "I'm not seeing we have a meeting of the minds here," Head said. "And if there is not a meeting of the minds, there's not a contract." (Seattle Times)

At this point, both the defense and the government figuratively "threw their arms around each other" and repeatedly told the judge that they wanted the trial to go forward. Courtroom observers agreed that they had never seen such a thing in their lives.

The Seattle Times reported that "The defense and prosecution teams both believed the agreement did not constitute an admission of guilt. But the judge on Wednesday said the agreement included all the elements required to find Watada guilty. It was more than an agreement, Head said: It was what he termed a "confessional stipulation," with whatever reasons behind the action irrelevant to the question of guilt."

Lt. Watada's attorney, Eric Seitz, said that the stipulation was not an admission of guilt.

"No. Absolutely no way," he said. "Lt. Watada's a smart guy. He knew exactly what he was agreeing to." (Los Angeles Times)

The judge turned to the prosecution and said "I can't unring that bell." But then, in what appeared to be a moment of panic, he suggested to the prosecution that they recall their witnesses. He warned them that he was considering issuing a mistrial. He offered to let them reopen their case if they wanted to. He offered them whatever time they needed to make a decision "thirty minutes, an hour, or more." When the prosecution assured the judge that they only needed thirty minutes, there was a disappointed look on his face.

Apparently the defense was also asked if it would be willing to withdraw the stipulation and let the case proceed on that basis. As the panel had been relying on the stipulation throughout the prosecution case, the defense was not willing to do anything of the sort.

Upon the prosecution's return, they asked for a mistrial. The defendant opposed it. The motion was granted, and a new trial date was set. But now there was a new problem that may make any new trial impossible.

Once the trial commenced, "jeopardy attached." Once jeopardy attaches, a second trial is generally not possible. This is known as "double jeopardy."

Like all maxims, there are exceptions to the rule of double jeopardy. For example, if a verdict cannot be reached by the finder of fact, defendant cannot object to the resulting mistrial. Nor can the defense create error in order to get the defendant off the hook.

But a mistrial caused by judicial or prosecutorial error is another story. Generally, the charges must be dismissed in order to ensure that the authorities are not tempted to commit error in order to obtain a second trial when events are not going their way.

This is what happened here. The prosecution knew that Lt. Watada was not waiving his right to defend himself against the charges. Again, the stipulation specifically stated that no such waiver was being made.

The judge tried to make some mileage by reciting on the record a warning that he had previously given to Lt. Watada that by signing the stipulation, he was admitting that there was sufficient evidence on each element of the "missing movement" offense (for failing to board the plane to Iraq) for the panel to find him guilty.

"Sufficient evidence," however, is a far cry from any kind of admission that there was no evidence to rebut the prosecution's evidence. It may be news to the judge that trials are conducted for defendants who have pleaded "not guilty," not for those who admit guilt. Was the judge considering what kind of trial he was suggesting? A trial where the determination of guilt or innocence by a panel of seven officers was literally meaningless?

Let's close by examining the law on whether Lt. Watada can be forced to endure a second trial despite the double jeopardy doctrine. The latest case on the subject, US v. Eliot, 463 F.3d 858, 864 (9th Cir. 2006), states: "When, as here, a mistrial is ordered over a defendant's objection, retrial is permitted only if there was a "manifest necessity" for a mistrial (a case-by-case determination with a "high" burden). Other factors to look at are whether the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose the alternative least harmful to a defendant's rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of mistrial."

A case to look at for guidance is United States v. Rivera, 384 F.3d 49, 56 (3rd Cir. 2004) which states: "Critically, a mistrial must not be declared without prudent consideration of reasonable alternatives. Federal Rule of Criminal Procedure 26.3 requires that "[b]efore ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. Where a District Court sua sponte declares a mistrial in haste, without carefully considering alternatives available to it, it cannot be said to be acting under a manifest necessity. Any subsequent reprosecution under those circumstances is barred by the Double Jeopardy Clause."

When you comment that you can't "unring a bell," and then ask the defendant to agree to withdraw a stipulation already seen by the finders of fact for an entire day, you have "consideration" about as "prudent" as a car crash.

Eric Seitz has stated, "My professional opinion is that Lt. Watada cannot be tried again because of the effect of double jeopardy," and will file a motion to dismiss the entire case. The Seattle Post-Intelligencer has reported that John Junker, a University of Washington law professor, agrees that the granting of mistrial over the defendant's objection has opened the door to such a defense.

"The notion is that you can't just stop in the middle and say, 'I don't like the way it's going' and start over," Junker said. "If the defendant objected, it does raise the possibility" of double jeopardy, Junker said. "That would happen in a civilian court, and I presume in a military court. That doctrine comes from the Constitution."

Marjorie Cohn, a professor at the Thomas Jefferson School of Law and a proposed expert witness for the defense, opines: "When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court-martial, he probably didn't realize jeopardy attached. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges."

Prominent Honolulu defense attorney Howard Luke states, "Was there manifest necessity? That's up to the court to decide...From what I understand, I think not. The case could have been continued."

I wouldn't bet against these four authorities. Any fair-minded review of this case will reveal that the defense was doing far better than anyone had expected; that Lt. Watada had protected his rights at every turn; and that the judge was scared of letting this case go to any factfinder who had any chance of being fully informed of Lt. Watada's belief that the war in Iraq is illegal.

Mistrial could be end of Watada case

Thursday, February 8, 2007

Double-jeopardy prohibition might thwart retrial

FORT LEWIS -- The Army court-martial of 1st Lt. Ehren Watada, which ended in a mistrial Wednesday, may have stranger turns ahead: Prohibitions against double jeopardy may keep prosecutors from having a second trial, his lawyer and another legal expert say.

The opposition of Watada and his defense team to the mistrial, declared by the military judge and eventually endorsed by prosecutors after their case fell apart, opens the door for a double-jeopardy defense, said John Junker, a University of Washington law professor.

		JOHN FROSCHAUER / AP
	Carolyn Ho receives support from Carlos Arredondo, whose son Alex was killed in Iraq while serving in the Marine Corps, after her son's court-martial was ruled a mistrial. Army 1st Lt. Ehren Watada announced in June that he would refuse to deploy.

Double jeopardy, which forbids a person from being tried twice for the same crime, does not apply only after a verdict is rendered, but can apply after a jury is empaneled and witnesses have been called.

"The notion is that you can't just stop in the middle and say, 'I don't like the way it's going' and start over," Junker said. "If the defendant objected, it does raise the possibility" of double jeopardy, Junker said. "That would happen in a civilian court, and I presume in a military court. That doctrine comes from the Constitution."

Watada's case has drawn national attention and galvanized the anti-war movement. He is the first U.S. military officer publicly to refuse deployment to Iraq by stating the war is illegal and that he feels duty-bound to refuse unlawful orders.

Watada's trial was in its last day, and he was preparing to take the stand when the military judge, Lt. Col. John Head, raised the issue that led to the mistrial. That issue was a stipulation that Watada had signed and would be given to the jury as part of its instructions.

Head set a tentative retrial date in mid-March, though that date could be moved back.

Prosecutors had not decided last night whether they will retry Watada. Eric Seitz, Watada's civilian attorney, intends to fight to block the prosecutors from trying the lieutenant a second time.

	Watada

Watada's supporters -- among the lucky few who gained access to the small military courtroom -- were excited at the dramatic turn of events.

"I continue to remain very hopeful my son will be exonerated," said Carolyn Ho, Watada's mother.

Ann Wright, a retired Army colonel and former diplomat who quit her post disputing the invasion of Iraq, said "the Army's case is a mess, and it reflects the mess the (Bush) administration is in also in Iraq."

Army officials said they were not disappointed in the outcome as Head's decision demonstrated the fairness of the military justice system and that the judge was looking out for Watada's interests.

