FORT LEWIS, 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.
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 approved this legal "mulligan."
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, u2018I 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 u2018impressed' would be u2018surprised'?" "Yes, sir," White replied. Amazingly, she was allowed to remain on the jury.
Seitz later 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.
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 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.
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 a day 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 jeopardy being attached, despite Seitz's warning 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, 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."
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 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 the courtroom.
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.
February 12, 2007