The Trials of Ehren Watada

As Americans are inundated with revelations about the lies, torture and other crimes that
accompanied the US-led war in Iraq, many who resisted continue to be
punished for refusing to participate in those crimes. First Lt.
Ehren Watada, the first commissioned military officer to refuse
deployment to Iraq, won a significant legal victory last week when the US
Department of Justice dropped
efforts to retry him after a bungled court-martial. But
his legal problems continue.

As America struggles with how to hold its homegrown war criminals
accountable, those who resisted provide lessons for how to prevent war
crimes in the future. Releasing Watada from the Army, and providing
amnesty for all those who have been punished for resisting the Iraq War,
must be a central part of America's coming to terms with Bush
administration policies. Indeed, their arguments and actions should be
studied by every civics class and everyone who aspires to high public
office.

Watada's stand

In 2006, Watada, an infantry officer based at Fort Lewis, Washington,
refused to be deployed to Iraq on grounds that the war was illegal and
immoral and that to participate in it would make him complicit in war
crimes. The Army court-martialed him, but at the last minute Military
Judge John Head declared a
mistrial. The Army attempted to retry him,
but civilian US District Court Judge Benjamin Settle barred the retrial
as a violation of the Constitution's ban on double jeopardy. The Army
then appealed the decision, but last week Solicitor General Elena Kagan
ordered the appeal withdrawn. Yet the Army is
still considering further action against Watada. Now that
most Americans, including President Obama, understand the truth of Lt.
Watada's assertion that the Iraq War was based on a lie, it is time to
let Ehren Watada go.

Watada's stand was not the conventional conscientious objection to all
wars; it was based on his belief that this particular war was
illegal. He maintained that it violated the Constitution and the War
Powers Act, which "limits the President in his role as commander in
chief from using the armed forces in any way he sees fit." It was
illegal under the UN Charter, the Geneva Convention and the Nuremberg
principles, which "all bar wars of aggression." He claimed the conduct
of the occupation violated the Army Field Manual; "The
wholesale slaughter and
mistreatment of the Iraqi people" is "a contradiction to the Army's
own law of land warfare."

These are the real issues about the Iraq War that Americans must grapple
with in the future.

Military injustice

The Army's behavior toward Watada has been disgraceful from the start.
The entire controversy could have been forestalled if the Army had not
refused his initial request to resign. The Army charged Watada not only
with "missing movement" but with "conduct unbecoming an officer and a
gentleman" for speaking critically of government policy and President
George W. Bush in ways that the military's own courts had repeatedly
established to be constitutionally protected. In an effort to intimidate
Watada's supporters, Army prosecutors subpoenaed journalists and
organizers of public meetings.

Judge Head conducted the court-martial without regard for
basic principles of justice and fairness. He ruled Watada's
motivation irrelevant and prohibited any testimony on whether the orders
he was given were, in fact, legal. He declared a mistrial over the
objections of the defense; the civilian judge who reviewed the case
charged that "the military judge likely abused his
discretion" in doing so.

Army prosecutors then initiated a second court-martial of Watada
on the same charges, which a civilian judge declared to be a violation
of the Constitution's protection against double jeopardy. The Army then
announced that it would appeal the case, but took no action for eighteen
months, all the while refusing to allow Watada's long overdue discharge
from the Army.

In late April, Mike Wong and Gerry Condon, Vietnam veterans and members
of Veterans for Peace, learned that the Army had referred the decision
regarding its appeal of the federal court's double jeopardy ruling to
the US solicitor general. They initiated an Internet-based "Ad Hoc
Campaign to Free Ehren Watada." Their alert was reposted on over
300
blogs and websites, resulting in hundreds of phone calls, letters and
e-mails to the Obama Justice Department officials. Nine days later, the
Justice Department withdrew the appeal.

According to Kenneth Kagan, one of Watada's attorneys (and no relation
to Elena Kagan), the Army could have drawn out its appeal until 2010 or
2011. But the new solicitor general sought to take a "leadership
position" on the case. "It's obviously a bold decision to depart from
past policies," he said.

Yet even after the Justice Department ordered the appeal withdrawn, the
Army is still maintaining its option to punish Watada on two
additional counts of "conduct unbecoming an officer" that were withdrawn
during the original court-martial.

Fort Lewis spokesman Joe Piek was quoted in aHonolulu Advertiser
report as saying that the leadership at Fort Lewis is considering
"a full range of judicial and administrative options that are available,
and those range from court-martial on those two remaining
specifications, to nonjudicial punishment, to administrative separation
from the Army."

When these charges were initially brought, they caused a firestorm that
reached far beyond the peace movement. Civil liberties groups pointed
out that Watada had followed all the Army's rules in making public
statements--wearing civilian clothes, not his uniform; notifying his
base commander; and making clear he was not speaking for the Army. Media
organizations launched a campaign against the Army's subpoenaing of
journalists, which was followed within a few days by the Army's
withdrawal of the charges.