Reading a prepared statement, Fort Lewis spokesman Joe Piek said: "The military judge ensures fairness in the proceedings, especially to the accused. In this case, the judge was concerned that the stipulation amounted to a confession by Lt. Watada to an offense to which he intended to plead not guilty."

Seitz, however, opposed the mistrial, saying Head "abused his discretion."

At the same time, said Seitz, who has been trying military cases since the Vietnam War, he had never seen a turn like this.

Seitz said Watada, who was ready to take the stand but never did, "was not happy that he does not get to get this over with," but also knows that the developments could lead to the end of the case against him.

The dramatic turn of events hinged on a stipulation of fact that Watada signed in a plea agreement more than a week ago. Under the plea deal, prosecutors dropped two charges of conduct unbecoming an officer against Watada. He was being tried this week on two other charges of conduct unbecoming an officer and one count of missing movement when his Stryker Brigade deployed to Iraq in June.

Head questioned Watada while the jury was out of the courtroom, which Seitz objected to but allowed, and legal experts such as Junker said they would consider that questioning "very unusual" in a civilian trial.

Head concluded that he could not accept Watada's statement. Although Watada had admitted to failing to deploy with his unit, it was not the same as admitting guilt, which prosecutors considered it to be, Head said.

POLL

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"What did you understand that (the stipulation-of-fact) to mean? What does that mean to you?" the judge asked Watada after sparring with Seitz over his intention to question the lieutenant.

Of his refusal to get on the plane, Watada said: "To me it means to (not) participate in a war that I believed to be illegal."

Head asked if Watada believed the statement to be "confessional" to the charge of missing movement.

"No, I did not," Watada said.

If the stipulation couldn't be accepted, then the two charges that were dropped would be renewed. The plea agreement would have to be rejected. So the judge called a mistrial.

		AP
	Margaret Prescod, with the Global Women's Strike, left, and Liz Rivera Goldstein, campaign coordinator of Friends and Families of Lt. Watada, listen to interviews at a news conference held in DuPont after the mistrial.

"We did not want a mistrial," Seitz said outside the courtroom. He said he believes that the prohibition against double jeopardy ought to keep prosecutors from trying Watada a second time. If they do, he will take the case to an appeals court, he said.

Since the start, Seitz was frustrated at seeing his defense, which included calling expert witnesses to testify about the legality of the war and the parameters of Watada's free speech rights, constricted to keep from putting the war on trial. Head has said he wanted the focus on the legality of Watada's actions, not on the legality of the war.

Yet Seitz said after the court-martial ended in mistrial that Watada's intentions are a significant part of his defense.

"There is no way around talking about why he didn't get on that plane, and that is the government's continuing dilemma in this case," Seitz said.

Had he been tried and convicted, Watada faced a maximum of four years in prison and dismissal from the service.

But for now, he continues to be an active-duty soldier, reporting for work every day at Fort Lewis.

By MIKE BARBER
P-I REPORTER

P-I reporter Mike Barber can be reached at 206-448-8018 or mikebarber@seattlepi.com.

Walking Through Watada (The Court-Martial)

Thursday, February 08, 2007

The ruling by the military judge, Lt. Col. John Head, does not mean that Lt. Watada is off the hook. After moving for the mistrial, the prosecution asked for a new trial and the judge tentatively scheduled a one for mid-March. But it does mean that a new trial could offer Watada's defense team more flexibility in arguing that the officer had a legitimate reason for refusing to fight in Iraq.
[. . .]
Under questioning by the judge, it became evident that the officer was not of the belief that he had signed away his right to defend himself.
"I'm not seeing we have a meeting of the minds, here," the judge finally said. "And if there is not a meeting of the minds, there's not a contract. Tell me where I'm missing something?"
The Army prosecutors made a last-ditch attempt to suggest that they were not arguing that the agreement represented an admission of guilt by Watada. But Head wasn't buying it. The judge told the courtroom that, because there was now a debate about the agreement's meaning, the prosecutors would have to move to reopen their case -- which they had finished Tuesday. That would have forced the prosecution to proceed in front of a jury that had been made aware of concerns about the meaning of the pretrial agreement.
That's when the request for the mistrial was made, and accepted.

The above is from John Nichols' "Mistrial Declared in Lt. Watada Court Martial" (The Notion, The Nation). We're going to do another "Walking Through Watada" entry. And Marcia notes Scott Galindez and Geoffrey Millard's "Watada Court-Martial Ends in Mistrial" (Truthout):

In a stunning defeat for military prosecutors, Lt. Col. John Head, the military judge presiding over Watada's court-martial, said he had no choice but to declare a mistrial because military prosecutors and Watada's defense attorney could not reach an agreement regarding the characterization of a stipulation agreement Watada signed before the start of his court-martial. The judge characterized the stipulation agreement as an admission of guilt by Watada for "missing movement" and making statements against the Iraq war.
Eric Seitz, Watada's attorney, said the stipulation Watada signed, however, was by no means an admission of guilt by his client. Rather, it was a statement of fact that his client believed the Iraq war was illegal, and that he refused to deploy to the region with his unit because of his beliefs. Lt. Col. Head said he wanted to question Watada regarding the agreement to gain a better understanding of what Watada's state of mind was when he signed it, but Seitz would not allow the judge to question his client unless he knew the questions in advance. Head said if he could not question Watada to ensure the accuracy of the document he signed prior to the start of the court-martial, he would have to throw out the agreement, meaning the charges against Watada would become null and void.
Seitz then asked for time to speak to his client. After a 30 minute recess Seitz informed the court that he had advised his client to not answer the judge's questions, but Lt. Watada had agreed to answer against his legal advice.
Issues surrounding the stipulation agreement came up when military prosecutors asked the judge to provide the military panel (similar to a civilian jury) deciding Watada's fate with additional instructions before they returned a verdict.

What it means, the call of a mistrial, is being debated. Brandon notes Eli Sanders' "A Mistrial for Lieut. Watada" (Time magazine):

The highly anticipated court-martial of Army Lieut. Ehren Watada for refusing to deploy to Iraq ended in a mistrial on Wednesday, a surprising development that left military prosecutors clearly frustrated, observers stunned and defense attorneys claiming that the military had blown its only chance at a conviction.
"Our hope is that at this point the Army will realize that this case is a hopeless mess," said Eric Seitz, Watada's attorney, speaking at a press conference shortly after the mistrial was declared.
[. . .]
Stammering at points in his arguments with the judge and looking extremely frustrated, Army prosecutor Capt Scott Van Sweringen asked for the mistrial after Judge Head, having personally questioned Watada about the stipulation, ruled that he was going to reject the agreement and tell the jurors that is should be disregarded. The judge himself seemed to urge a mistrial request at that point, saying of his direction to the jurors: "How do you un-ring that bell?"
A new trial date was set for March 19, and Piek said the unusual turn of events was proof that the Army "steadfastly protects the rights of the accused."
But it seemed highly unlikely a new trial would actually begin on March 19. Seitz, Watada's lawyer, said there would be scheduling conflicts and that in any case he would file an immediate motion to dismiss the case whenever it was finally reconvened. "It is my opinion that Lieut. Watada cannot be tried again because of the effect of double jeopardy," he said, contending that because it was prosecutors who asked for the mistrial, and because the judge granted the mistrial over the opposition of defense lawyers, the prosecutors could not subsequently retry Watada.

