Conduct Charges Might Help Watada's Defense

By Christian Hill
The Olympian

Friday 05 January 2007

Fort Lewis - Army prosecutors might have unwittingly aided the defense of the Fort Lewis officer they're trying for his refusal to deploy to Iraq.

Attorneys for 1st Lt. Ehren Watada want his jury to hear next month from experts that the war violated U.S. and international law in their effort to win his acquittal.

During a four-hour pretrial hearing Thursday, one of Watada's attorneys, Eric Seitz, requested that the judge hold an evidentiary hearing about allowing that defense.

The lead prosecutor, Capt. Daniel Kuecker, argued that under the "political question" doctrine, only the executive or legislative branch can decide the war's legality. Under that doctrine, the courts defer to those branches' jurisdiction. Kuecker told the judge that Watada's motive is irrelevant to the case.

Watada, 28, is charged with missing movement and four specifications, or counts, of conduct unbecoming an officer based on statements he made against the war.

The specifications are based on Watada's statements during speeches or interviews.

"The wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it's a contradiction to the Army's own law of land warfare," he said during one interview cited by prosecutors as evidence. "My participation would make me party to war crimes."

The judge, Lt. Col. John Head, told prosecutors that he was not inclined to grant the evidentiary hearing, but "they opened the door for him allowing it by prosecuting his statements."

"It would not be relevant," he said. "Some of those statements have become relevant by the sheer nature of how the government has charged this case."

Head said he would issue a written ruling on the request later.

Kuecker said he disagrees with the defense counsel's contention that the war is illegal.

"We don't believe every legal scholar would come down on that side," he said.

Seitz also asked the judge to dismiss the conduct charges because Watada's statements are not conduct that can be prosecuted under that section of military law.

"He should not face another four years of penalties because he chose to explain his reasons for opposing the war," he told the judge.

Kuecker argued that Watada's statements were offensive of the military and prejudicial to good order and discipline within the ranks.

If convicted on all counts, Watada faces up to six years in prison and dismissal from the military.

Watada's court-martial is scheduled to begin Feb. 5. The case will be heard by a panel of at least five officers.

He had offered to deploy to Afghanistan or serve in some other military capacity when he learned he was headed to Iraq in late 2005.

He offered to resign his commission, but the Army refused to accept it, Seitz said.

Watada, a native of Hawaii, was a fire-support officer for 5th Battalion, 20th Infantry Regiment, but since has been transferred to a desk job with another unit.



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Watada Supporters Vocal at Today's Hearing
KGMB TV

Friday 05 January 2007

Ehren Watada didn't say much after the hearing.

"I'm sorry at this time I am not going to make any comments," he said.

But his supporters here at home had a lot to say.

"This is an illegal and an immoral war," said Watada Supporter Carolyn Hadfield. "And it's a just and courageous thing to refuse to go."

But that's an argument Watada may never be able to make in his court martial proceedings. That's because when his attorney asked permission to submit evidence at trial that the war is illegal the judge's response was less than favorable.

Eric Seitz, Watada's attorney, said, "He indicated to us that he is not very persuaded and that it is unlikely he is going to allow us to pursue those defenses at trial."

A potential victory for the prosecution, but they were also dealt a blow today. Prosecutors were barred from presenting 8 witnesses in today's hearing. All would have testified to hearing anti-war statements from Watada. The 28-year-old faces charges of conduct unbecoming an officer for those words, something his attorney says should be dismissed.

Seitz said, "The bulk of the time was spent on our motions to dismiss the speech related charges based upon the fact we contend that Lieutenant Watada was really exercising his rights to free speech and can't be prosecuted for doing so."

Sometime next week the judge will decide the parameters of the case. But at a press conference with Washington media, Watada's lawyer expressed doubt his client could get a fair trial in a military court.

Seitz said, "We obviously enter into that forum with some apprehension, but we don't have any other place to go. We've been pulled in there and we are going to have to try the case there, so we'll do the best we can do to try and get the fairest result we can obtain."

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