These remaining charges accuse Watada of making such "disgraceful
statements" as "Bush had planned to invade
Iraq before the 9/11
attacks." Today everyone from the president to the Senate Armed
Services Committee down to the lowliest newspaper reader knows about
what Watada called the "deception the Bush administration used to
initiate and process this war." If the Army seriously intends to try
Watada for saying that the Bush administration lied America into the
Iraq war, the Justice Department will have a strong motive to again
assert its "leadership position."

Apparently the Army is considering charging Watada for such statements
as a backdoor way to punish him for his refusal to go to Iraq--exactly
what it is forbidden to do under the constitutional principle of double
jeopardy. What other conclusion could one draw from Piek's statement
that "The one element that concerns us the most is that this case has
always been and will forever be about a soldier--in this case, a
lieutenant, a commissioned officer--who refused orders to deploy."

Watada's term of service ended in December 2006, but the Army kept him
on active duty while his case was pending. According to his attorney, Kagan,
discussions continue with the Army "to see if we can find some common
ground." He told KPFK radio, "The Army has to make a decision, and
they have to make it soon, about whether they are really going to try to
proceed against Lt. Watada on the two remaining criminal charges. There
was actually a clock ticking on the speed with which they have to
proceed. So we would urge them to make a decision quickly, and we're
working on that quietly behind the scenes."

Watada support organizer Mike Wong told The Nation that resolving
the 31-year-old officer's legal situation would be a healing act.

"The issue of the war has been settled--there is a broad consensus that
the question now is how to get out of Iraq," he said in an interview.
"The military, the resister soldiers and the Iraqis have all been
traumatized and all need to heal from the war. It would be in the best
interests of everyone--including the Army--to put the Watada case
behind them."

If and when that happens, Ehren Watada plans to attend law school.

A positive spin on accountability

Ehren Watada's stand raises unsettling questions for government
officials and ordinary Americans alike that go beyond punishing the bad
guys. What is our duty in the face of evidence that our government is
committing crimes?

It may be ludicrous for House Speaker Nancy Pelosi to claim she didn't
know about US torture (if the CIA didn't tell her she could have read
about it in the Washington Post), but it is equally ludicrous for
any American who can read a newspaper to claim that he or she was
unaware of the Bush administration's lies about weapons of mass
destruction, its legal denial of the Geneva Conventions, the mass
killings of civilians in Fallujah and elsewhere, use of white
phosphorous against civilians, prisoner abuse in Abu Ghraib and other US
war crimes in Iraq.

Yet many people did in fact take a stand, often at personal risk, to
oppose those crimes. Some, like Watada, took a public stand. Some went
underground or escaped the country. As the secret history of the Iraq
War is revealed memo by memo, we also learn more about the internal
whistle-blowers, even within the highest circles of the Bush
administration and the military, who fought against the torture policy.
As Rhode Island Democratic Senator Sheldon Whitehouse put it in last
week's torture hearings, Americans were not told "how furiously
government and military lawyers rejected" the legal opinions justifying
torture.

If we are truly to draw the lessons of Iraq, we need not only to hold
criminals accountable; we need to hold up as role models the
whistle-blowers and resisters who refused to go along with them. We need
national reflection on the responsibilities of individuals and
officeholders to prevent war crimes in the future. Future Congressional
investigations and truth commissions should hold up those who opposed
war crimes for admiration and emulation.

Many Iraq War resisters remain prisoners or fugitives. There are more
than fifty public resisters in Canada and an estimated 250 more
underground. While the Army just kicks most AWOL deserters out with an
administrative discharge, it singles out those who have spoken publicly
against the war for severe punishment. As recently as this April, the
Army sentenced Clifford Cornell, a resister who was forced to leave his
refuge in Canada, to twelve months in a military prison and a bad
conduct discharge.

"President Jimmy Carter ran on a platform of granting unconditional
pardon to draft resisters--and he not only did so as his first act in
office but also established rapid administrative discharge for AWOL
soldiers, Gerry Condon, whose Project Safe Haven supports American war
resisters in Canada, told The Nation. "But that was four years
after American troops left Vietnam and public opinion had turned
strongly against the war. We need a similar revaluation today. The
demand to free Ehren Watada and amnesty all war resisters will depend on
the larger struggle to bring the troops home and end our illegal wars
and occupations in Iraq and Afghanistan. It should be linked to
investigating high level officials who are responsible for war crimes.
It is shameful that those responsible for the war and its crimes remain
at large while war resisters are persecuted and GIs are stop-lossed and
denied adequate medical and psychological care and stop-lossed. And it
should be combined with honoring the soldiers who were the victims of
their crimes by providing them with adequate care and benefits."

As America debates what to do with its accused war criminals, isn't it
time to exonerate Ehren Watada and all those who those who stood up
against their war crimes?