Lt. Watada Mistrial Clear Victory
by Jeff Paterson
by Jeff Paterson
WA – In a complex and confusing turn of events, 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.
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 approved this legal "mulligan."
The basis for
which, and the judge’s motives, may likely be a matter of debate
for some time.
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.
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."
Court-Martial of Lt. Watada
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.
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
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.
noted that he was satisfied with the panel of jurors finally seated
for the court martial, given the nearly impossible challenge of
choosing an impartial panel among Fort Lewis career Army officers.
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
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.
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.
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."
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.
noted that Lt. Watada "was sincere" in his beliefs, Cpt.
Van Sweringen interrupted his own witness to declare, "Sincerity
disapproved Lt. Watada’s resignation in the hope that Lt. Watada
would eventually change his mind, and "not make a young man’s
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
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."
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.
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.
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.
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.
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
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."
that resignation would be the last step for an officer with an irresolvable
moral conflict. On that note, the prosecution rested Tuesday afternoon.
to a Mistrial
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.
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."
"Illegal War" Debate Created Catch-22
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.
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
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.
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.
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 his
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.
Comes to the Defense
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.
"As far is it goes, it was a stipulation of facts (not a confession).
That has always been our position."
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."
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
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."
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.
Granted Over Defense Objections
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 a day of testimony
– all based on a voided stipulation already studied by the seated
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 jeopardy being attached, despite Seitz’s
warning to the contrary.
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
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."
U.S. v. Watada Questioned
It is unlikely
that Judge Head fully realized what he initiated, unless he was
actually trying to toss the case on a technicality. 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."
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
One thing is
clear: Over one thousand people from around the Pacific Northwest,
the nation, and even the world, converged on Fort Lewis to rally
for Lt. Watada against any real hope that he would not be imprisoned
by the weekend. This unprecedented mobilization based and a national
organizing effort launched this last June in support of Lt. Watada
and military resisters, undoubtedly contributed to the outcome in
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.
[send him mail] is an Oakland,
California-based organizer for Courage
to Resist, an organization dedicated to supporting military
war objectors. As an active duty U.S. Marine artillery controller
in August 1990, Corporal Paterson was the first military service
member to publicly oppose and face court martial for refusing to
deploy in support of Operation Desert Storm. As Lt. Watada, Cpl.
Paterson was also represented by civilian attorney Eric Seitz.
© 2007 LewRockwell.com