At Great Personal Risk: the Trials of Ehren Watada

"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."

The Trials of Ehren Watada
By Jeremy Brecher & Brendan Smith

May 19, 2009

AP Images
Watada, center, speaks to reporters and supporters, Wednesday, June 7, 2006, in Tacoma, Wash.

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.

Editor's Note: This article has been corrected regarding the military record of Mike Wong and Gerry Condon. They are not Vietnam War veterans, but Vietnam war resistors.

Tom Hayden: Obama's pick to be the top US commander in Afghanistan directed a screening center in Iraq in 2003 that held terror suspects in secret facilities to which the Red Cross did not have access.

Jeremy Brecher & Brendan Smith: The government drops efforts to prosecute an officer who refused to fight in Iraq. But the Army continues its campaign against him.

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Tim Costello & Brendan Smith: At a time of economic, climatic and political crisis, advocates of social justice gathered for the annual World Social Forum to contemplate a new vision for a better world.

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 war resisters 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?