Putting the War in Iraq on Trial?
It's not clear yet how Lt. Ehren Watada's court-martial will proceed. At a pretrial hearing last Thursday at Fort Lewis, Wash., Watada's attorney, Eric Seitz, requested an evidentiary hearing to defend Watada's rationale for not boarding a plane to Iraq last June. The 28-year-old officer chose not to deploy because of his belief that the war is illegal, and if an evidentiary hearing were granted, Seitz would marshal legal, academic and military experts to argue the case.
Army prosecutors, including Capt. Daniel Kuecker, say Watada's motives are irrelevant. The judge, Lt. Col. John Head, however, said, according to a report in the Olympia, Wash.-based paper the Olympian that he was not inclined to hold an evidentiary hearing initially, but "[the prosecution] opened the door for him allowing it by prosecuting his statements." The judge will most likely issue his decision later this week.
When he didn't board the plane last June, Lt. Watada incurred the charge for missing movement. But the controversy surrounding his case stems from the more nebulous charge of conduct unbecoming an officer.
"Today, I speak with you about a radical idea," Lt. Watada said to an audience of approximately 350 people at the Veterans for Peace Conference in Seattle, Wash. last August. "The idea is this: that to stop an illegal and unjust war, the soldiers can choose to stop fighting it."
He is now charged with four counts of conduct unbecoming for statements he made to reporters and to the audience at The Veterans for Peace Conference. If convicted on all charges, Watada faces up to six years in prison and dismissal from the military.
And while Watada's First Amendment freedoms are at stake, the prosecution's subpoenas -- of Sarah Olson, who covered the story for Truthout.org, Greg Kakesako, the Honolulu Star-Bulletin reporter, and Dahr Jamail, a journalist who videotaped Watada's Veterans for Peace speech -- undermine the fundamental character of a free, independent press.
The prosecution has also subpoenaed anti-war activists Phan Nguyen of the Olympian Movement for Peace and Justice, and Gerri Haynes of Veterans for Peace.
"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," Sarah Olson wrote in a recent article for Editor and Publisher. "In the case against Lt. Watada, the U.S. Army is attempting to use a journalist as an investigative tool for their prosecution."
"There is something especially chilling about the U.S. military reaching beyond its traditional authority to compel a nonmilitary U.S. citizen engaged in news gathering to testify in a military court, simply to bolster a court-martial case," argued the L.A. Times editorial page on Jan. 8. "There is no security interest at stake, and no matter of national urgency."
But the prosecution disagrees. Watada's criticisms of the deceitful justifications for the war challenge respect for the office of the presidency, they argue.
"He was talking to veterans, and he was just repeating a literary theme from World War I -- that if soldiers wanted to end war, they could stop fighting it," Seitz told WireTap. "What he was saying was that 'I am taking action based on my own conscience, and other people need to decide on their own conscience, too.'"
In the United States Code, Article 133 stipulates that "any commissioned officer � who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."
But according to an amicus brief filed on behalf of the United States v. Watada by the American Civil Liberties Union of Washington, most persons charged under Article 133 have engaged in "socially prohibited behavior where the defendant is satisfying his or her own desires without any pretense of assisting others or behaving ethically." Instances include officers who have cheated on an exam, failed to pay a debt or publicly associated with known prostitutes.
"In Lt. Watada's case, the question is whether it is somehow reprehensible to express serious legal and moral opinions about matters of undeniable public importance. � Lt. Watada simply described his own careful assessment of his obligations under domestic and international law," the ACLU of Washington argued in its friend of the court brief.
Seitz argues that the conduct-unbecoming charges raise significant constitutional issues, and were given in retaliation for Watada's refusal to deploy to Iraq.
"If the court holds that political commentary on the legality of the war can be punished under Article 133, it raises the question of whether Article 133 is constitutional," Seitz said, pointing out that Watada's speech never turned into the direct action of others, that Watada's statements were made while he was off duty, and that Article 133 may be overly broad.
"The only possible purpose for [these charges of conduct unbecoming] is to aggravate [his] punishments, and to deter others [in the military] from making such statements," Seitz told WireTap.
That this court-martial is under intense public scrutiny at a time when there is rising opposition to the war is also a major factor in the way Feb. 5 plays out, Seitz added.
At the moment, Bush's troop surge options are being denounced by House Speaker Nancy Pelosi and Senate Majority Leader Harry M. Reid. And in the coming weeks, a major anti-war protest will take place in Washington, D.C., on Jan. 27, and The Appeal for Redress, a three-sentence statement calling for the prompt withdrawal of troops from Iraq, which was signed by nearly 1,000 soldiers, many of whom are on activeduty in Iraq, will be delivered to Congress on Jan. 15.
Meanwhile, Ehren Watada's mother, Carolyn Ho, has been in Washington, D.C., too, trying to build up support from members of Congress. Last week, she received a letter of support from Maxine Waters, D-Calif., who is the chair of the "Out of Iraq" caucus. But according to the Washington Post, the Feb. 5 court-martial date comes at an inopportune time. Following the holidays, staffers have little time to prepare to help Watada. Before last week, though, The Friends and Family of Ehren Watada were on a speaking tour around the country, rallying support and raising money for his cause.
For now, Seitz hopes for an evidentiary hearing, where the defense could argue that the war in Iraq is in violation of U.S. and international law. If the experts he would call to testify -- among them, Richard Falk of Princeton University and Rep. John Conyers, D-Mich. -- could prove the illegality of the war, Watada may have hope for a full acquittal or at least a reduced sentence.
Lt. Watada's court-martial is scheduled to begin Feb. 5. Stay tuned for continued coverage from WireTap.
Jeanine Plant is a frequent contributor to WireTap and a freelance writer living in Brooklyn, N.Y. Photograph by Jeff Paterson of Courage to Resist.
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