Watada Follows Military Rules on Dissent

Mistrial declared as Army's case flounders.
By Colonel (Retired) Ann Wright
TruthOut.org
Feb. 13, 2007

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.
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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