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Thursday, February 8, 2007

What Was the Watada Judge Thinking?

posted by on February 8 at 10:15 AM

WatadaES.jpg

That was one of the big questions among reporters and anti-war observers as the court-martial of Lt. Ehren Watada collapsed yesterday, ending in a mistrial.

You’ll have to get up to speed on the stipulation at the center of the mistrial to follow this, but once you get up to speed, come back and consider a very good point that was raised by Seattle Times reporter Hal Bernton at a military press conference held yesterday afternoon after the mistrial had been declared.

Bernton read back some of his notes from Monday, day one of the court-martial, when the judge, Lt. Col. John Head, had asked Watada to explain his understanding of the stipulation. It’s important to note here that on Wednesday, one of the more dramatic moments had been the judge essentially halting the court-martial proceedings so that he could personally question Watada about the stipulation. But as Bernton pointed out, the fact was that two days earlier, on Monday, the judge had done basically the same thing, asking essentially the same questions of Watada about the stipulation—and receiving the same answers.

Bernton wondered: Why did the judge suddenly decide on Wednesday that the stipulation was not what Watada thought it was, and that this was a court-martial-upending problem?

It was a good question, considering that the judge’s reconsideration of the stipulation came one day after the prosecution had rested its case—a case the prosecutors had built in large part on the stipulation that the judge had decided to declare inoperative. The Fort Lewis spokespeople didn’t really have a good answer to Bernton’s question. “I can’t speak for the judge,” said Lt. Col. Robert Resnick, an expert on military justice brought in to help explain the case to reporters.

From my vantage-point during the court-martial, the judge appeared to be blaming the mistrial on the military prosecutors’ faulty understanding of the stipulation. But it was really the judge who had allowed the stipulation, let the court-martial proceed, and then suddenly come to a new understanding of the stipulation one day after the prosecution had rested its case.

Notes taken by my intern, Sage Van Wing, at the court-martial on Monday confirm what Bernton recounted.

At the heart of the judge’s rejection of the stipulation on Wednesday was his concern that it was in fact a “confessional stipulation”—a stipulation sufficient for convicting Watada on the charge of not deploying to Iraq—while Watada apparently believed he had signed only a “stipulation of fact” and still retained a legitimate defense against the charge of failing to deploy (i.e., the war is “illegal”).

The judge acted like this was news to him on Wednesday, but on Monday, under questioning from the judge about the stipulation, Watada had said, according to Sage’s notes:

My intent was that the order to deploy was an illegal order and that the war itself was illegal and that I had no other choice but to refuse. My intent was to refuse that order.

In other words, it was clear on Monday that Watada did not believe the stipulation, in which he only admits to the fact of not deploying, was a “confessional stipulation.” To put it another way, Watada agreed that he didn’t deploy, but he believed that his reason for not deploying—the “illegal” war—was his defense (although, in one of the more strange aspects of the trial, Watada was not allowed to raise that defense).

This is very wonky, but it’s important.

Nothing really changed between Monday and Wednesday in terms of the information available to the judge about Watada’s understanding of the stipulation. Watada’s request on Wednesday morning that the jury be told about his “illegal war” defense was the trigger for the renewed debate on Wednesday over the stipulation’s meaning, but that debate revealed nothing that wasn’t already clear on Monday. (And anyway Watada’s attorney, Eric Seitz, said after the mistrial that he had fully expected the judge to simply reject his proposed jury instruction on Wednesday morning and move on, letting the defense present its case. “Never ever has a proposed jury instruction triggered a mistrial,” Seitz said.)

So, again, what was the judge thinking? Here are the three main theories, all of them based on pure conjecture since the judge won’t be explaining his inner thoughts on this matter:

1) The judge was legitimately slow on the uptake, only realizing half-way through the court-martial that he had allowed in a stipulation that he believed was fatally flawed.

2) The judge had a sincere change of heart about excluding Watada’s “illegal war” defense and moved to scuttle the court-martial so that in a new court-martial (if one ever happens) Watada might be allowed to challenge the legality of the Iraq war.

3) The judge believed the court-martial wasn’t going the military’s way and moved to scuttle the trial before Watada ever got to take the stand.

RSS icon Comments

1

2 or 3 - I think he realized that this would be appealed to the Supreme Court and found wrong on the points of the law - and he'd rather do the right thing.

