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TechnoratiWatada's Double Jeopardy
The double jeopardy clause of the US Constitution ensures that no American can be tried twice for the same offense. But at a time when our civil liberties are rapidly eroding, a drama is unfolding in Washington State over whether that constitutional protection applies to a US soldier.
After his February court-martial ended in a mistrial, Lt. Ehren Watada, the first commissioned officer to refuse to serve in Iraq, seemed certain to face a second court-martial on October 9 at Fort Lewis, an Army base near Tacoma. Three military courts had rejected Watada's claim of double jeopardy, finding no abuse of discretion by the military judge in declaring a mistrial. But in an unusual civilian intervention in a military legal process, US District Court Judge Benjamin Settle issued a last-minute stay October 5 in Tacoma, temporarily blocking the trial.
Settle will hear Watada's double jeopardy claim October 19. Nationwide Iraq Moratorium protests are scheduled for that day, many of which will feature Watada's case and his stand against the war.
Watada has consistently maintained that the Iraq War is illegal under international law and the US Constitution, and that to participate in it would make him guilty of a war crime. At the video press conference on June 7, 2006, in which he first announced his refusal to go to Iraq, he explained, "It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong but a horrible breach of American law."
Watada was tried in a military court in February for failing to deploy and conduct unbecoming an officer for his statements opposing the war. After the prosecution had completed its case, the military judge, Lt. Col. John Head, intervened, declared a mistrial and ordered Watada to be retried. [See our report on that trial here.]
The Fifth Amendment to the Constitution states that no person shall be "subject for the same offence to be twice put in jeopardy of life or limb." As the Supreme Court explained in a seminal 1978 double jeopardy case, United States v. Scott, "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence."
Like the erosion of the right to habeas corpus, the denial of the protection against double jeopardy represents one more Bush-era encroachment of the all-powerful state on basic human rights and the rule of law.
While the legal arguments about double jeopardy are quite complicated, Watada's lawyers are convinced their arguments are strong. They wrote in their emergency motion, "This is a remarkably clear case of an egregious violation of the double-jeopardy clause." Judge Settle's opinion states, "The Court has not been presented any evidence showing that Petitioner's double jeopardy claim lacks merit. On the contrary, the record indicates that Petitioner's double jeopardy claim is meritorious."
Growing Support
Watada's term of military service was scheduled to expire on December 4, 2006. He has not been discharged, however, because of the pending court-martial charges against him. If convicted, he could face up to six years in prison.
In an October 4 editorial, the Seattle Post-Intelligencer declared, "However the defense appeals turn out, we think there is a case for letting Watada leave the Army without further ado."
There's no evidence yet that the Army is listening. But Judge Settle's ruling has energized Watada's supporters. They have formed a new national steering committee with representatives from regions around the country. Michael Wong, a military resister during the Vietnam era who took much of the initiative to mobilize the current wave of support, explained in an interview, "We have three demands. The first is to bar the Army from trying Ehren Watada again. The second is to drop all charges against him. The third is to let him leave with an honorable discharge."
Wong asks peace groups to incorporate Watada's defense in local and national demonstrations and encourages individuals to write letters to the editor and articles to educate the public about the case. "They had a chance to try him once. They blew it. The prosecution's case was so weak that declaring a mistrial may have been the only way that Judge Head could save the Army from humiliation and defeat," he said. "They should just drop the charges and let him go."
San Francisco organizer and lawyer Bill Simpich has been active in both the Iraq Moratorium and the Watada defense. He is working to make Watada's stand against the war a central theme of the monthly Iraq Moratorium Day October 19. "The Iraq Moratorium and the Watada Support Campaign are moving tightly with plans to get the word out to stop the war now so soldiers like Lieutenant Watada aren't forced to choose between supporting the Constitution and going to prison," he said.
Simpich said the signature event of the Iraq Moratorium Day in the Bay Area will be a dramatic end-of-workday event outside the downtown office of Senator Dianne Feinstein, co-sponsored by the Iraq Moratorium and the Watada Support Committee. Community events and leafleting at transportation hubs such as BART and CalTrain will also link the Moratorium and the Watada case.
In Washington, activists plan demonstrations and a counterrecruiting effort outside a Seattle-area recruitment center.
"The US government and military is waging two illegal wars and is actively planning for a third," said organizer Gerry Condon, referring to increasing hostilities between the United States and Iran. "It is more important than ever that we support GIs who follow their own consciences and obey international law."
The Watada case is also drawing international attention. Amnesty International issued a statement October 5 warning that a guilty verdict would make Watada "a prisoner of conscience who should be immediately and unconditionally released."
Watada's case is different from typical conscientious objector cases because the US military recognizes as conscientious objectors only those who oppose war in any form. Watada did not apply for conscientious objector status because he said as a soldier he would be willing to fight in a war--unlike Iraq--that was necessary, legal and just.
