Lt. Watada Mistrial Clear Victory for Iraq War Resister

LT. WATADA MISTRIAL CLEAR VICTORY
By Jeff Paterson

Courage to Resist
February 8, 2007

FORT LEWIS, WA -- 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 [Emeritus] of International Law and Practice,
Princeton University; Michael Ratner, president of the Center for
Constitutional Rights; former U.N. 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
morale, 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 morale 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 burdens 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 of
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 intellectually to 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 by 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 cannot 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 pled 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 ruling with extremist
vigor, this was simply not acceptable. One last time, “What does deploy
mean to you?” asked Judge 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, “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. 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.

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
to 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