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Truthout - Feb 12, 2007
http://www.truthout.org/docs_2006/021207S.shtml

Watada Follows Military Rules on Dissent

Mistrial declared as Army's case flounders

By Colonel (Retired) Ann Wright

Courage is not only shown on the battlefield by military personnel.
It takes guts and courage for a soldier to refuse to deploy to Iraq with
one's unit because he believes the war is illegal. Very few in our
country resign from their careers, much less risk imprisonment, on a
point of principle and conscience.

First Lt. Ehren Watada is the latest in a series of war resisters.
He went in front of a military court-martial for his belief that the war
in Iraq is a war of aggression based on untruths told to the American
public and Congress. As a war of aggression, Watada has characterized
the war as a crime against peace, and hence, according to international
law, a war crime. Going to Iraq would make him complicit in a war crime.
Two other US Army soldiers will be court-martialed within the next month
for their opposition to the Iraq War, making seventeen who have faced
jail rather than compromise their conscience.

I attended Lieutenant Watada's general court-martial February 5, 6
and 7, 2007, at Fort Lewis, Washington. The military law judge, Lt. Col.
John Head, declared a mistrial on the third day of the trial before the
defense had presented its case. While Watada stipulated the fact that he
missed his unit's deployment to Iraq, he pled not guilty to the charge,
as he maintained he did not have criminal intent in refusing to deploy,
but instead his refusal was to prevent his complicity in a war crime. As
to the stipulation of fact that he had spoken in a public forum in June
and August, he would argue that his statements about the illegality of
the war were based on facts provided by international law experts,
Congressional testimony and comments by retired general officers.

The defense was to consist of only two witnesses, one of whom was to
be Watada himself. Eight witnesses, including leading international war
experts and analysts, had been struck from the defense witness list by
the judge in a January 2007 pre-trial hearing. The judge ruled that
evidence concerning the legality of the war on Iraq was off-limits
during the trial. As one can imagine, the courtroom dance of not
mentioning the "ultimate question," of whether a soldier can question
the legality of a war, proved to be an incredible obstacle to justice in
the case of a military officer facing prison time for his beliefs.

The US Army prosecution called only three witnesses to meet its
burden of providing evidence beyond a reasonable doubt that Lieutenant
Watada had failed to deploy to Iraq and had committed conduct
"unbecoming an officer" for public statements about the war on Iraq he
made in June and August 2006.

Ironically, in my opinion, the testimony of the prosecution
witnesses underscored Lieutenant Watada's professionalism, dedication to
duty and respect for the chain of command as he attempted to resolve his
ethical and moral concerns about the war. In effect, prosecution
witnesses undercut the prosecution's own case against Watada before the
jury panel of seven US Army officers.

Prosecution witness Richard Swain, a retired US Army colonel and
currently professor of "Officership" at the US Military Academy, West
Point, said that an officer is under no obligation to obey unlawful
orders. An officer is charged with the responsibility of making a
determination whether an order is lawful or unlawful. According to
Swain, when an officer believes that an order conflicts with his
responsibility as an officer, he must do what his conscience tells him.
But, the officer must be willing to be held accountable if he is wrong
in his analysis of the order. Swain said that the military teaches
officers to be "creative and critical thinkers." He also said that an
officer takes an oath to defend the Constitution of the United States,
not a particular person or policy.

Swain said in one's career, an officer may come to different
conclusions than his/her commander on an issue. Swain said that military
tradition requires that the officer attempt first to work out the
difference with his commander. Swain added that an officer may get
advice from his peers, officers he respects, mentors and military
lawyers on the issue under debate. He may also go to the next higher
commander for resolution of the differences or to the Inspector General.
If none of those attempts to resolve the differences are successful,
Swain said, the officer may "appeal for redress" or submit his
resignation. If an officer offers to resign on principle on a particular
issue and the resignation is not accepted, then, Swain noted, the oath
continues.

It appears to me that Lieutenant Watada explicitly followed the
principles of "officership" as described by Colonel Swain, the
prosecution expert witness.