Addressing the issue of double jeopardy is Mike Barber's "Mistrial could be end of Watada case" (Seattle Post-Intelligencer):

The opposition of Watada and his defense team to the mistrial, declared by the military judge and eventually endorsed by prosecutors after their case fell apart, opens the door for a double-jeopardy defense, said John Junker, a University of Washington law professor.
Double jeopardy, which forbids a person from being tried twice for the same crime, does not apply only after a verdict is rendered, but can apply after a jury is empaneled and witnesses have been called.
"The notion is that you can't just stop in the middle and say, 'I don't like the way it's going' and start over," Junker said. "If the defendant objected, it does raise the possibility" of double jeopardy, Junker said. "That would happen in a civilian court, and I presume in a military court. That doctrine comes from the Constitution."
Watada's case has drawn national attention and galvanized the anti-war movement. He is the first U.S. military officer publicly to refuse deployment to Iraq by stating the war is illegal and that he feels duty-bound to refuse unlawful orders.
Watada's trial was in its last day, and he was preparing to take the stand when the military judge, Lt. Col. John Head, raised the issue that led to the mistrial. That issue was a stipulation that Watada had signed and would be given to the jury as part of its instructions.
Head set a tentative retrial date in mid-March, though that date could be moved back.
Prosecutors had not decided last night whether they will retry Watada. Eric Seitz, Watada's civilian attorney, intends to fight to block the prosecutors from trying the lieutenant a second time.

Ehren Watada's side and the prosecution were in agreement, it was Judge Toilet that had an issue. Joan notes The Honolulu Advertiser's "New trial scheduled in Lt. Watada's court-martial:"

In a weird bit of courtroom drama, both parties agreed with each other that Head was wrong.
Seitz and Army prosecutor Capt. Scott Van Sweringen said they believed the case could move forward, that Watada's admission to the facts of the case did not prevent him from trying to convince the panel that he had not committed a violation of the Uniform Code of Military Justice.
The judge "manufactured a conflict" after he previously approved the stipulation and it was reviewed line by line on Monday, Seitz said. Seitz said the judge "has been impossible," and "it's been a battle every single day (with) every single ruling."
At one point, an exasperated Van Sweringen told Head he was "at a loss" to make his point any clearer.
But Head said he wasn't satisfied and threw out the stipulation.
"I don't see how I can continue to accept (the stipulation) as we stand here now," the judge said.
Among the facts Watada agreed to was that he didn't get on the bus to go to the airport for deployment, Seitz said, using words like, "I intentionally did not get on the bus" and preserving his opposition to what he felt were illegal orders.
"We and the government told the judge, 'No, there's nothing inconsistent with the stipulation,' " Seitz said later. "It has always been our argument and it was intended to be our argument on appeal that Ehren could defend himself on the basis that the war was unlawful."
Trying to salvage part of his case, Van Sweringen asked Head whether the panel would be able to consider any evidence from the stipulation, including Watada's statements to the media and a Seattle veterans group in which he criticized the war. The statements were the basis for the two charges of conduct unbecoming an officer. Head said no.

Some are less doubtful that the mistrial will result in the case being over. From
Sam Howe Verhovek's "Mistrial declared for war objector" (Los Angeles Times):

Though Watada will probably face another trial, the judge's ruling amounted to a temporary moral victory for the lieutenant in a case that many legal observers had considered a virtual slam-dunk for the Army.
Watada's lawyer, Eric Seitz, said Watada's intent in refusing deployment orders was at the heart of his defense, and that it was ridiculous for prosecutors to suggest that he had no right to explain why he did what he did.
"The government has created a major mess here, and that's clearly why they had to move for a mistrial," Seitz said. "Any time the government tries to suppress a defendant's attempt to explain his actions, that's not a good thing for our legal system."
Antiwar forces wasted no time in declaring the mistrial a victory, with banners saying as much at a rally just outside the base here, several miles south of Tacoma.
"The legal mess we saw here today reflects the major mess the Bush administration has made with the war in Iraq," said Ann Wright, a retired Army colonel and diplomat who resigned a State Department post in March 2003 in protest of the war, which began that month.

Melanthia Mitchell (AP) has some stronger accounts and some weaker ones depending upon which version you're reading; however, ABC's version contains an AP photo and we'll note the caption to that: "Margaret Prescod, with the Global Women's Strike, left, and Liz Rivera Goldstein, campaign coordinator with Friends and Families of Lt. Watada, listen to interviews after a news conference in DuPont, Wash. concerning the mistrial ruling of 1st Lt. Ehren Watada's court-martial at Fort Lewis, on Wednesday, Feb. 7, 2007. Watada announced last June that he would refuse to go to Iraq with his unit, the 3rd Brigade, 2nd Infantry Division. (AP Photo/John Froschauer)" Prescod hosts Sojourner Truth on KPFK.

On the stipulation and what might happen if another court-martial was held, we'll note
Daisuke Wakabayashi's "War objector's court-martial ends in mistrial" (Reuters):


In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.
Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.
Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.
In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.
In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.
Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.
Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.
In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.
In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.
Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.
Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.
In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.

Aaron Glantz spoke with Sandra Lupien on yesterday's The KPFA Evening News and noted that Judge Toilet was "essentially throwing out the agreement that the prosecution and the defense made together on the eve of the trial." As a result, according to Glantz,"Now it looks like we'll all be back here in Fort Lewis sometime in the spring." Lupien asked what this meant in terms of the charges and Glantz stated, "We're going to go back to the original charges. Some of the charges were dropped as a result of the agreement . . . Those charges are now back on the table." It seemed at the beginning that it would to be a slam dunk for the prosecutors but here we are, three days into the trial, and it's ended in a mistrial." This topic is expected to be addressed this morning on the news breaks of KPFA's The Morning Show (7:00 to 9:00 am PST). Thanks to Zach for noting (and transcribing!) Lupien and Glantz above.

The Watada photo is by Jeff Paterson of Not In Our Name and available for public use at this page of the ThankYouLt. site. And one more time, Corey Moss' "War Objector's Court-Martial Ends In Mistrial" (MTV News):

The court-martial of Ehren Watada, an Army lieutenant who refused to deploy to Iraq, ended in a mistrial Wednesday (February 7) after a judge ruled that the soldier misunderstood a document he signed admitting to some of the charges against him.
(See Watada talk about the charges against him and why he refuses to go to Iraq in this video interview conducted before the mistrial.)

The e-mail address for this site is common_ills@yahoo.com.

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# War objector's court-martial ends in mistrial

By Daisuke Wakabayashi Wed Feb 7, 11:22 PM ET

A military judge declared a mistrial on Wednesday for the court-martial of a U.S. Army officer who publicly refused to fight in Iraq and criticized the war.

The military judge ruled that First Lt. Ehren Watada had unknowingly signed a document that amounted to a confession of guilt. Watada, 28, had faced up to four years in prison if convicted of one charge of missing movements and two charges of conduct unbecoming an officer for his criticism of the war.

The mistrial was an unexpected ending to a case that had rallied the anti-war movement in the first known court-martial of a U.S. Army officer for publicly refusing to serve in Iraq.

Lt. Col. John Head, the military judge, declared a mistrial after throwing out a "stipulation of fact" -- an agreement over certain facts of the trial -- that forced the government to request a mistrial instead of immediately arguing its entire case over to prove those facts with new witnesses.

The judge said he could not accept the stipulation, because it amounts to a confession to the missing movements charge when Watada stated he is not guilty.

Watada's lawyer, Eric Seitz, told Reuters the mistrial was a "disastrous" outcome for the government because a retrial would constitute double jeopardy, which forbids a defendant from being tried twice for the same crime.

"These events today are going to be the death knell for the government's case," said Seitz, who added that the government faces an uphill climb since it requested the mistrial.

Lt. Col. Robert Resnick, chief of administrative law at Ft. Lewis, contended that double jeopardy had not attached and the government has the legal authority to retry the case.

At the center of the dispute is the defense's assertion that Watada would not go to Iraq because he considered it an unlawful order that would make him party to war crimes and as result, it was not his duty to obey it.

"There is a material misunderstanding over what this stipulation is," said Head.

The judge set the new trial to start in mid-March, but agreed the timing would be subject to change. Watada will report to duty at Fort Lewis until the new trial begins.

Army officials said the mistrial was an example of how the military justice system protects the rights of the accused.

'START FROM SCRATCH'

Watada agreed to the stipulation before the court-martial began in exchange for the government dropping two additional charges of conduct unbecoming an officer.

