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The Watada Mistrial

By Jeralyn, Section War In Iraq
Posted on Sat Feb 10, 2007 at 01:10:00 AM EST
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I haven't been following the case of Lt. Ehren Watada, the soldier who refused to deploy to Iraq because he believes the war to be illegal and immoral, who proceeded to a courts martial trial this week, only to have the judge declare a mistrial at the prosecution's request after it had presented its witnesses.

What was up with that? Here's one view. And another.

And a place to discuss it.

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    The Watada Mistrial | 19 comments (19 topical)

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    Illegal orders (none / 0) (#1)
    by Carolyn in Baltimore on Sat Feb 10, 2007 at 08:14:19 AM EST
    It is great that there are several cases wandering through the legal system re: following orders that may or may not be legal.
    It is one way to do force discussion on the illegality of the war, torture, etc and where those orders come from.
    These cases are a big deal - as were Abu Grahaib cases that were whitewashed and the 'little' folk were convicted.

    Violation of Nuremburg Principles (none / 0) (#2)
    by Andreas on Sat Feb 10, 2007 at 02:19:10 PM EST
    Watada's attorney, Eric Seitz, had hoped to introduce the fact that under international law, soldiers have the duty to disobey unlawful orders. For Watada to willingly participate in the unauthorized, illegal, pre-emptive war against Iraq would be a violation of both the Nuremburg Principles and the US Constitution, making him a party to war crimes.

    The defense maintains that Watada's public remarks represent constitutionally protected speech. The Army insists that military personnel do not have the same freedom of political expression when their beliefs include opposition to war or superior officers, including the president. ...

    The right to refuse military orders for reasons of conscience, thought or religious convictions is an international standard of human rights protected by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, both of which have been ratified by the US. If Watada is convicted, Amnesty International has already announced that he will be named a prisoner of conscience held by the US in violation of international law.

    US Army court martial against war resister lieutenant ends in mistrial
    By Naomi Spencer, 9 February 2007

    Is the Watada Mistrial the End of the Case? (none / 0) (#3)
    by Peter G on Sat Feb 10, 2007 at 05:22:50 PM EST
    My understanding of what happened, from reading a lot of the coverage, is that the judge aborted the trial when he concluded, after the prosecution had rested its case, that the prosecuting JAG had a different understanding of the defendant's stipulation to having acted "intentionally" than did Watada himself.  When the judge grants a mistrial during a criminal trial on his own motion, over defense objection, the case ends then and there, unless the government attempts to relist it for trial.  In that event, the defense can be expected to move for dismissal on double jeopardy grounds.  Under Supreme Court precedent, the determinative question is whether there was "manifest necessity" for the mistrial.  Interestingly, the leading case, Wade v. Hunter, a Supreme Court decision from 1949, arose out of a federal habeas corpus challenge to the affirmance of a court martial conviction, so there is no doubt that this constitutional principle applies to courts martial as well as civilian criminal trials.  So, that's the Watada issue - was it manifestly necessary for the judge to abort the trial as he did?  The eyewitness courtroom observer report published on Truthout, giving details about how it all went down, strongly suggests there was no "manifest necessity."  How the military appellate courts or even a federal habeas corpus court on later review will interpret the record, of course, is not to be taken for granted.

    the law's legality (none / 0) (#4)
    by diogenes on Sat Feb 10, 2007 at 11:20:31 PM EST
    If the Iraq war is so obviously illegal then isn't it negligent for the Democratic majority in the house to not impeach President Bush?

    Yes. (none / 0) (#5)
    by Sailor on Sun Feb 11, 2007 at 10:52:26 AM EST


    Parent
    Regarding the mistrial of Lt. Watada (none / 0) (#6)
    by Erroll on Tue Feb 13, 2007 at 08:48:54 PM EST
    My apologies for having posted comments concerning Lt. Watada at the post entitled "Libby to Rest Without Calling Cheney or Libby" on Feb. 13. If I had known that there was actually a post devoted to The Watada Mistrial I certainly would have originally posted them here instead of at the aforementioned "Libby... post. It was only through a great deal of difficulty that I was able to locate this post concerning Lt. Watada. It certainly was not my intent to run the risk of provoking the wrath of Jeralyn E. Merritt. If anyone is still commenting about the lieutenant here, please see my comments at the post "Libby to Rest Without Calling Cheney or Libby" on Feb. 13, 2007.

    Thank You.

