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.”