In the stipulation, Watada said he did not board the plane with the rest of his unit to Iraq and admitted to making public statements criticizing the war and accusing U.S. President George W. Bush's administration of deceiving the American people to enter into a war of aggression.

Watada does not dispute the facts, but said it was not an admission of guilt because it does not take into account the intent behind his actions.

Asked by the judge if he thought it was his duty to board the aircraft to Iraq, Watada said no. "I felt the order was illegal," he said in the courtroom.

In a new trial, the defense will be allowed to again file a motion to argue the legality of the war. A new judge may preside over the case and all the proceedings before and during the first trial will be wiped clean.

"Everything will start from scratch," said Resnick.

Before the trial, the judge had ruled that the defense was not allowed to argue whether the war itself is illegal, asserting the matter could not be settled in military court.

1,000 rally for Lt. Watada at Ft. Lewis during court martial

Recent Iraq War vets join all-day rally for Lt. Watada, Ft. Lewis WA. 2/5/07 Courage to Resist. February 5, 2007 Over a thousand people and giant puppets rallied at the gates of Fort Lewis, Washington today in support of Lt. Ehren Watada. Formed for the occasion, the “Tacoma Puppetistas” visually dominated the mass rally by putting the war on trial via huge puppet theater. Meanwhile Iraq Veterans Against the War and families of military resisters led chants and marches from rallies in a nearby park to the base gates. On Fort Lewis, supporters of Lt. Watada lined up at the visitors station beginning at 5:00 am in order to gain entry to the court proceedings. Many were turned away, but about 50 civilians were eventually allowed to view the proceedings from a viewing room with an audio/video feed. As Lt. Watada’s mother Carolyn Ho entered the legal building at 8:30 am, dozens of supporters, lined up across the street, erupted into cheers. This is probably not something that happens on Fort Lewis often.

The Iraq War Hits Hawai'i: The Stryker Brigade and the Watada Case

February 3 / 4, 2007

By TIMOTHY J. FREEMAN

Two great volcanoes comprise most of the Big Island of Hawai'i. Mauna Loa, measured by volume, is the largest mountain in the world, and Mauna Kea, if measured from the sea floor, would rank as the tallest. Both peaks are considered sacred, the realm of the gods (wao akua), not just for Hawai'ians, but throughout all of Polynesia.

In October of 2002, the first of a series of protests against the imminent U.S. attack against Iraq took place at the Mo'oheau Bandstand on the Hilo Bayfront. As I drove down to Hilo, I was struck by the majestic and stunning presence of Mauna Kea rising 13,792 ft. above Hilo-so unusually clear on a rare cloudless morning. It was a day that was startling in its beauty even for Hawai'i, and as I listened to the various speakers call our attention to the horrors of what seemed about to take place in Iraq, my gaze often drifted to the tranquil bay and the waves softly rolling down on the sands below. The contrast couldn't have been sharper between the peaceful setting of Hilo Bay and the looming war in Iraq. If it weren't for the voices of the Hawai'ian rights activists-reminding us of the illegal overthrow of the Hawai'ian nation-I might have thought only of the profound difference between these beautiful islands and the war-torn country of Iraq. In fact, what was taking place a world away in Iraq was really not that far away at all and is, indeed, deeply connected to what happened and was still taking place in Hawai'i. I was reminded of the "infinite extent of our relations" as Thoreau once put it, and from this perspective, the connections between the war in Iraq, the overthrow of the Hawai'ian nation, and the continuing controversy surrounding the military's presence in Hawai'i become more and more clear.

The Stryker in Hawai'i

Hawai'i senior Senator Daniel Inouye apparently doesn't see these connections as is evident in a recent editorial in the Honolulu Advertiser in support of the Army's plan to transform the 2nd Brigade in Hawai'i into a Stryker Combat Brigade.[1] The Army's plan would involve basing about 300 Stryker vehicles at Schofield Barracks on Oahu and also expanding the Army's Pohakuloa Training Area on the Big Island which the brigade will use for training. The Army's project to bring a Stryker brigade to Hawai'i has met strong resistance for the last several years from native Hawai'ian groups as well as environmental and peace activists. In October of 2006 a federal appellate court, in response to a lawsuit filed by the nonprofit environmental group Earthjustice acting on behalf of three native Hawai'ian groups, found that the Army had violated environmental laws in not adequately considering alternatives to locating the brigade in Hawai'i.[2]

The decision by the 9th U.S. Circuit Court of Appeals in San Francisco reversed an April 2005 decision by U.S. District Judge David Ezra allowing the Army to proceed with its plans to bring the Stryker brigade to Hawai'i. The Army must now complete a Supplemental Environmental Impact Statement assessing the feasability of alternative locations for the brigade. The appellate court decision ultimately sent the case back to Honolulu and U.S. District Judge Ezra in order to determine what an injunction must cover. On the eve of Judge Ezra's decision Senator Inouye's editorial appeared in which he argued that for the safety of our soldiers in Iraq and Afghanistan "we must allow the training to resume while the Army completes the supplemental environmental study." Not surprisingly, Judge Ezra's decision allows for the Army's plans to go forward while the SEIS is conducted.[3] Live fire training of the Stryker brigade is expected to commence at Pohakuloa on the Big Island in February.

The Pohakuloa Training Area is already the largest live-fire military training area in the Pacific. It consists of approximately 109,000 acres of land that have been used for the last 60 years as a live-fire area and bombing range for an assortment of military weapons. The Strykers will come to the Big Island on the new Hawai'ian Superferry, offloading at Kawaiihae Harbor and then traveling up to Pohakuloa via a newly constructed military road. It is partly for the construction of this access road, and also to increase the training area for the Strykers, that the military's plans include the expansion of the Pohakuloa Training Area by approximately 23,000 acres of land recently purchased from the Parker Ranch.

Pohakuloa sits between Mauna Loa and Mauna Kea. Even the Army acknowledges, in its Environmental Impact Statement, that "the entirety of Mauna Kea, whose southwestern slopes form part of PTA's base, is considered holy." Mauna Kea (The White Mountain) is associated with Poli'ahu, the snow goddess of the summit, while Mauna Loa (The Long Mountain), last erupting as recently as 1984, is associated with Pele, the goddess of volcanic fires. The area between the two sacred mountains, considered to be a site of conflict between Poli'ahu and Pele, is called "Pohakuloa" (The Veil that Covers the Spiritual Realm). Within the Pohakuloa Training Area there are seven stone shrines and a reported 291 archeological sites.

By the Army's own admission in the EIS, Pohakuloa is "spiritually and historically one of the most important places in Hawai'ian tradition and history...It is difficult to describe the emotional and spiritual link that exists between Native Hawai'ians and the natural setting. Hawai'ians generally believe that all things in nature have mana, or a certain spiritual power and life force. A custodial responsibility to preserve the natural setting is passed from generation to generation, and personal strength and spiritual well being are derived from this relationship. Because of this belief, Mauna Kea may be the most powerful and sacred natural formation in all Hawai'i." [4] The EIS acknowledges that there will be "significant unavoidable adverse biological impacts" upon the environment at Pohakuloa. The PTA is said, by former area commander Lt. Col. Dennis Owen, to have "the highest concentration of endangered species of any Army installation in the world." The negative impacts will come from fires that result from live-fire training, as well as from off-road maneuvers by the Stryker vehicles that will adversely affect sensitive species and habitat. The Army also acknowledges significant negative impacts on air quality (caused by wind erosion by the off-road maneuvers of the Strykers), soil loss and soil contamination from training activities, lead and asbestos contamination caused by the construction and demolition of buildings, and destructive impacts on such cultural, historic, and archeological resources such as the Ke'amuku Village and sacred sites such as the Pu'ukohola Heiau.