    Erroll, continuing here (none / 0) (#7)
    by Deconstructionist on Wed Feb 14, 2007 at 07:06:50 AM EST
    "What you failed  to address is the point that I and the law professor at the U. of Wa. made, which is that a judge cannot capriciously decide, not on a motion made by the defense, but by the judge himself, to bring a trial to a halt for absolutely no valid reason whatsoever."
    *

      Well, one can find a law proferssor or two to say just about anything about anything. That means less thean zero.

      As phrased, it would be a valid point but "absolutely no valid reason whatsoever" is unlikely to the ultimate finding. court's do have authority to grant a motion for a mistrial or declare one sua sponte when it is in the interests of justice and reviewing courts (at least at the civilian level -- not sure about military justice standards) review only for abuse of discretion which is a highly deferential standard.

      The reporting, is, as was said, spotty at best but it appears the reason was the coourt's determination that the Parties did not have a clear understanding of their own stipulation and disagreed as to to its meaning and import. Unusual? Yes. An abuse of discretion? Probably not. It appears that Watada is claiming he believed the stipulation was merely a factual admission that he did not report because he believed the war was illegal that did not foreclose presenting evidence to support and basing his defense on the justification theory while the prosecution is claiming that he essentially confessed to all elements of the charged offense and his defense is irrelevant.

      I'm not clear on why the court declared a mistrial rather than simply making a ruling excluding Watada's evidence as irrelevant because it would not recognize the justification theory, but I don't see where the "do-over" would be found prejudicial to the defendant or otherwise an abuse of the court's discretion.

       Perhaps, the court believed it had misled one or both parties to an extent that a fair trial would be impossible and the best solution is a new trial with all the issues clearly ruled upon from the get go.  

    Here's a pretty good article to read (none / 0) (#8)
    by Deconstructionist on Wed Feb 14, 2007 at 07:52:50 AM EST
    I hope I am doing this right.

    OK, appararently that was wrong (none / 0) (#9)
    by Deconstructionist on Wed Feb 14, 2007 at 07:54:33 AM EST
      I'm trying to provide a link  

      Georgetown Law Review via findlaw

    Lt. Watada: daring to speak out (none / 0) (#10)
    by Erroll on Wed Feb 14, 2007 at 10:53:11 AM EST
    I think it would have been more instructive to have provided a link to someone who had actually been in the courtroom witnessing what had taken place in what was suppossed to be a fair trial for Lt. Watada. As Ann Wright points out, the irony is that the Army had attempted to prosecute the lieutenant for his beliefs while denying him the right to explain why he had made those very statements which the Army was so intent upon making sure that he be punished for daring to speak out. Her article points out that the Army's own witnesses undermined their own case while supporting that of the defense. Ms. Wright correctly states that Watada went through his commanding officer as to when and where he could make his statements and his speeches, especially at the Veterans for Peace, where I and other veterans were present, were done off the base, off hours, and when he was out of uniform.

    I never fail to be astonished when people are so quick to condemn someone like Lt. Watada, not for telling lies, but for telling the truth. This astonishment becomes magnified when these criticisms originate, not from a neoconservative web site, which is what one would expect, but from a liberal blog! The great hope is that what the lieutenant has done will help inspire other soldiers to do what he and those in the incredibly moving 2006 documentary Sir! No Sir! [which told the story of the GI resistance during something called the Vietnam War] did and that is to say NO to the war machine, which perpetuates wars for no legitimate reason whatsoever.

    http://www.truthout.org/docs_2006/021207S.shtml

    Parent

    I'm not condemning anyone (none / 0) (#11)
    by Deconstructionist on Wed Feb 14, 2007 at 11:02:18 AM EST
      I provided the link to provide context to the narrow legal issue. If you have a decent link explaining what happened in the courtroom,I'd (and I'm sure others would be interested.)

      Too many people here have a hard time grasping the concept that providing a reasonably  objective, albeit personal, opinion on the LAW AND PROCEDURE and likely outcomes does not indicate one is on any particular side of any particular issue.

      Regardless of what side one might take morally or philosophically, it is helpful to have some understanding of the law and procedure because those will often be more determinative than the personal biases we bring to any debate.

      Personally, I respect Watada's position, but I believe thelaw is likely against him both narrowly in terms of a retrial being barred and more broadly in terms of the viability of his defense. I assume he and his lawyer fully understand this and he is choosing to be a martyr under the law to stand strong for a principle to which he is committed. I admire that, but it doesn't cause me to change my opinion of the strenght of his legal arguments under existing law.