Posted by Will in Seattle | February 8, 2007 10:16 AM
2

3 seems to fit best, kind of conspiratorial since it implies the judge is a puppet controlled by some “military” or “civilian” puppet master, but so did the NSA wire tapping, secret CIA prison camps, Abu Gharaib, etc stories at first...

Posted by Phenics | February 8, 2007 10:56 AM
3

Having Watada speak on the stand would of made him more of a hero, and brought more attention to his line of reasoning for not getting on the plane to participate in the Illegal war in Iraq, notice how I did not put quotes around Illegal War. There are so many Americans against this war, but we have no effective heroes to fight for our cause, nor do we have an effective group of elected officials in the federal government trying to get us out of Iraq. Frankly, Watada makes me proud to be American again, and his actions not to participate has opened a road out of Iraq, a road most elected Dems and Repugs want to block.

Posted by Gary | February 8, 2007 11:06 AM
4

Sorry, Watado is no hero - no matter how you spin it. Ken Schram echos my take on it.

Posted by Chip Chipmunk | February 8, 2007 11:22 AM
5

What's most interesting to me here is the possibility that double jeopardy would prevent the government from trying Watada again (mentioned as likely by W's lawyer). If Watada gets off on a technicality, that's a win-win situation for the government. They don't have to take shit from the anti-war protesters for curtailing Watada's free speech, they don't have to put the legality of the war on trial, and they don't have to put Watada on the stand to speak for himself. However, it would still be a lesson to all those who might feel inclined to follow his example- "we're gonna come get your ass, and next time there might not be a technicality to get you off!"
Of course, it would also be a win situation for Watada- not having to spend 4 years in jail.

Posted by svw | February 8, 2007 11:28 AM
6

LTC's don't often change their hearts or minds, so #2 is probably not an option. #1 is a possibility, but #3 is most likely. All in all, I'm still surprised at the outcome. Since military court assumes the defendant guilty from the outset, I can't see why they couldn't just toss the press out of the courtroom, throw the book at him, and be done.


And yes, LT Watada is a disgrace of an officer, but I support his view and anything that opens more eyes to what this endeavor costs us can only be positive.

Posted by laterite | February 8, 2007 11:31 AM
7

laterite,

So, refusing to commit war crimes makes someone a "disgrace of an officer?"

What a truly morally bankrupt, hypocritical and just plain fucked up country we live in.

Posted by Original Andrew | February 8, 2007 11:37 AM
8

Look, is he a hero? Yes. Is he a military hero? No. Now, let's get back to the latest batch of lies about Iran, so they can sell us another fake war.

Posted by Will in Seattle | February 8, 2007 11:51 AM
9

For Chipmunk: Ken Schram’s article is the typical neo-liberal crap most people in the media
use to confuse the issues. Watada is not a hero, but the troops that know the war is wrong are heroes because they still fight it? The issue America needs to deal with is Republicans are trying to save the war overtly, and the majority of dems are trying to save it covertly. This war on terror is on the verge of destroying the planet, swallowing the common wealth, and it has already hollowed the separation of church and state, the bill of rights, the geneva conventions, etc etc.

If more officers and troops followed Watada’s lead, this war would be over. Pull that Neo-Con cock out of your ass Chipmunk(and Dan Savage), and try not to act like the stupid, abused sluts you have become. Not that I have anything against sodomy between consenting adults.

Posted by Gary | February 8, 2007 12:05 PM
10

This was a political trial from the beginning, it may be that the politics of the protests and the media interest created a climate that the top brass wanted to go away as quickly and quietly as possible.

Posted by RainMonkey | February 8, 2007 1:00 PM
11

Original Andrew:


Yes, he is a disgrace of an officer, because a) He enlisted and was subsequently commissioned after our adventure in Iraq began, and thus had to know he would end up there at some point in his service, b) Officers have much less (Read: NO) leeway when it comes to disobeying orders and not enforcing standard military procedure. A private or corporal who refused to deploy might just get placed into a domestic support unit or otherwise confined. An officer, especially a front-line lieutenant, is there to set an example for the soldiers and be unwavering in enforcing standards.


However, as I said, he is courageous for attempting to capture the public's attention to this matter. That an officer would think to do this certainly puts doubt in a lot of people's minds.