The Army also proposes an increase in live-fire training. This poses a significant risk, according to the EIS, to workers and army personnel from unexploded ordnance. Environmentalists have drawn attention to the danger from unexploded ordnance that litters many former military sites in Hawai'i, as well as the military's poor record of cleaning up these sites. The EIS states that "only simulated biological agents" will be used and that hazardous materials do not pose a significant impact. There is also some concern about the potential toxic contamination from depleted uranium since the primary armament on Stryker vehicles is the Stryker Mobile Gun System which uses ammunition made from depleted uranium. The Army has claimed that depleted uranium weapons will not be used in training at Pohakuloa, but this has hardly eased the concerns of local residents.

While the military promises to do what it can to limit the adverse impacts from the training at Pohakuloa, it states that there is a practical limit to mitigation measures. The bottom line is that these adverse impacts and potential dangers are considered acceptable by the military.

The issue that always looms large in the background of this controversy is the very presence of the U.S. military in Hawai'i. For Hawai'ian sovereignty activists, the proposed expansion of the Pohakuloa Training Area is only the latest issue in a long history of U.S. military acquisitions of Hawai'ian lands-going back most notably to the 1875 "Treaty of Reciprocity" that ceded control of Pearl Harbor to the U.S. Navy. The military now controls 5 percent of land in Hawai'i, 22 percent of O'ahu (85,000 acres), and 4 percent of the Big Island (110,000 acres). Moreover, the proposed 23,000 acre expansion of the Pohakuloa Training Area is only about a quarter of the projected acquisition for the further development of the PTA.[5]

It's a sad irony that this latest land acquisition is almost the size of Kaho'olawe (28,766 acres), the "Target Isle" used for bombing practice for nearly 50 years after the Japanese attack on Pearl Harbor. The Navy finally officially ceded control of Kaho'olawe on November 11, 2003, after over two decades of protests by peace and Hawai'ian sovereignty activists. That campaign cost the lives of two Hawai'ian leaders, George Helm and Kimo Mitchell, who were lost at sea in 1977 in an effort to reach the island to protest the Navy's occupation and bombing of the island. Their deaths became an emotional turning point in the struggle for Hawai'ian rights. Now, just as the Navy finally cedes control of Kaho'olawe, the Army takes control of a similar-sized piece of land on the sacred slopes of Mauna Kea. It would be the largest military acquisition in Hawai'i since WWII.

For Hawai'ian sovereignty activists, Hawai'i is an occupied country, and the lands in question are "stolen lands." Though most Americans are either blissfully unaware or couldn't care less, the sovereignty activists appear to have international law on their side. For its part, the United States government has already admitted to the illegal overthrow of the Hawai'ian nation, by issuing a formal apology by joint resolution of Congress in November of 1993 in acknowledgment of the 100th anniversary of the coup that dethroned Queen Lili'uokalani. Although the United States was the first nation to formally recognize the sovereignty of the Hawai'ian nation in 1842, it was the U.S. Navy that provided the force that enabled American business interests to dethrone the Queen in January of 1893. In recent years, experts in international law have called into question the legitimacy of "statehood" and American military occupation of Hawai'ian lands by pointing out that there is no known record of the Hawai'ian Kingdom ever relinquishing its sovereignty.

Lessons from the war in Iraq

Since that cloudless Hilo day in October of 2002, the war in Iraq has unfolded in its all-too-easily predictable catastrophe. As the violence spirals out of control and any remaining vestige of a fraudulent justification of the invasion evaporate-that Iraq is better off from having been 'liberated' from a despotic dictator or that the world is safer from the threat of global terrorism-the American people have slowly come to the realization that it was all a terrible mistake. It reminds me of a story I read in the paper a number of years ago when I was living in San Francisco about a jumper who had somehow managed to survive his plunge from the Golden Gate. As I remember it the hapless one said his first thought after his ill-conceived leap was "Oops, that was a mistake." That's about where we are today as a nation after failing to heed the warnings of so many experts and hundreds of thousands of protestors around the world and instead following the Fox News and New York Times propaganda that cheered on the Bush Administration's leap into the abyss that is now the war in Iraq. All the head-scratching about what to do now, including the proposals of the Iraq Study Group, are nothing but the desparate flailings of one grasping at thin air after the ground has fallen away. The Bush Administration, of course, can only 'stay the course' and thus, with their sights now firmly set on 'surging' in Iraq and even more insanely on expanding the war into Iran, seems hell-bent on plunging the nation only further into the abyss.We've come to our "Oops" moment as a nation but we are still far from realizing just how devastating a mistake it was to launch this war.

Senator Inouye's editorial in support of the Stryker brigade in Hawai'i illustrates this point. The Senator writes: "Our country is at war. With the pace of operations in both Iraq and Afghanistan, our Army is stretched thin. We simply cannot afford to stand down any of our forces right now." After reminding us that he voted against the Iraq war, the Senator concludes that the "issue on the Stryker brigade should not be a referendum on the Iraq war." Perhaps it's the other way around, however, and that the Iraq war should be a referendum on the Stryker brigade.

Our country is at war-but it is a war that was completely unnecessary. The United States has the most powerful military force in the world, spending more on the military than all the other nations of the world combined; and yet the United States has demonstrated a propensity to use that great military force irresponsibly and that is one of the underlying causes and certainly not the solution to the problem of terrorism. We cannot defeat the problem of terrorism by participating in terrorism and that is certainly what we are doing when we engage in unnecessary wars of aggression. Perhaps the lesson that should be drawn from the war in Iraq is that it is time to stand down all of our forces right now. The best hope for a peaceful world is for the United States to pull out of Iraq, stand down its military force, and recommit itself to the rule of law among nations.

The United States needs to overcome its addiction to war and a good place to start would be to pull out of Iraq and to shut down the Army's plan to base a Stryker brigade in Hawai'i. As Kyle Kajihiro, program director of the American Friends Service Committee, puts it: "The Stryker Brigade in Hawai'i is an illegal and catastrophic project meant for use in an illegal and catastrophic war. The bitter history of the U.S. military in Hawai'i has demonstrated that if the military gets an inch, it will take a mile, or in this case, 25,000 acres of land. We refuse to allow our sacred 'aina to be used to perpetuate wars of aggression against other countries and peoples, or to let politicians send our loved ones to kill or be killed in such immoral and illegal wars."[6]

Perhaps a concern for the safety of our troops is not the primary reason behind Inouye's support for the Stryker brigade. Obviously any training that needs to be done before the troops are withdrawn can be done at existing facilities elsewhere. Kajihiro continues: "The 9th Circuit Court of Appeals said that the Army failed to answer the question 'Why Hawai'i?' and ordered the Army to complete a supplemental environmental impact statement (EIS) that considered alternatives. But it is unlikely that another EIS will be able to honestly answer such a question that is essentially political. Stryker Brigades are in Hawai'i and Alaska because of the power of Hawai'i's and Alaska's Senators to secure 'military pork'. Politicians cannot claim to be against the war while promoting the military expansion that drives wars."[7]

Perhaps the war in Iraq should be a referendum on the Stryker brigade in Hawai'i for there is a deep connection after all between the war in Iraq and the U.S. military's presence in Hawai'i-the war in Iraq is really only the latest symptom of the same problem that led to the overthrow of the Nation of Hawai'i in 1893. Time and again U.S. military power has been used not really for the defense of 'freedom' but for the expansion of corporate global interests.

War, if ever justified, should be an absolutely last resort. All peaceful means of resolving a conflict should be exhausted before resorting to war. There is every indication that the Bush Administration, acting to extend those corporate global interests, did everything they could to avoid any peaceful solution and manufacture a reason for war.

Perhaps the problem is that it is far too easy for the United States with its overpowering military force to go to war. There obviously needs to be some greater force of restraint that would make it much harder for the nation to engage in war. Part of the problem is that too few Americans really feel the cost of war. I imagine that if professional sports were banned while the nation was at war, our leaders would make every effort to find a peaceful solution. It might seem a ridiculous suggestion to make, but obviously if it is important enough to go to war then sacrificing professional sports should be no big deal. Conversely, if it is not worth sacrificing professional sports, then it is obviously not worth going to war. Can one imagine just how long the Vietnam War would have lasted if there could be no World Series while the nation is at war? Would the nation so easily have accepted the fraudulant arguments for war and leapt off the cliff into the hell that is Iraq if there could be no Super Bowls while the nation is at war?