    Parent

    The views of a retired Colonel on Lt. Watada (none / 0) (#13)
    by Erroll on Wed Feb 14, 2007 at 01:02:13 PM EST
    "If you have a decent link explaining what happenend in the courtroom, I'd [and I'm sure others] would be interested." With all due respect, it almost feels as if I have been conducting this discussion in a vacuum. Did you actually bother to click on the link, which I actually did in fact provide, at the end of my comments, written by retired Colonel Ann Wright on truthout.org? In the article, Ann Wright refers to retired Colonel Richard Swain, a professor at West Point, who stated at the trial that military officers should be "creative and critical thinkers" which would certainly include Lt. Watada.

    As Ms. Wright correctly points out, the Army's case against Watada is a mess. As she says "The testimony of the prosecution's own witnesses made a strong case for Lt. Watada's professionalism and respect for military's customs, courtesy and traditions when one dissents from a policy." This observation does not come from an outsider but from someone who had spent almost thirty years in military life.

    Fortunately, your opinion that "the law is against him [Lt. Watada]..." is not universally shared. Again, try clicking on the link, which I did provide for you, to read a perspective from someone who was actually in the courtroom when the judge, NOT the prosecutor, did his best to make sure that Watada was not going to give testimony from the witness stand. The prosecutor himself stated during the trial that the lieutenant was not lying when he signed the stipulation but the judge was determined that Lt. Watada would not be heard. The prosecutor was quite unhappy that the judge had forced the government into a corner but the judge had left him little choice but to ask for the mistrial which the judge then, of course, granted. I believe, as well as many others, that the lieutenant is right, both legally and morally.

    Parent

    Yes (none / 0) (#14)
    by Deconstructionist on Wed Feb 14, 2007 at 01:23:04 PM EST
    and  also followed the link in that link.

     Neither comes remotely close to what I would describe as a decent link explaining what happened in the courtroom. Both accounts are biased to the point of laughability, very poorly written and internally contradictory as to some points and also not consistent with one another.

      I await a link to a decent account.

      That said, although I think that if it comes to it Watada will lose his motion to bar a retrial and any appeal of that denial, i'd agree that is a closer and more problematic issue than the viability of his justification defense.

      The "authorities"  cited all overlook the problem that "manifest necessity" is joined by the conjunctive "or"  to the phrase "the ends of public justice would be defeated."

       They also overlook that it is the trial court in the first instance who  makes the call on necessity or defeat of justice and that a reviewing court only reiviews for abuse of discretion related to that ruling.

      I don't think  Watada's best option legally is continuing to defend with these arguments. If he is looking to avoid conviction or minimize punishment cutting a deal (which the prosecution might well entertain) would likely be his best option. But, as I have said, I doubt that ius his overriding objective. I think he is trying to make a political point and in that case "soldiering on" with the defense makes a lot of sense. I respect that. willingness to fight, especially likely losing battles, to promote one's principles is admirable.
     

    Parent

    Refusing to recognize the truth (none / 0) (#15)
    by Erroll on Wed Feb 14, 2007 at 02:40:07 PM EST
    I realize that this will be like shouting into the wind but, to use your phrase, I will attempt to "soldier on." I have quoted from a law professor and  a military officer whose statements would seem to support Watada and given an account of a former military officer concerning the trial of Lt. Watada who, again, was actually there when the trial took place but you airly dismiss them as not even worth taking into account. You refuse to see the forest for the trees, which is to acknowledge that the prosecution suffered a major blow to their case, a case which all the so-called experts believed was a slam dunk for the prosecution.

    You had claimed earlier that the defendant had somehow misunderstood what was written in the stipulation despite my attempt to point out to you, apparently in vain, that the judge had gone over the stipulation with both sides earlier in the week and had gone over the document again with the lieutenant literally line by line on Mon., Feb. 5., to the mutual satisfaction of everyone involved. All of a sudden, just before the lieutenant was about to testify, Judge Head states, out of the clear blue, that Lt. Watada did not somehow understand what he signed. For you,  to claim that the judge was simply trying to clear up an [alleged] misuderstanding  is simply beyond belief. To say that that argument strains credibility is to put it in an extremely mild way. The irony is that you describe those who have written favorably about the lieutenant as being biased while conveniently ignoring your own blatant biases regarding how Watada has been treated during his mistrial. To use a legal term, the facts speak for themselves.

    Parent

    the nice thing is (none / 0) (#16)
    by Deconstructionist on Wed Feb 14, 2007 at 03:27:48 PM EST
     unless the parties reach a deal, these issues will be resolved, and then we will see whose speculation is superior.