Posted by laterite | February 8, 2007 1:41 PM
12

In the early 1980s, a Washington trial judge declared a jury instruction misleading and granted a mistrial, over the defendant's objection. The Court of Appeals of Washington, in State v. Browning, 38 Wn.App. 772 (1984), held that there was no manifest necessity for the mistrial, the trial court's order was an abuse of discretion, thus the double jeopard clause prohibits a retrial, amounting to an acquittal. Federal law is consistent with Washington law. Watada will likely walk. Dumb judge. Dumber trial counsel. Seitz knew exactly what he was doing by objecting.

Posted by Algernon | February 8, 2007 3:25 PM
13

laterite:
It the duty of an officer in the US army to refuse to obey an illegal order. It is in writing.

From your perspective, if a colnel(or President Bush) ordered a lieutenant to cut the throats of a car load of children and the lieutenant refused and also told his subordinates not to do it, the lieutentant could be charged with mutiny and have no defense.

Yes, in this case the duty to disobey an illegal order based on the Nurnberg principles the issue is complex. Interestingly, the crimes that led to the idea of the Nurnberg prinicples were committed in furtherance of an illegal war of agression. "Just obeying orders is not a sufficient defense."

Your Nazi police state mentality is sad. There has to be a way under the law for a soldier to raise the defense of illegal order or we have a Nazi army, not a US army.

I vote for #3, I'd like it to be #2, and I find #1 unbelievable because the rules for handling confessions are so ingrained in criminal judicial training and procedure.

Posted by mirror | February 8, 2007 3:29 PM
14

I remember in Navy boot camp 20+ years ago, one of the codas that they instilled in every one of us was a duty not to obey an unlawful order. You can't do something illegal, simply because your superior told you to. It is one of the basic tenants of a civilized military (if that isn't an oxymoron). American servicemen and women are not automatons. They are required to think. Officers, even junior officers, must make judgement calls.

We can argue whether or not his claim that his order to deploy to Iraq was an unlawful order. Some might say yes, some might say no. But the basic premise of his defense tactic is sound. It is a legitimate defence, provided he can convince a jury to agree with him that the deployment order was an unlawful order.

You might disagree with what he is doing, but he is neither a traitor nor a coward. He is taking a principled stand. He may ultimately end up in jail over it, but that is the chance he chose to take.

Posted by SDA in SEA | February 8, 2007 4:33 PM
15

Gary said(@9):

"If more officers and troops followed Watada’s lead, this war would be over."

And so what would happen to Iraq then? Mass genocide or peace and harmony? Gary you need to think before you write.

Posted by Chip Chipmunk | February 8, 2007 5:22 PM
16

SDA Wrote:
"You might disagree with what he is doing, but he is neither a traitor nor a coward. He is taking a principled stand"

Well stated and an excellent summary,
SDA.


---Jensen



Posted by Jensen Interceptor | February 8, 2007 5:48 PM
17

Chip, mass genocide is happening right now. Over 630,000 dead Iraqis, add to that 500,000 dead Iraqi children because of sanctions pre Bush 2. This does not take int account the wounded Iraqis. Most Iraqis want the US troops out. Most Americans want US troops out. The shiites are using the American troops as a shield and a shill to wipe out the Sunnis. America has failed in Iraq, and we can not fix it. The Dem controlled congress is going to cut domestic policies to fund the war. Jo Lieberman wants to have a War Tax to pay for it. The sectarian war in Iraq is going to happen with us or with out us. We need a passport to go to Canada. We are struggling to pay for the Viaduct, we did not have the money to pay for an elevated transit system. If we attack Iran gas will go to 12 buck or so a gallon, the dollar is dropping in value, the housing bubble is about to sink the economy. Your short idiotic responses to my posts are laughable, and fun. God, I feel like I am slapping a retard. Have a nice day.

Posted by Gary | February 8, 2007 5:55 PM
18

Gary, I wasn't clear then. I apologize.

I don’t dispute the Iraq horror facts you brought up. It just seems to me that the statement that the war would be over if the US troops pulled out leaves one to wonder what would fill the vacuum.

I assume you would expect the new Iraqi government to collapse. Never mind that a majority of Iraq’s citizens used their new found democracy to vote it into existence under the threat of death. OK then, let’s say it collapses for the sake of argument.

I have the smarts to say that I can’t look into the future beyond that point. Will Iraq be another shadowy state like Syria under Iran’s influence? Who knows. But that scenario also spells gasoline at $12 a gallon. Given a high enough price of oil, other nations will have no qualms about going to war over it. The situation is so volatile.

But a pullout with no commitment to help Iraq is not what the USA is all about. We have a moral imperative to help them. We clean up our messes, even those started by President George W. Bush.