The Watada Case

Unfortunately, as Americans love their bread and circuses so much, the only hope for any restraint on the reckless militarism of the United States might be in the example set by the rare courage of the soldier from Hawai'i, Lt. Ehren Watada, who faces court martial for refusing deployment to Iraq. The military judge presiding over the court martial has, however, denied the attempt by Lt. Watada's defense to 'put the war on trial.' The ruling by military circuit judge Lt. Col. John M. Head on January 16 denied the defense motion for a hearing on the "Nuremburg defense" thus preventing Watada's defense from presenting evidence on the legality of the war. The highest ranking soldier to refuse deployment to Iraq, Lt. Watada has argued in his defense that according to the Nuremberg Principles and U.S. military regulations he was under oath to follow only "lawful orders" and that the war on Iraq is illegal under international treaties and under Article Six of the U.S. Constitution. Lt. Watada's trial at Fort Lewis, Washington is set to begin on February 5. [8]

The ruling by Judge Head conflicts with the statement by U.S. Supreme Court Justice Robert Jackson, the chief prosecutor at the Nuremberg Tribunal, that the United States must be bound by the same rule of law used to prosecute the Germans: "If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."[9] The Nuremberg trials established that soldiers are not immune from prosecution for war crimes just because they were following orders. The judgement at Nuremberg means that the common view held by Judge Head and apparently many Americans that "soldiers like Lt. Watada can't pick and choose when to fight" is just flat out wrong. In denying the "Nuremberg defense" the military is simply setting aside the judgement at Nuremberg and ignoring Justice Jackson's explicit statement.

Lt. Watada's refusal to deploy to Iraq should call to mind Thoreau's startling words about the three ways one can serve one's country:

"The mass of men serve the state thus, not as men mainly, but as machines, with their bodies. They are the standing army, and the militia, jailers, constables, posse comitatus, &c. In most cases there is no free exercise whatever of the judgment or of the moral sense; but they put themselves on a level with wood and earth and stones; and wooden men can perhaps be manufactured that will serve the purpose as well. Such command no more respect than men of straw of a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others, -as most legislators, politicians, lawyers, ministers, and officer-holders; -serve the state chiefly with their heads; and as they rarely make any moral distinctions, they are as likely to serve the Devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and men, serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it." (Henry David Thoreau, "On the Duty of Civil Disobedience", 1848.)

Thoreau is clearly right that it is plainly wrong to think that the highest service one can give to one's country is to serve blindly with one's body, even if it means giving one's life. To serve without conscience, as a mere weapon of war, is really to forsake what is highest and most human within us. To force our soldiers to surrender their conscience is not only to ignore the judgement at Nuremberg, it is also treating our soldiers like horses and dogs. Sending our troops into an unnecessary and immoral war is in fact treating them far worse than horses and dogs.

The nation would be stronger not weaker if it recognized Lt. Watada's right to refuse deployment to an illegal war. If Lt. Watada's action is recognized as right, the nation would be far less prone to engage in unnecessary and immoral wars. In refusing deployment to Iraq Lt. Watada is serving the country with his conscience, and in so doing, is giving the highest service. If Lt. Watada goes to prison, as seems now very likely, he will be a powerful symbol of the injustice of the nation and its shame in ignoring the judgement at Nuremberg and refusing to remember Justice Jackson's counsel.

Timothy J. Freeman teaches philosophy at the University of Hawai'i at Hilo. He can be reached at freeman@hawaii.edu

Notes

1. U.S. Sen. Daniel Inouye, "Don't fence them in," Commentary, The Honolulu Advertiser, Sunday, December 17, 2006.

2. " Stryker base here is found illegal," The Honolulu Star-Bulletin, Friday, October 6, 2006.

3. "Judge Allows Stryker training to resume," The Honolulu Star-Bulletin, Saturday, December 30, 2006.

4. Army Transformation Environmental Impact Statement, Section 8:11 Cultural Resources, p.4.

5. See Haunani-Kay Trask, "Stealing Hawai'i: The war machine at work," The Honolulu Weekly, July 17, 2002.

6. Kyle Kajihiro, "Aloha 'Aina Statement on Proposed Stryker Training," DMZ-Hawai'i, December 18, 2006.

7. See also Jeffrey St. Clair, "The General, GM, and the Stryker," Counterpunch, April 22/23, 2006.

8. David Krieger, "The Iraq War Goes on Trial," Peace Journalism, January 17, 2007.

9. Robert Jackson, Minutes of Conference Session of July 23, 1945, International Conference on Military Trials : London, 1945.

Kangaroo udge bans war testimony

Judge bans war testimony
Published February 6, 2007

From combined dispatches

FORT LEWIS, Wash. -- The judge in the case against the first U.S. officer court-martialed for refusing to go to Iraq barred several scholars on international and constitutional law from testifying yesterday about the legality of the war.

Army 1st Lt. Ehren Watada, 28, of Honolulu, is charged with missing a movement for refusing to ship out with his unit, the 3rd Brigade, 2nd Infantry Division. He also faces charges of conduct unbecoming an officer for accusing the Army of war crimes, denouncing the U.S. for conducting an "illegal war" founded on "lies" and encouraging fellow soldiers to "throw down their weapons."
As the court-martial got under way, military judge Lt. Col. John Head refused to allow almost all defense witnesses to take the stand. Col. Head previously ruled that Lt. Watada's attorney, Eric Seitz, could not debate the legality of the Iraq war in court.

"It's become almost clear now that there is nothing for us to say in this courtroom," said Mr. Seitz, who called the decisions "comical" and "atrocious."

Lt. Watada's supporters -- including actor and anti-war activist Sean Penn -- and opponents gathered outside the gates of the Army base, waving banners and shouting. A few others demonstrated against him, including one man who carried a sign calling Lt. Watada a "weasel."
If convicted, Lt. Watada could receive four years in prison and a dishonorable discharge. He has requested that his case be heard by a military panel of officers, the equivalent of a jury. He pleaded not guilty yesterday.

Panel selection began in the afternoon, with the defense and prosecution questioning a pool of 10 officers. Seven were ultimately chosen to sit on the panel. Prosecutors are expected today to call at least three witnesses as they try to prove that Lt. Watada's speech amounted to misconduct.
On the first day of the court-martial at this Army base near Seattle, Lt. Watada explained that he saw the order to go to Iraq and support combat operations as illegal because the war itself was illegal.

"I had no other choice but to refuse the order," he said.

Mr. Seitz said he would call Lt. Watada and a character witness, an Army captain who has known Lt. Watada for about two years. The captain has been brought back from service in Iraq to testify, the lawyer said.

U.S. troops kept Iraqi brains in fridge as trophies

CITIZENS’ HEARING ON THE LEGALITY OF U.S. ACTIONS IN IRAQ:
The Case of Lt. Ehren Watada
JANUARY 20-21, 2007
Tacoma, Washington, USA

In an unprecedented two-day Citizens' Hearing held over January 20-21, more than 600 citizens joined a distinguished tribunal panel in listening to testimony about the legality of the US invasion of Iraq. The Citizens' Hearing was convened to present evidence that Lt. Ehren Watada would have presented in his February 5 court martial on the question that the military ruled barred from entry on Jan. 16 - the question of the Iraq War's legality. Lt. Watada has repeatedly asserted that because the Iraq War is illegal, it is his duty to refuse orders to deploy. He is the Army's first commissioned officer to take such a stand.