In the autumn of 2005, upon learning of his unit's scheduled
deployment to Iraq in June 2006, Watada, on the advice of his commander,
began reading about Iraq and the war. As more and more information
emerged in late 2005 on the history of the Bush administration's
decision to wage war on Iraq, Watada became convinced that the war was
illegal. He talked with his battalion and brigade commanders about his
concerns in January 2006 and sent them a formal letter of his views on
January 25, 2006, six months before the unit's scheduled deployment to
Iraq. His commanders advised him, that despite his concern on the
illegality of the war, the unit's deployment orders were lawful. Watada
respectfully disagreed with his superiors' assessment and twice
submitted requests for resignation. Because of the strength of his
concerns about the war, his commanders reassigned him from his platoon
in anticipation that he really would refuse to deploy with the unit.
After his second request to resign was denied by his commanders and his
request to be assigned to a unit in Afghanistan was denied, he decided
he must make his concerns public.

His commanders told him they would rather he not make public
statements, but if he did, he could not make statements in uniform or
on-base, and that he must be respectful of the chain of command.
Additionally, they told him he must talk with the public affairs officer
at Fort Lewis. After the conversation with his commanders, Watada went
directly to that office for further guidance.

In his testimony for the prosecution, Watada's battalion commander,
Lieutenant Colonel Antonia, said that "a soldier has an obligation to
determine if an order is unlawful, a criminally illegal order." He added
that "the chain of command looks at an order and makes a decision on
whether it is legal or not. If the chain of command says the order is
legal, then the officer must obey." Antonia said when Watada went
public, he, Antonia, was "angry and felt betrayed by Watada's opinions
and his statement that he would rather go to jail than serve in an
illegal war." Antonia questioned how a lieutenant in the Army would know
whether the president made a decision to go to war based on lies. When
defense attorney Eric Seitz asked Antonia if Watada was citing the same
evidence about the war that was being publicly discussed by retired
generals, congressmen and women, the judge told Seitz to "move on," that
he was bringing up an issue too close to the "ultimate question."

Despite his concerns about the war from July 2005 to June 2006, his
battalion and brigade commanders said he performed his duties in a
professional manner, including participating in his unit's
pre-deployment training at the National Training Center (NTC) in March
2006. He had followed the instructions and advice provided by his
command. He was speaking publicly, but under the guidance of the Fort
Lewis public affairs officer.

After returning from training at NTC, the Army recognized that
Watada was serious and sincere in his decision not to go to Iraq. His
unit commander had him reassigned from a platoon leader position to a
staff job so that Watada's platoon would have time to bond with its new
leader.

Watada's battalion and deputy brigade commander said that Watada's
actions did not negatively affect the unit, although there was much
discussion in the unit about Watada's decision not to deploy and his
public statements. No other soldier in the unit followed Watada's
example to decide not to deploy with the unit to Iraq. No other soldier
went public with concerns about the war. As happens in every war, for
most soldiers, bonds among friends going to war overcome whatever
political discussions and debates rage about the war itself. Only
seventeen military personnel will have been court-martialed for refusing
to deploy to Iraq. Hundreds have been administratively discharged, and
over 300 soldiers are in Canada in protest of the war in Iraq.

The Army's case against Lieutenant Watada is a mess. The testimony
of the prosecution's own witnesses made a strong case for Lieutenant
Watada's professionalism and respect for military customs, courtesy and
traditions when one dissents from a policy.

As an old soldier with nearly three decades of service, I suggest
that the "good order and discipline" of the Army has not been negatively
affected by Lieutenant Watada's actions. Until his unit deployed to Iraq
on June 22, Watada had not disobeyed an order from his command. He did
not go AWOL. After he was charged, he worked professionally and
diligently everyday while awaiting his court-martial.

I urge the Army to let the lieutenant, who has acted in good faith,
with courtesy and respect for the military and responsibility for his
oath to the military and to the country, resign.

[US Army Reserves (Retired) Colonel Ann Wright served 13 years on
active duty and 16 years in the reserves. She was a US diplomat who
served in Nicaragua, Grenada, Somalia, Uzbekistan, Kyrgyzstan,
Micronesia, Sierra Leone and Mongolia. She helped reopen the US Embassy
in Kabul, Afghanistan in December, 2001. She resigned from the US
diplomatic corps in March, 2003 in opposition to the Bush
administration's war on Iraq. Her letter of resignation can be read at
www.govexec.com/dailyfed/0303/032103wright.htm ]

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