      I did not say watada misunderstood the stipulation. i said that appearently that was the COURT'S determination. It does not strain credulity for me to state what all the sources seem to agree the COURT found.

       If you cannot perceive the bias in the links you provided, well, so be it.

      The issue remains whether the COURT will rule that he may be retried. It also remains to be seen whether the COURT rules that he may be tried on the counts that were dismissed as part of the deal which included the stipulation that the COURT ruled did not mean what the parties believed it to mean. Conceivably, since those counts were dismissed before the panel (equivalent of a jury) was sworn, it could be ruled that even if the counts actually brought to trial are now barred -- those counts are not.

       I fail to see why you get so emotionally upset simply because I pointout that the biased and simplistic summaries provided leave a lot to be desired and that the issues are not near so clear cut as Watada's advocates suggest.

     

    Parent

    Criticism of Wtada (none / 0) (#12)
    by Peaches on Wed Feb 14, 2007 at 11:03:16 AM EST
    Erroll,

    I haven't seen any criticism of Watada for telling the truth or for his actions here at TL. I think Decon is looking at the case from the rule of law perspectiv and not based on whether or not Watada is telling the truth or even if he is right or wrong. But, maybe I missed something.

    Where have you seen criticism of Watada.

    The trial of Lt. Watada (none / 0) (#17)
    by Erroll on Wed Feb 14, 2007 at 05:05:55 PM EST
    Deconstructionist

    I fail to see why you claim that I am "emotionally upset". Can it be because I have the temerity to point out the flaws in the court's, if not also your, arguments? It would seem that labeling someone as being [allegedly] "emotionally upset" would be the same thing as the neoconservatives claiming that the anti-war movement is too shrill.  Seemingly, any argument, no matter how it is framed [even that of Francis Boyle, Professor of international law at University of Illinois College of Law; Harvard Ph.D. in political science and scholar in international law and human rights, whom Jeralyn Merritt had linked to at the top of the post] you would dismiss, I am sure, as being beneath your consideration as being credible because you would judge them as being biased. Your logic seems to be that anyone who dares to support the lieutenant must then automatically be considered "biased" in how he or she looks at the case, if not "emotionally upset."

    You take offense when I said that you had said that Watada had misunderstood what the stipulation had said, stating that that is what the court had ruled.  You have a great knack for stating the obvious. But your point seems moot considering that instead of distancing yourself from how the court ruled, you certainly have given the impression that you have, instead, embraced the way that the court ruled against Watada. At the risk of belaboring the point, it would seem obvious to almost everyone that Judge Head had to do something extremely drastic in order to prevent Watada from taking the stand, where he was in great danger of blurting out the truth regarding this most unnecessary war/occupation in Iraq. So in order not to take that risk, Judge Head practically pleaded with the prosecution to declare a mistrial and that is exactly what happened. As I said before, it will be interesting to see if the military decides to retry the lieutenant or if they will try their utmost to work out a deal to allow Watada to resign, which is what Lt. Watada has been seeking all along.

    Erroll and Decon (none / 0) (#18)
    by Gabriel Malor on Wed Feb 14, 2007 at 05:53:56 PM EST
    Erroll,

    First, I don't want to put words in Decon's face, but, for me, it appeared that you were "emotionally upset" because you showed up here at TalkLeft with a serious fixation on the Watada case. You've never commented about anything but the Watada case and you've been so eager to talk about it and only it that you started talking about it in unrelated posts.

    Also, in your first reply to Decon in this post you accused him of criticising Watada for telling the truth, something that Decon hadn't done. After Decon's next comment, you sarcastically responded that you felt that you were "conducting this discussion in a vacuum." And after the next round you decided that you must be "shouting into the wind."

    You are obviously seriously invested in this case,  to the point where any attempt at discussion is met with sarcasm and claims that you are being ignored. I'd say that seems pretty "emotionally upset."

    Second, I don't know enough about the double jeopardy rules, and I very much appreciate Decon's examination of the issues that this case brings up (and Peter G's, too). I also appreciate that he's then gone the next step and applied what facts we know to the law in order to draw a possible conclusion. He acknowledges up front that our information is limited, and that's undeniable. Incidentally, I also would prefer actual reporting to personal accounts written on Truthout and Huffington Post (let's just say that I don't go running to either site when I'm looking for unbiased news).

