| Watada Beats the Government | | Print | |
| Editorial | |||
| By Marjorie Cohn | |||
| Watada Beats the Government By Marjorie Cohn
Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them. The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there. The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …" "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq." Lt. Watada Citing "deception and manipulation … and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war. The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court martial and imprisonment. Lt. Watada did face court martial, and four years in prison, until the judge declared a mistrial. This is what I would have said had I been allowed to testify at Lt. Watada's court martial: The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq. A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter. Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones." Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions. Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches. "The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial - for the commission of war crimes." Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial - for the commission of war crimes. Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity. The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity. Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: "No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us." Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges.  Marjorie Cohn, MWC News Magazine senior editor, is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published this spring by PoliPointPress.Other articles by this author Tags: Marjorie Cohn Ehren Watada | |||
![Watada said he 'had no choice but to refuse the order' to deploy to Iraq [AFP]](http://mwcnews.net/images/stories/US-Forces/3/Ehren-Watada-3.jpg "Watada said he 'had no choice but to refuse the order' to deploy to Iraq [AFP]")
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Opinion
Mistrial Declared in Lt. Watada Court Martial
The Nation 38 minutes ago
The Nation -- U.S. Army First Lieutenant Ehren Watada finally had an opportunity to speak in his own defense Wednesday and in short order raised meaningful concerns about the prospect that he was being railroaded by prosecutors who had effectively limited his range of defense options. On a surprise motion from the prosecution, the judge then declared a mistrial in the high-profile court martial of the Army officer who refused to deploy to Iraq because he had come to the conclusion that U.S. invasion and occupation of that country was illegal.
The ruling by the judge, Lt. Col. John Head, does not mean that Lt. Watada is off the hook. After moving for the mistrial, the prosecution asked for a new trial and the judge tentatively scheduled a one for mid-March. But it does mean that a new trial could offer Watada's defense team more flexibility in arguing that the officer had a legitimate reason for refusing to fight in Iraq.
This is significant because, as Richard Swain, a retired military officer who now teaches ethics at West Point, testified this week: Officers do not have to follow orders that they determine to be illegal. Of course, Swain explained, "if they make that determination, they have to be right. And if they're not right, they will be held accountable."
There is no guarantee that Watada's defense will succeed in convincing a military jury that the war in Iraq is illegal -- in fact, there is every reason to believe the officer and his lawyers will have a very hard time doing so -- but the prospect that they might be afforded more of an opportunity to mount such a defense could change the dynamic of a second trial.
Because of what is at stake -- not just for Watada but for the Army and for the Bush administration -- the trial has drawn international attention. And the scene in the courtroom on Wednesday was remarkable.
Under tense questioning from Head, Watada said that he did not believe the agreement he had signed -- in which he acknowledged that he had chosen not to deploy with his unit to Iraq -- was an admission of guilt. Indeed, Watada explained, he felt he had a right to argue in his defense that the war is illegal and that serving in it would cause him to participate in war crimes.
Throughout the court martial proceeding, the prosecution had built its case against Watada around the argument that what was being determined was a simple question: Did Watada refuse to follow orders. The prosecution made the case that officers are not free to choose whether to serve in a particular war, and that they cannot question the actions and motivations of their commander-in-chief. "He bought shame and disgrace upon himself," Capt. Jeff Van Sweringen, the Army prosecutor, said of Watada.
According to Seattle Times reporter Hal Bernton's essential coverage of the trial -- on which this report is based -- Sweringen told the court: "The underlying facts to these grave charges are... unassailable."
That line of argument was complicated by the question of whether Watada had believed he was admitting guilt when he signed the statement acknowledging that he did not deploy with his unit to Iraq.
Under questioning by the judge, it became evident that the officer was not of the belief that he had signed away his right to defend himself.
"I'm not seeing we have a meeting of the minds, here," the judge finally said. "And if there is not a meeting of the minds, there's not a contract. Tell me where I'm missing something?"
The Army prosecutors made a last-ditch attempt to suggest that they were not arguing that the agreement represented an admission of guilt by Watada. But Head wasn't buying it. The judge told the courtroom that, because there was now a debate about the agreement's meaning, the prosecutors would have to move to reopen their case -- which they had finished Tuesday. That would have forced the prosecution to proceed in front of a jury that had been made aware of concerns about the meaning of the pretrial agreement.
That's when the request for the mistrial was made, and accepted.
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Watada Court-Martial Ends in Mistrial
To: NATIONAL EDITORS
Contact: Alex Howe, +1-202-822-5200, or Jenny Park (on-site), +1-415-867-1166; both for www.ThankyouLt.org
FORT LEWIS, Wash., Feb. 7 /PRNewswire-USNewswire/ -- Military Judge Lt. Col. John Head granted a mistrial in the case of Lt. Ehren Watada in response to a motion by the prosecution. Lt. Watada is the first commissioned officer to publicly refuse to serve in Iraq.
"The mistrial is very likely to have the consequence of ending this case because double jeopardy may prevent the government from proceeding with a retrial," said Eric Seitz, lead attorney for Lt. Watada. "Although the defense was prepared to proceed with Lt. Watada's testimony, and felt very optimistic about this trial, we view the order declaring a mistrial as a significantly positive event."
SOURCE www.ThankyouLt.org
The Seattle Times
Watada court martial ruled a mistrial
Seattle Times staff reporter
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PREV
The court martial of Lt. Ehren Watada ended unexpectedly today with the judge declaring a mistrial due to his misgivings about a pretrial agreement...
Hal Bernton: 206-464-2581 or hbernton@seattletimes.com
Copyright © 2007 The Seattle Times Company
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The Olympian
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Seattle Post-Intelligencer
http://seattlepi.nwsource.com/local/302733_courtmartial07ww.html
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Reuters
http://today.reuters.com/news/articlenews.aspx?type=topNews&storyid=2007-02-08T000024Z_01_N05474363_RTRUKOC_0_US-USA-IRAQ-OFFICER.xml==================================
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http://en.wikipedia.org/wiki/Executive_Order_9066
wikipedia
United States Executive Order 9066 was a presidential executive order issued during World War II by U.S. President Franklin D. Roosevelt on February 19, 1942, using his authority as Commander-in-Chief to exercise war powers to send ethnic groups to internment camps.
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