Panel Chair David Krieger asserted: "If Lt. Watada cannot get a full hearing about the war's legality in a military trial, then his case should at least be presented in the court of public opinion. This Citizens' Hearing was about giving Lt. Watada's position equal time."

Testifiers included experts in military policy, international law and war crimes:
* Daniel Ellsberg Military analyst who released the Pentagon Papers in the Vietnam War;
* Denis Halliday Former UN Assistant Secretary-General, coordinated Iraq humanitarian aid;
* Richard Falk Professor Emeritus of International Law at Princeton University;
* Antonia Juhasz Policy-analyst and author on U.S. economic policies in Iraq;
* John Burroughs Lawyers’ Committee on Nuclear Policy Executive Director;
* Benjamin G. Davis Assoc. Prof. of Law, University of Toledo; expert on law of war;
* Francis Boyle Professor of international law at Univ. of Illinois (video).
* Marjorie Cohn National Lawyers' Guild President; Thomas Jefferson law school (video)

Other testifiers were military veterans, and others directly affected by the Iraq War:
* Ann Wright Retired Army Colonel and State Department official;
* Darrell Anderson Army 1st Armored Division in Baghdad & Najaf; awarded Purple Heart;
* Harvey Tharp Former U.S. Navy Lieutenant and JAG stationed in Iraq;
* Geoffrey Millard 8 years in Army National Guard; awarded 13 medals;
* Dennis Kyne 15 years as Army medic & drill sergeant; trained in NBC warfare;
* Chanan Suarez-Diaz Former Navy hospital corpsman; Purple Heart and valor commendation;
* Stacy Bannerman Military Families Speak Out; author of "When the War Came Home"
* Eman Khammas Iraqi human rights advocate (video).

The format of the Citizens’ Hearing (convened at The Evergreen State College Tacoma campus) resembled that of a congressional hearing. A panel of citizens heard the testimony, examined witnesses, and will issue a fact-finding report. The Panel focused on the legality of the war, whether the invasion of Iraq constituted a "crime against peace,” whether the military occupation of Iraq constitutes a "crime against humanity," and whether individual soldiers have an obligation or duty to refuse unlawful orders that may lead to “war crimes.”

The 12-member Citizens’ Hearing Panel includes veterans of World War II, Korea, and Vietnam, as well as more recent veterans. It will include a military family member, Gold Star family member, and high school student (representing youth of military age). The Panel will also include a government leader, religious leader, labor union member, and health care worker. Half of the Panel members are military veterans.

Many of those who testified, most of whom would have been called to testify at the court martial if the judge had allowed that evidence, agreed that Lt. Ehren Watada had not only the right to refuse to deploy to Iraq in an illegal war, but had a duty to do so. Whether violations of the Nuremberg Principles or the US Constitution, some testifiers asserted that Lt. Watada should be recognized for his courage rather than undergoing a Court Martial.

Panelist Rich Moniak from Juneau, Alaska, whose son served in Iraq and Afghanistan, said during the deliberation: "The testimony presented to me highlighted how this war has failed the Iraqi people and placed our soldiers at risk of being accessories to war crimes."

Law professors Benjamin G. Davis and Richard Falk agreed that there are clear legal grounds on which the war is illegal. Falk, citing the sections of the US Army Field Manual, emphasized that international law is applicable to the behavior of US soldiers in a times of war and that soldiers have the duty to refuse unlawful commands. Davis sharply criticized the decision of the military judge to not hear Watada's full defense, stating that Americans have a right to have their defense heard.

The most compelling testimony came from former members of the US military, including five veterans of Iraq. According to Ann Wright, a former Army Colonel and US diplomat who served three and a half decades for the US government, Bush, Cheney, Rumsfeld and Powell created the preconditions that led to torture. She added: "We must
ensure that members of the US military are not put in the position of being ordered to carry out crimes against humanity."

Darrell Anderson, who received a Purple Heart for his service in Iraq, talked about a situation he was involved in when orders were issued to "shoot everyone" regardless of whether they were civilians, including children. He stated that they used, what he called, "excessive force." He said: "I realize it was my duty as a soldier to refuse this illegal war."

According to Chanan Suarez-Diaz, who also received a Purple Heart for his service in Iraq, the psyched up emotions among the troops resulted in US soldiers taking "trophies" of brain matter from Iraqis they killed and putting such in their refrigerators on base.

Immediately following the closing statements, the panel retired to discuss the testimony, consulting the US Army Field Manual, the Nuremberg Principles, and Article Six of the U.S. Constitution. They discussed the testimony until well into the night. Panelist Staughton Lynd, an attorney who holds a PhD in history from Columbia University, said: "The overpowering testimony from Iraq veterans highlighted the conditions that soldiers on the ground are facing."

Russell W. McNutt, a veteran of three wars: World War II, Korea, and Vietnam, stated: "I was exposed to a lot of knowledge. The soldiers who served in Iraq that we heard from were facing the dirty end of war. In urban warfare there are no definite boundaries, in different instances the enemy can be in front of you or behind your back. There is a lot of tension about who is a civilian and who is an insurgent. Under those circumstances, instantaneous decisions must be made in responding to threats. Time to exercise discretion is limited, but every effort should be made to ensure innocent bystanders are not injured through the use of deadly force."

Tribunal organizer Zoltan Grossman commented: "It is the command structure, rather than individual soldiers, that puts enlisted personnel in the position where they feel they have to commit war crimes to survive. The command structure is ultimately responsible for war crimes or crimes against humanity. For example, testimony indicated that the dehumanization of Arabs through the use of racial slurs comes from a systematic training process, not only from
individual soldiers' prejudices or fears."

Elizabeth Falzone, whose cousin was killed while serving in Iraq, reflected: "The Citizens' Hearing provided a real venue for citizens to hear from soldiers who are returning from Iraq. Hearing from them and more from family members is especially important with the "surge", and the repeat deployments that we're seeing."

The Citizens' Hearing and the distinguished panel will release the full report prior to Lt. Watada's court martial, including the panel's final statement and excerpts from the testimony. Interviews with panelists or testifiers can be arranged through Cindy Sousa at 206-734-5040 or cindy@sdmcc.org.

There are now video and audio clips on the web site:
http://www.wartribunal.org/testimony.htm, and more will be available.

Information about Lt. Ehren Watada's case, his February 5th Court
Martial and the mobilization leading up to it, is at http://www.thankyoult.org

TO CONTRIBUTE TO THE CITIZENS’ HEARING

TO DONATE ONLINE: The Church Council of Greater Seattle is the 501(c)3 fiscal agent for the Citizens' Hearing. To donate online, go to the Church Council of Greater Seattle: http://www.churchcouncilseattle.org Go to ‘give’ then click on “Donate Now Through Network for Good” button to reach the secure site. Then choose “Designate a Fund” and put “Citizens’ Hearing.”

TO DONATE BY MAIL: Checks can be made payable to CCGS, but be sure to put “CITIZENS’ HEARING” in the subject line. The CCGS will receive and disburse the funds (which meet IRS criteria as a tax-deductible charitable contribution). Checks should be mailed to: The Church Council of Greater Seattle, Attn.: Citizens’ Hearing, 4 Nickerson, Suite 300, Seattle WA 98109.

CONTACTS:
Media Requests:
Cindy Sousa cindy@sdmcc.org
Panel Editorial Staff:
Ellen Finklestein ehf5@yahoo.com
Elizabeth Falzone
Estella Villarreal
Zoltan Grossman grossmaz@evergreen.edu
Rob Crawford crawford@u.washington.edu
Larry Mosqueda lmosqueda@comcast.net
Audio/Visual and Web Design:
activ8media@yahoo.com

"The best way to protect the lives of courageous young people who serve in the military is to avoid war-making itself. One cannot kill an idea with a gun, but only with a better idea. If people believe that law is better than war, they must do all they can to enhance the power of law and stop glorifying war."