    Also, I note that you haven't even attempted to address Decon's observation that the witness accounts you are relying on suffer from internal and external inconsistencies. Rather than exclaiming once again that you are a "lone voice" speaking truth in this great big wilderness, you could actually start addressing the points that Decon has raised.

    Finally, I want to note that there seems to be an inconsistency in your own position. You wrote, "I suspect that Judge Head may have become terrified at the prospect of Watada exposing the lies of the Bush administration while being under oath." And yet, the military has all along wanted to pursue the court martial. Why is the military unconcerned about the Administration's "lies", but the military judge is "terrified"? As you note upthread, if the military wanted to get out of this, they could simply make a deal with Watada, something he is willing to do.

    Parent

    The case of Lt. Watada (none / 0) (#19)
    by Erroll on Wed Feb 14, 2007 at 07:20:08 PM EST
    Gabriel Malor

    I will attempt to reply to your comments [accusations?] as best as possible. Apparently, you seem to be looking quite suspiciously [for what I do not know] at the fact that this, most likely, is the first time that I have posted comments here. Forgive my niavete, but I am simply unable to understand why you seem to believe that to be a bad thing. If you had read my first comments which, much to the chagrin of Jeralyn Merritt, I had erroneously posted at "Libby to Rest Without Calling Cheney or Libby" [I had not realized that Ms. Merritt had a post devoted to Lt. Watada] you would have discovered that I was simply trying to discover what Ms. Merritt, being an attorney and, I assume, a liberal, thought about the Watada trial. You seem to think that there was some type of sinister plot that I was attempting to carry out, against whom I do not know.

    Second, the reason that I told Decon. that I seemed to be discussing this in a vacuum was because he had claimed that I had not provided a link that was not "decent", because, apparently he believes that those links are biased if they support the lieutenant. The same reason basically applied to my next post which you thought was so awful, when I told him that it seemed again to be like shouting into a vacuum. It seemed that no matter who I might cite as being supportive of Lt. Watada, they would not be able to meet the rigid criteria of Decon. I listed what appeared to me to be the very impressive credientials of Francis Boyle, linked by Ms. Merritt, but apparently Mr. Boyle was not deemed to be either erudite enough or somehow unbiased to pass Decon's demanding standards. I  do not know what inconsistencies of the witnesses who were present at the trial that Deconstructionist is talking about.

    Third, I am simply unable to make sense of your last point. You claim that I am somehow inconsistent when I point out, I believe justifiably, that "Judge Head may have become terrified at the prospect of Watada exposing the lies of the Bush administration while being under oath" while stating that "the military has all along wanted to pursue the court-martial." You then point out, as I did, that the military could have allowed Watada to resign. The point I was attempting to make about Judge Head and the trial is that while the government is quite willing to prosecute Watada for missing movement and conduct unbecoming, the irony and the injustice of that trial was that the Army was not only not interested in not hearing the lieutenant's defense but the judge prohibited the defense counsel from bringing it up, which would have raised issues such as Article Six of the U.S. Constitution, the Geneva Convention, international treaties, and the Nuremberg Principles, such as Principle VI, which specifically dealt with
    a. Crimes against peace
    b. War crimes
    c. Crimes against humanity
    and Principle IV, which stated that trying to claim that "I was only following orders" is never an excuse and does not absolve one from the responsibility of what one has done. German officers and leaders found out that that excuse did not work too well as the Nuremberg court ordered that they be hanged for their crimes. The great irony here is that Lt. Watada was being prosecuted for refusing to do exactly that.

    I had said this before but I think that it bears repeating. I genuinely try not to engage in hyperbole but I am truly astonished when I come across people like Deconstrucionist and you on what is supposed to be a liberal site who, instead of embracing who liberals should consider one of their true heroes, speaking out against this illegal war in an intelligent and articulate manner, instead try to finds ways to justify why the Army should have found Watada guilty, as when Decon. refers to people who support Watada as being advocates but does not see himself as being in that camp. If you believe that I am somehow being extreme in my [justifiable] defense of the lieutenant [without, I might add, despite what you seem to believe, engaging in vitriol or ad hominem attacks] then I will certainly wear that as a badge of honor. As I said on my earlier comments, the hope is that more soldiers and people in the military will emulate what Lt. Watada has done and what the IVAW has done and what those in the incredibly moving 2006 documentary Sir! No Sir did, which was to speak out against another illegal war in a place called Vietnam and which focused on the GI resistance, and, like Iraq, said NO to blindly obeying the war machine.

    Parent

    The Watada Mistrial | 19 comments (19 topical)

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