Amnesty International argues in its statement that the right to refuse to perform military service for reasons of conscience, thought or religion is protected under international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR)--treaties that have been ratified by the United States.
Watada's Impact
The Watada case has presented a serious challenge to the military. As Daniel Ellsberg put it, "Lt. Ehren Watada--who still faces trial for refusing to obey orders to deploy to Iraq, which he correctly perceives to be an unconstitutional and aggressive war--is the single officer in the United States armed services who is taking seriously...his oath."
Despite strong traditions in the military against publicly criticizing the government, more than twenty retired US generals have criticized the Commander in Chief about Iraq or spoken out against the war. In 2005, five retired military panelists discussed the war at Hampden-Sydney College in Virginia. Retired Brig. Gen. John Johns told the San Diego Union-Tribune, "Four out of five of us retired military panelists there said it was a moral duty for us to speak out in a democracy against policies which you think are unwise." One of the participants, retired Lt. Gen. Robert Gard, said, "When you feel the country--to its extreme detriment--is going in the wrong direction, and that your views might have some impact, you have a duty to speak out."
In a video press conference announcing his refusal to deploy to Iraq, Watada noted, "Although I have tried to resign out of protest, I am forced to participate in a war that is manifestly illegal. As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order."
While evidence of the war's illegality was barred in Watada's court-martial, his position is grounded in military law and doctrine. At a National Press Club luncheon February 17, 2006, just a year before Watada's court-martial, Gen. Peter Pace, then Chairman of the Joint Chiefs of Staff, was asked, "Should people in the US military disobey orders they believe are illegal?"
Pace's response: "It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral."
The Army wants to sentence Ehren Watada to six years in the brig for the crime of trying to fulfill that absolute responsibility.
Legal scholar Brendan Smith and historian Jeremy Brecher are the editors, with Jill Cutler, of "In the Name of Democracy: American War Crimes in Iraq and Beyond" (Metropolitan/Holt, 2005) (www.americanempireproject.com), and the founders of www.warcrimeswatch.org.
© 2007 The Nation
17 Comments so far
Show AllJohnR: Beautifully stated.
Lt. Watada is in the same category as the Buddhist monks standing up to the military junta. He is acting from the perspective of an individual who has reached the highest level of moral development. We should all be so heroic. I should be half as heroic myself. Then maybe I could feel better about my day. I hope he can inspire more of us to do more in the realm of civil disobedience. It's too the MSM doesn't even mention this case. They're too busy showing Ellen Degeneres giving away a dog to a good home, thereby violating some assinine provision in a contract.
I know it's not my life but, if he does jail time for standing up for his rights,he will set something in motion that could help lots of American soldiers.
I hope he is able to take this tough time in his life with the same bravery he is showing now.
I hope that he is allowed to set a precedent and insure that future lives can be saved by standing up for what is right.
I hate that Lt.Watada is even in this position, but I hope that his brave soul helps those that wish to follow in his foot steps.
~Future~
LT.Watada is a true American. He thinks for himself and stands by his convictions. If we had more like him we would be a great country instead of an imperial power in decline.
Hoa binh
Lt. Watada's case is being held up, in my humble opinion, to keep the Generals hanging under a sword of Damaclese. There are reports that many in the Pentagon are really questioning what the top most chain of command wants done to Iran vs. what should be morally, legally, and militarily done by those same Generals.
Nurenburg, et. al. seems to be a true patriot's decision that many are dealing with. A Messiah in the whitehouse, may not be seen as a messiah by all that are ordered to do his bidding.
The Wizard of OZ, not that W guy, he is just that pathetic man in the corner, is pushing the button here in this case. Just my humble opinion here.
It's quite understandable why the military won't back down. They know if they lose that a precedent would be set resulting in thousands if not tens of thousands of members of the military pursuing the same course. That would surely bring home to the American people just how much in violation of our own laws that this invasion of Iraq has proven to be. I believe strongly that the military judge did create double jeopardy when he declared the mistrial over Watada's attorneys' objections after the prosecution flubbed their case. It should be noted that Watada does not view the Afghanistan war as illegal and was willing to serve there. I assume he believes that Al Qaeda attacks were, indeed, aided and abetted by the Taliban government which legally justified our attack in self-defense.
It will probably be triple or quadruple jeopardy. If he gets off the court-martial hook, anyone who wants to employ him will get one of those threatening, secret visits from the FBI warning them off. His phone calls and emails will be monitored.
Watada faces six years in the brig for refusing to kill innocent Iraqis while Blackwater mercenaries get sent home for mass murder of innocent Iraqi women and children.