--Nuremberg Trials prosecutor Benjamin Ferencz

"The Nuremberg judgment, encoded into international law, is sharp and clear. Aggression is the 'supreme international crime,' differing from others in that it encompasses all the evil that follows; all the evil. The US-UK invasion of Iraq is a textbook example of aggression, as defined by US Justice Robert Jackson in opening the Tribunal, also encoded into international law. Justice Jackson's final words were also sharp and clear. We are handing those convicted at Nuremberg a "poisoned chalice," and if we sip from it, we must be judged by the same principles, or else the proceedings are no more than farce. One prime responsibility of an aggressor is to hold the perpetrators accountable. If state power is unwilling to meet this responsibility, it falls to others to do so: to the citizens of the country carrying out the crimes, more than any others."

--Professor Noam Chomsky

Two Charges Two Charges Dropped Against Watada: No Jail Time For Reporter Sarah Olson

Watada Agreement Means Journos Won't Have to Testify in 'Antiwar' Case



Published: January 29, 2007 11:00 PM ET
HONOLULU The U.S. government agreed to drop two counts of conduct unbecoming an officer from its case against the Army lieutenant who called the Iraq war illegal and refused to deploy.

1st Lt. Ehren Watada, whose court-martial is scheduled Feb. 5, still faces a maximum of four years imprisonment if he is convicted of missing movement for his refusal to deploy last June and two remaining counts of conduct unbecoming an officer for comments made at a Veterans for Peace Convention in Seattle.

The two counts dropped Monday carry a maximum of two years in prison. They stem from comments he made to reporters in June explaining why he refused to go to Iraq and why he was challenging the Bush administration's reasons for going to war.

In exchange, Watada's attorney Eric Seitz agreed that two subpoenaed reporters will not have to testify. They are Honolulu Star-Bulletin's Gregg Kakesako and freelance reporter Sarah Olson.

"We will stipulate and agree to the testimony that the reporters would have otherwise provided and the accuracy to the statements that are attributed to my client," said Seitz, of Honolulu.

Seitz said Watada's action shields the journalists from the "heavy handedness of the government."

"While we don't think any charges should have been filed at all for simply exercising free speech, we are pleased with the government's willingness to reduce Lieutenant Watada's potential sentence by two years," he said.

Seitz is scheduled to leave for Fort Lewis, Washington on Tuesday to attend Watada's trial next week.

"This is not a justice proceeding but a disciplinary proceeding," he said. "Really, the only thing the Army is interested in here is what kind of punishment to mete, not whether Lieutenant Watada is guilty or innocent of the charges.

"They've already determined, basically, his guilt."

Military judge Lt. Col. John Head ruled Jan. 16 that the 28-year-old Hawaii-born soldier cannot base his defense on the war's legality.

Head also rejected lawyers' claims that Watada's First Amendment rights shielded him from charges stemming from his criticism of the war. Head said there are limits to the free-speech rights of military personnel.

Watada planned to argue that the war was illegal because it violated Army regulations that wars must be waged in accordance with the United Nations Charter.

Fort Lewis spokesman Joseph Piek said he had "no indication whatsoever" that any full settlement could be reached before trial.

"This is still a serious case of an officer who refused orders to deploy," he said. "For an officer to violate military law and refuse orders such as these is something the military takes very seriously."

Seitz said the Army wanted Watada to plead guilty to at least two counts of conduct unbecoming an officer and missing movement in return for a sentence that would included a dishonorable discharge and 18 months in prison.

"We did not feel that was appropriate and there have been no further discussions since the government made that position known to us," he said.

Seitz said he has offered three months of confinement and dishonorable discharge, but the Army did not indicated any willingness to go along with that.

Watada refused to go to Iraq last June with his unit, the 3rd Brigade, 2nd Infantry Division, after deciding the war was illegal. He has said he would be willing to serve in Afghanistan or elsewhere.

Watada points out our responsibilities

Sunday, January 28, 2007
Joe Copeland
P-I COLUMNIST

If Army 1st Lt. Ehren Watada has some extra hope this morning about ending the Iraq war, Americans can take a little credit. Toward the end of last week, the 28-year-old officer who courageously refused orders to go to Iraq was hoping for good turnouts in anti-war events planned for Saturday in Washington, D.C., and elsewhere.

After four years of quiescence in the face of a wrongly launched war that has gone from "Mission Accomplished" to what a top commander finally confessed is a "dire" situation, Americans ought to demand a change of course. Change requires more public involvement than voting out a few congressional incumbents. National protest organizers hoped for up to 300,000 people to march Saturday.

Watada has had the courage to point out citizens' responsibilities. As he awaits a court-martial beginning Feb. 5 for acting responsibly and refusing to serve in what he regards as an illegal war (he volunteered to go to Afghanistan instead), Watada is allowed to travel up to 250 miles from Fort Lewis. He has been telling groups in Seattle, Tacoma and elsewhere that citizens have the power to end the war.

His honesty isn't surprising, and asking people to take responsibility doesn't at all go beyond what Watada expects of himself. When most of the country was still following President Bush's post-Sept. 11 admonitions to go shopping, Watada decided to enlist in a delayed-entry program while he wrapped up studies at Hawaii Pacific University.

As we went to war, Watada believed the false talk about imminent danger to the United States and weapons of mass destruction. His views changed as he read up on Iraq in preparation, as he put it, to be a better leader of troops under his command. Instead, the growing knowledge led him to become the only commissioned officer known to refuse Iraq duty, acknowledging from the start that he might have to carry the imprisonment that the Rev. Martin Luther King Jr. and other practitioners of civil disobedience felt was their responsibility to accept in calling attention to wrongful government policy. In Watada's case, the prison time could be as much as six years.

Watada talks about a small group that regularly protests in Seattle. But, he asks, "Where are the other 600,000 people in Seattle?"

More than anything, I wanted to know from Watada what he thought others of us should be doing. He starts with where his journey began: learning about our country's actions. Then there is the matter of doing something. Action certainly started with the November elections (although, as Watada points out, the turnout means only a limited number of people sent any message).

Without more pressure on national leaders, it's not safe to assume they will change the country's course. The Iraq Study Group's bipartisan recommendations to start withdrawal planning got tossed. Generals seem willing to complain publicly about missteps, but only after they have their pensions. Unless better in the way of preventing needless deaths of U.S. troops and Iraqis is demanded by the public, members of Congress likely will settle for -- at best -- resolutions of disapproval for the war's escalation. Non-binding resolutions will just draw snarling dismissals from Vice President Dick Cheney. But maybe members of Congress think they can satisfy voters by saying, see, we told the president what a mistake he was making.

Watada said, "No longer can we say, 'Oh, the Democrats will take care of it. Or, the peace activists will take care of it' " and simply go about our lives.

Staffers to politicians have told him that their bosses listen to the public. "But you know what, if it is the same person calling over and over," the call is very easy to dismiss, he said.

He thinks more individuals need to speak up, and organizations -- churches, labor unions, student groups and faculties -- need to lend their voices. And he thinks the public should tell big donors to speak on their behalf and demand the media go beyond their "lazy and inadequate attempt to cover the news."

As someone occasionally shocked by the behavior of fellow Vietnam war protesters, I wondered how a conscientious young soldier of this generation looked at street demonstrations: Will protest lead to the kind of divisions and lack of regard for U.S. troops seen during Vietnam? "That is why knowledge is first and foremost," Watada said. "We need to come together as Americans." We need to understand, he said, that simply being there is inflaming rather than improving Iraq.

Watada is idealistic enough to expect a lot of people to act. He has been disappointed in the amount of attention his case has received in most of the media. But, he said, "I think my stand and my case have raised the level of awareness and thinking about what we are doing in Iraq and what our soldiers are being forced to do."

Beyond knowledge, though, is action, whether it is writing a letter, making a call or getting out of our chairs to make our views known.

By JOE COPELAND

Joe Copeland is an editorial writer and member of the P-I Editorial Board. E-mail: joecopeland@seattlepi.com.