Will the Watada Mistrial Spark an End to the War?

By Jeremy Brecher and Brendan Smith
The Nation

Friday 09 February 2007

A military judge in Fort Lewis, Washington, has declared a mistrial in the court-martial of Lieut. Ehren Watada, the first commissioned officer prosecuted for refusing to go to Iraq. A new trial is believed to be unlikely before summer, if at all. The mistrial represents a significant victory for Watada, for the rights of military resisters and for the movement of civil resistance to US war crimes in Iraq.

On the surface, the ruling by Lieut. Col. John Head appears to result from a procedural technicality, but in fact it is a defeat for the Army's central goal in prosecuting the 28-year-old officer. The judge had gone to extraordinary lengths to try to keep Watada from achieving his objective of "putting the war on trial," ruling that Watada's motivations for refusing to deploy with his unit were "irrelevant" and that no witnesses could testify on the illegality of the war.

But in its zeal to exclude the real meaning of the case, the court tied itself up in procedural knots. Prosecutors wanted the judge to find that Watada had agreed to pretrial stipulations that he had violated his duty when he refused to show up for movement to Iraq. But Watada made clear that he believed his duty, under his oath and military law, was to refuse to participate in an illegal war. As the underlying question of the war's illegality emerged like a family secret in the courtroom, the judge agreed to the prosecutor's motion to declare a mistrial. But Time.com reported that Watada's attorney, Eric Seitz, says he will file an immediate motion to dismiss the case on grounds of double jeopardy if the Army tries to resurrect it.

Watada maintained that his refusal to participate in an illegal war in Iraq was justified, indeed required, under the Army's own Uniform Code of Military Justice. Under Judge Head's rulings, however, there simply would be no way for a soldier to resist an illegal order. Indeed, an American military person could be ordered to commit mass murder or genocide and then be denied the right even to make a case for the lawfulness of his actions. The judge's rulings fly in the face of the Supreme Court's Hamdan v. Rumsfeld decision, which stood for the principle that all US officials are bound by national and international law not to commit war crimes.

The Army maintained that the duty to refuse an illegal order, established at the Nuremberg Trials and enshrined in the Universal Code of Military Justice, applies only to orders to commit particular criminal acts like executing a prisoner. But in Watada, Resister, a January 27 video by independent filmmaker Curtis Choy, Watada says that responsibility "doesn't just include individual war crimes. It includes the greatest crime against the peace, which is, as they determined after Nuremberg, wars of aggression, wars that are not out of necessity but out of choice for profit or power or whatever it may be."

Watada's dissent was intended to spark a movement of civil resistance on the part of the American people. As he told the Veterans for Peace annual convention in Seattle recently, the peace movement needs a change of strategy.

"To stop an illegal and unjust war, the soldiers can choose to stop fighting it.... If soldiers realized this war is contrary to what the Constitution extols-if they stood up and threw their weapons down-no President could ever initiate a war of choice again," he said.

But the young officer's appeal is not only to people in the military. He told the Veterans, "Should citizens choose to remain silent through self-imposed ignorance or choice, it makes them as culpable as the soldiers in these crimes." In the Watada, Resister video, he added, "No longer can any American citizen or organization simply sit on the fence and say, Well, we don't take a position on the war, because the war in itself is unconstitutional in many forms, and we as Americans have to step up and say either we agree with what's going on or we disagree with what's going on.... If you disagree ... then you are going to have to ask yourself what are you willing to sacrifice of yourself in order to correct the injustice and wrongs of this government in regard to the Iraq War."

"We all take part in it-if you pay your taxes, you're taking part in this war. We all have a responsibility, as they determined after Nuremberg, whether you're the lowest soldier or the highest ranking general, or just a regular civilian, we all have responsibility ... to resist and refuse enabling and condoning this criminal behavior," he said.

Sparking Resistance

Indeed, Watada's stand is helping spark resistance in many walks of American life. More than 1,000 active-duty soldiers have now signed the Appeal for Redress, asking for an end to the Iraq War. Appeal founder Jonathan Hutto made the connection between Watada's case and the soldiers' action. "The Appeal for Redress stands in solidarity with all those who resist the current occupation of Iraq, the mass murder of the Iraqi people, the harm and destruction done to American service members and their families, and the ill use of American tax dollars.... We hope that Lt. Watada is successful in his defense of his actions. We further hope that his actions inspire other service members to look deeply into the cause of this conflict and to follow their moral conscience."

The Washington Post reported that at a student rally held during the January 27 antiwar demonstration in Washington, DC, "Many students mentioned the case of Ehren Watada ... as an important step in building a cohesive antiwar movement. Watada's father spoke from the main stage at the protest as student speakers at a side rally organized by the Campus Antiwar Network hailed the young man as a hero and said the war will not end until other soldiers make the same decision."

Watada has also inspired a growing movement of civil disobedience against the war. Ying Lee, a former member of the Berkeley City Council, wrote in the Berkeley Daily, "Watada is a young man with extraordinary clarity about his moral responsibility and I am grateful for his principled and clearly articulated thoughts about his obligation to defend the Constitution, the UN charter, and the Nuremberg Principles.... My gratitude to him is expressed in committing civil disobedience by blocking the doors of the San Francisco Federal Building."

A majority of the American people now tell pollsters they believe the Iraq War is wrong. More than a dozen Congressional committees are now investigating aspects of the Iraq War and the "war on terror," including war crimes ranging from top officials' lies about weapons of mass destruction to illegal rendition and torture of captives. House Speaker Nancy Pelosi has said the Iraq War is the greatest moral issue facing the United States. And the midterm elections are almost universally interpreted as a call to end the war in Iraq. Yet the war only escalates. Could Lieutenant Watada's strategy of civil resistance provide the key to bringing it to an end?

America's Constitutional Crisis

Watada's stand is based on fundamental constitutional principles and responsibilities. It goes to the heart of America's current political, moral and constitutional crisis. As he told Democracy Now!, "In our democracy, according to our Constitution, one person, one man, cannot hold absolute power, hold himself above the law, including in actions in declaring war or waging war on another country. And it is my belief that in deceiving the American people, through what a majority of us now know to be true, the leaders of our country were violating their oath to this country and violating constitutional law."

Watada's reasoning provides a pivot for redirecting America's understanding of what has happened to us and what we must do about it. He challenges us to confront a chain of implications that starts with the truth about the criminality of the Iraq War, moves through the principles of the Constitution and US and international law, and ends with our personal responsibility.

Watada also provides a living example of what it means to step up to personal responsibilities. "There was a long time when I went through depression because I told myself I didn't have a choice," he said in Watada, Resister. "That I joined the military and I had only one duty and that was to obey what I was told, regardless of how I felt inside. It really hurt me for a long time because I imprisoned myself by telling myself I didn't have a choice. It didn't matter that I might be sent to prison. I was already in prison, my freedom was already gone."

"When I told myself that I do have a choice, I have a choice to do what is morally right, what is in my conscience, and what I can live with for the rest of my life-even though that comes with consequences, I do have that choice. When I realized that, and when I chose what was right for me, I became free again. And I think everybody has to remember that and to realize that is what is important in life."