Just remember my progressive colleagues, precedent is in operation here along with principle. No president of the United States has ever been prosecuted for the unlawful use of force. To admit Watada's refusal is lawful would imply the President's order to invade Iraq was (accurately) a crime against peace.
Precedent:
There are at least two cases that Watada needs to beat, and to, finally, establish, that Nuremberg applies to the United States. See below. (Note the last sentence of the quotation in Huet-Vaughn.)
>>http://www.mikenew.com/caaf.html
http://www.au.af.mil/au/awc/awcgate/awc-law.htm#ucmj
While the military judge determined that the order to wear the U.N. insignia was lawful, he properly declined to rule on the constitutionality of the President's decision to deploy the Armed Forces in FYROM as a nonjusticiable political question. Courts have consistently refused to consider the issue of the President's use of the Armed Forces. Two recent examples from the Persian Gulf War era are Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990), and United States v. Huet-Vaughn, 43 MJ 105 (1995). In the Ange case, the District Court declined to rule on the legality of deployment of troops in the Persian Gulf despite inconsistent views of Congress and the President. 752 F. Supp. at 512. In Huet-Vaughn, we reaffirmed the idea that personal belief that an order is unlawful cannot be a defense to a disobedience charge, holding: "The duty to disobey an unlawful order applies only to a positive act that constitutes a crime that is so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness." 43 MJ at 114 (internal quotation marks omitted). The Court further upheld the military judge's decision not to consider evidence relating to the legality of the decision to deploy the Armed Forces. 43 MJ at 115. >>
BUT, the chances for a reversal of precedent at some point are decent because, among other facts, are these two:
From the Army Field Manual:
"Treaties relating to the law of war have a force equal to that of laws enacted by Congress. Their provisions must be observed by both military and civilian personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the Constitution and statutes."
This could reference 6 (2) which makes "treaties made" the "supreme law of the land" one of which is 2 (4) of the UN Charter which forbids force against other member states.
And from the case Hamdan v. Rumsfeld (Justice Kennedy, siding with the majority in a separate opinion):
"The provision is part of a treaty the United States has ratified and thus accepted as binding law."
Context below:
>>The Court is correct to concentrate on one provision of the law of war that is applicable to our Nation's armed conflict with al Qaeda in Afghanistan and, as a result, to the use of a military commission to try Hamdan. Ante, at 65–70; see also 415 F. 3d 33, 44 (CADC 2005) (Williams, J., concurring). That provision is Common Article 3 of the four Geneva Conventions of 1949. It prohibits, as relevant here, "[t]he passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." See, e.g., Article 3 of the Geneva Convention
(III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3318, T. I. A. S. No. 3364. The provision is part of a treaty the United States has ratified and thus accepted as binding law. See id., at 3316. By Act of Congress, moreover, violations of Common Article 3 are considered "war crimes," punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. §2441. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in §821.
P. 88, 89
Syllabus
HAMDAN v. RUMSFELD, SECRETARY OF DEFENSE, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 05–184. Argued March 28, 2006—Decided June 29, 2006>>
anney: Thank you for posting the information for those who may be unfamiliar with the Lt. Watada case. You said it well.
Earthian: I second the motion. Ehren Watada is the Number One hero of the officer corps of all the US armed forces. He is a giant among men!
Mr. Duncan: You are correct in your comments. Interesting thing about the Andersonville Trial is that too many Americans have never heard of it and it set the precedent for the Nuremberg Trials, to a large degree.
My progressive fantasy for American is that Watada become Secretary of Defense in a future administration.
This is a very important trial. Nuremberg's authority to convict many of the Nazis as war criminals was based on the Andersonville POW camp war crime trial where a U.S. military commission decided that following orders and doing ones duty was not sufficient reason to be inhumane.
So, Nuremberg extended this to mean that a soldier is duty-bound to refuse an unlawful order, and is partially responsible for the crime of carrying out an unlawful order. This foundation of law was further affirmed in the trial of First Lieutenant William Calley for his part in the My Lai Massacre.
The recommended course of action for soldiers is to ask for the order in writing. Then, notify your superior that you intend to disobey it, and request trial by court martial if your superior wishes to hold you accountable for disobeying an order.
I would recommend, also, sending a letter, e-mail, or telephone message to someone you know before you notify your superior, because funny things happen in wartime.
The trial was declared a "mistrial" but it's really a miscarriage of justice. They called the mistrial before the defense could make a case, most likely because they were unable to quash testimony about the legality of an order to fight in Iraq.
Here's background information on Watada:
A native of Hawaii who enlisted in the Army after graduating from college in 2003, Watada differs from other military personnel who have sought conscientious-objector status to avoid deployment to Iraq.
