COUNTERING MILITARY RECRUITMENT
Articles: Leaving Military: General
Big Win for Watada: A Study in Courage and Honor
Bill Simpich, Truthout
November 11, 2007
On
Thursday, November 8, Hon. Benjamin Settle, a federal court judge,
issued a preliminary injunction halting any further court-martial
proceedings of 1st Lt. Ehren Watada and effectively ruling against the
Army on virtually every issue in the case. This injunction not only
extends the stay until the conclusion of the habeas corpus proceedings,
but also addresses the specific request for relief from further legal
proceedings, stating, "the remedy sought by Petitioner, while rare, is
appropriate."
Although the Army issued a press release claiming to
"look forward to the opportunity to further explain to the District
Court judge the full extent of the protections and safeguards that are
afforded to a military accused," (Seattle Times, 11/9/07), anyone who
glances at the court ruling will agree that the Army's only lingering
hope is to appeal this ruling to the Ninth Circuit Court of Appeals.
Judge Settle wrote "for several reasons ... it is
likely that [Lt. Watada] will succeed on the merits of his double
jeopardy claim" (Order, p. 22; a copy of the order is attached). The
court held that the military judge acted "irrationally, irresponsibly,
precipitately" (Order, page 31) in failing to consider feasible
alternatives to a mistrial, and there was no good reason to stop the
proceedings.
This ruling came after the repeated refusal of the
military appeals courts to free Lt. Watada of the burden of a second
court-martial. Lt. Watada's attorneys have consistently argued that the
military should not be allowed a "do-over." The military judge halted
the first court-martial in the wake of admissions by prosecution
witnesses regarding Lt. Watada's integrity and statements that Lt.
Watada's decision not to deploy was an act of conscience.
Prior to the initial court-martial, Lt. Ehren Watada
told the Army that he was willing to accept a six month sentence for
his refusal to lead his unit to fight in Iraq, explaining that he could
not violate the oath he took as an officer to defend his country
"against all enemies, foreign and domestic", and that to fight in Iraq
would constitute a war crime.
The Army responded by trying to make an example of
Lt. Watada by demanding a six-year sentence. They took away his
defenses, one by one. They continued to add extra charges.
Finally, on the day of trial, as I watched the
proceedings in the company of soldiers, media, and other civilians, the
military judge Lt. Col. John Head took away Lt. Watada's final expert
witness, eliminating critical testimony on military law and tradition
and making a fair trial for the lieutenant virtually impossible. To
make matters worse, Judge Head allowed the government to call a
rebuttal witness, Professor Richard Swain, even though there was no
longer any expert witness to rebut.
This was to prove to be the Army's undoing. After
Lt. Watada's superior officers gave unexpectedly favorable evidence on
the lieutenant's integrity, Professor Swain testified that if officers
such as Lt. Watada make the determination that they are being asked to
commit war crimes "they have to be right. If they're not right, they
have to expect to be held accountable."
Following the testimony of Professor Swain, the
prosecutor, Capt. Van Sweringen, was overheard to have said to one of
his aides in the courtroom that "Dr. Swain was a disaster."
The prosecution rested its case at the end of the
day on February 6. The stage was set on the following morning for Lt.
Watada to take control of the proceedings with a dramatic account of
why he reasonably believed that the Iraq War was illegal. It was clear
to everyone in the courtroom that the defense had made its essential
points during the presentation of the government's case, and that Lt.
Watada was going to command the attention of the gathered mass media.
Lt. Watada's attorney then provided a proposed jury
instruction to Judge Head offering this argument: that it was
reasonable to believe that the Iraq War was illegal. It was apparent
the judge did not want Lt. Watada to use this trial as his pulpit. He
took a prolonged recess, while courtroom observers tapped their feet.
Upon his return, Judge Head seized on this proposed
jury instruction and argued that there was confusion about a pretrial
agreement that governed the evidence to be used at trial, claiming that
Lt. Watada had the mistaken impression that he had the defense of
"reasonable belief that the war was illegal" as he had "confessed" to
his guilt! Judge Head concluded that due to this supposed confusion,
the trial had to stop.
In my view, Judge Head's order was not only
nonsense, but intentionally designed to prevent Lt. Watada from
challenging the Iraq War to the mass media in a dramatic fashion. It
was identical to the treatment that Fathers Phil and Dan Berrigan and
their allies have received in American courts for the last forty years
in their challenges to American military policy by committing minor
property offenses by symbolically "beating swords into plowshares." In
politically sensitive cases, judges go to great lengths to prevent
criminal defendants from explaining why they resisted unlawful
government acts.
Judge Settle's order scolds Judge Head like a
schoolboy in disgrace. The order carefully illustrates that no one was
confused about the pretrial agreement. The record reflects that the
government and the defense agreed on that point. Nor did Lt. Watada
ever "confess" his supposed guilt. To drive the point home, the order
adds that even confusion or confession would not have been grounds to
stop the trial. The order goes on to emphasize that there was no
manifest necessity to stop the trial, and that Judge Head never weighed
any feasible alternatives.
The Army made an example of Lt. Watada. The
lieutenant is feared by Judge Head and the Army prosecutors. He
portrays the courage it takes to honor one's oath to defend the
Constitution.
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