Gary, you have talked about unmentionable activity occurring amongst my buttocks, alluded that I sell myself for the pleasure of others, and have questioned my mental capacity. I however, have not broken the decorum of respect I have for fellow sloggers including yourself and have not been ungentlemanly towards you. Please make a note of that.

Posted by Chip Chipmunk | February 8, 2007 8:56 PM
19

@13: Being to told to report for duty in a military deployment is not an illegal order in and of itself. Watada specifically refused to deploy to Iraq because he believes the war is illegal. That is where he and the US Army part ways.


And yes, in the preposterous scenario you propose, the junior officer would refuse that order on his soldiers' behalf. But he would be punished for it, right or wrong. And if the commander really wanted his orders executed, he would find a means to that end. Whether that would eventually be punished itself is left up to discussion.


Your "Nazi" remark is so off-base it is truly laughable. I despise George Bush, I think most forms of "authority", civilian, police, and military, are pure bullshit artifice, this war is stupid, hubrisitic, and yes, illegal by way of the legislative branch's complicity in rolling over to let Bush do whatever he bids, and is going to set the U.S. back and apart from the rest of the world for the next half-century. BUT in the context of the military, Watada's actions are foolish and unbecoming an officer. Like Gary said, if more officers did what he is doing, we might make some progress, but the fact is that junior officers are going over and taking their lumps as they are expected to. Do they hate it? I'm sure a lot of them do. But a lot of them are also gladly going over there because they either genuinely believe in our purpose in Iraq, or they think they can change things from the ground level. Yes, there are idealists in the military, believe it or not.

Posted by laterite | February 8, 2007 9:11 PM
20

Chip, if we pull out gas will go to $12 a gallon? Sounds like fear mongering to me. Fear, Fear Fear. That is what you and bush and whatnot peddle.
Gas went up with the mere threat of war in 2002. It has almost tripled since then. The war in Iraq has squeezed the market.
Most US troops want to leave Iraq, Most Iraqis want us to leave, most Americans want us to leave. Our Isreali like occupation of Iraq is serving whos intrests? Our vilolent, criminal occupation of Iraq is the problem.
You say, "We have a moral imperative to help them." What in the fuck is moral about killing Iraqis with bombs, and Apache helicopters, and supersonic jets with automatic cannons. The insurgency is mostly Iraqi.
I am baffled about your desire to save the god fucking damed illegal genocidal war. It is idiots like you that have broght us to this moment in time. I want to see every imbecel that voted for bush, charged with a feloney, as well as the liberal hawks.

Posted by Gary | February 8, 2007 9:26 PM
21

Gary, I don’t know where to begin. You are spewing so many extrapolations I have no context to debate you. It’s like trying to pick up jell-o from the kitchen floor.

For one thing, you have no clue as to my political dispositions. I think the war was a mistake as well. But it’s a fact that Prime Minister Maliki wants our continued support. The U.S. is trying to keep Iraq’s infrastructure in tact while the insurgency keeps blowing it up. Everyone agrees, including Bush, that such a commitment cannot be open ended. We will have to go at some point. But we owe it to the world to have a working and sustainable government in place – we owe that to Iraq who voted in clear majorities for a constitution and a better way of governance than a dictatorship.

Posted by Chip Chipmunk | February 8, 2007 10:01 PM
22

Chip, it was not the insurgency that flattened Faluga. It was not the insurgency that bombed as many power plants, bridges, dams, and “infrastructure” as they could to get at the oil fields. Saddam’s major crime in Corporate America eyes was nationalizing the oil fields. He had nothing to do with 9/11. It does not matter what you label yourself, when it is obvious you want the war to continue. You have no desire to debate me but repeat phrases culled from the elites. “We broke it we own it,” rehashes that prevent the people from looking at the war and its costs to us a society, which I have listed in my earlier posts.I think Watada sees this.
America is not in Iraq to build democracy, it is there to control the oil, as well as execute the “Plan for the New American Century”, and “Securing the Realm.” You can find these documents online.
America has already lost the war. We are about to go bankrupt. Bush and Co are thinking about Nuking Iran. The troops want to come home. Most Iraqis want us to leave, who cares what Maliki the puppet says, if he did say that. You are a deadender.
Sorry if I am not as nice as Impeachment is off the table Nanci Pelosi. She really is a nice dressed lady.

Posted by Gary | February 8, 2007 10:42 PM

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