Watada told Truthout's Sarah Olson that at first he gave the Bush Administration the benefit of the doubt as it built the case for war. But when he discovered he was being sent to Iraq, he began reading everything he could, such as James Bamford's Pretext for War. He concluded that the war was based on false pretenses, ranging from the nonexistent weapons of mass destruction to the claim that Saddam had ties to Al Qaeda and 9/11 to the idea that the United States is in Iraq to promote democracy.
His investigation led him to question the very legality of the war. In an interview with Democracy Now!, he explained that as he read articles by experts on international and constitutional law, reports from governmental and nongovernmental agencies, revelations from independent journalists, writings by the Iraqi people and the words of soldiers coming home, "I came to the conclusion that the war and what we're doing over there is illegal."
First, he concluded that the war violates the Constitution and War Powers Act, which, he said, "limits the President in his role as commander in chief from using the armed forces in any way he sees fit." Watada also concluded that "my moral and legal obligation is to the Constitution and not to those who would issue unlawful orders."
Second, he claims the war is illegal under international law. He discovered that "the UN Charter, the Geneva Convention and the Nuremberg principles all bar wars of aggression." The Constitution makes such treaties part of American law as well.
These are not wild legal claims. Watada's conclusions are supported by mountains of evidence and experts, including the judgment of UN Secretary General Kofi Annan, who in 2004 declared that the US invasion was "not in conformity with the UN Charter, and from our point of view...was illegal."
Watada said he came to recognize that the military conduct of the occupation is also illegal: "If you look at the Army Field Manual, 27-10, which governs the laws of land warfare, it states certain responsibilities for the occupying power. As the occupying power, we have failed to follow a lot of those regulations." He told ABC News that the "wholesale slaughter and mistreatment of the Iraqi people" is "a contradiction to the Army's own law of land warfare."
While ongoing media coverage of the protest debates whether Watada's action is one of cowardice or conscience, so far the seriousness of his legal claims have been largely ignored. Watada's position is different from that of conscientious objectors, who oppose all wars. "I'm not just against bearing arms or fighting people. I am against an unjustified war," he said.
Can such a claim be heard in a military court? In 2004, Petty Officer Pablo Paredes refused to board his Iraq-bound ship in San Diego Harbor, claiming to be a conscientious objector. At his court-martial, Paredes testified that he was convinced that the Iraq War was illegal. National Lawyers Guild president-elect Marjorie Cohn presented evidence to support his claim. The military judge, Lieut. Cmdr. Robert Klant, accepted Paredes's war-crimes defense and refused to send him to jail. The government prosecutor's case was so weak that Cohn, in a report published on Truthout.org, noted that Klant declared ironically, "I believe the government has just successfully proved that any seaman recruit has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
One of Germany's highest courts heard a case last year regarding a German soldier who refused to participate in military activities as part of the US-led coalition in Iraq. The Federal Administrative Court issued a long and detailed decision in his favor, saying, "There were and still are serious legal objections to the war against Iraq...relating to the UN Charter's prohibition of the use of violence and other provisions of international law."
Watada's case comes amid a growing questioning of the Iraq War in all levels of the military. A February Zogby poll found that 72 percent of American troops serving in Iraq think the United States should leave the country within the next year, and more than one in four say the United States should leave immediately. While the "generals' revolt" against Defense Secretary Donald Rumsfeld didn't challenge the legality of the war per se, many retired military leaders have strongly condemned the use of torture and other violations of international and military law.
According to USA Today, at least 8,000 service members have deserted since the Iraq War began. The Guardian reports that there are an estimated 400 Iraq War deserters in Canada, of whom at least twenty have applied for asylum. An Army spokesman says that ten other servicemen besides Watada have refused to go to Iraq.
http://www.thenation.com/doc/20060626/brecherwebvideo
Ok CommonDream Americans, help me to understand this. As I have read in other articles, Watada is on trial for not, as they say, "just following orders". His accusers (the US government) argue that he lost his ability to pick and choose which wars to fight when he (Watada) signed up for military service. So, imagine if he was ordered to use his pistol to shoot a baby in the face. Would that also (not shooting the baby) be a criminal offence? How about shooting his mother? Would that also be an order Watada isn't permitted to refuse? It seems to me that the US government thinks it can order Watada to do just about anything.
Ehren Watada stood by his oath.
George Bush and Dick Cheney did not.
Why have they not been tried at least once?
Let Watada go! Indict Ball & Chainy!
Ehren Watada is a courageous man of conscience but the Army is too embarrassed to let him go free. I hope that many more soldiers who have finally found their own inner moral compasses will follow his example and refuse to serve in this illegal war. Please support him and others any way you can!
Ehren Watada is a hero in my book. All our military forces could take a lesson. I hope he's remembered in history books for posterity.
Indeed, the attack and ongoing occupation of Iraq were and still are illegal acts under US and international law. George Bush and Dick Cheney should be on trial for high crimes and misdemeanors, not Ehren Watada.