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.

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."

Watada's dissent was intended to spark a movement of civil resistance on the part of the American people. As he told the Veterans for Peace annual convention in Seattle recently, the peace movement needs a change of strategy.

"To stop an illegal and unjust war, the soldiers can choose to stop fighting it.... If soldiers realized this war is contrary to what the Constitution extols--if they stood up and threw their weapons down--no President could ever initiate a war of choice again," he said.

But the young officer's appeal is not only to people in the military. He told the Veterans, "Should citizens choose to remain silent through self-imposed ignorance or choice, it makes them as culpable as the soldiers in these crimes." In the Watada, Resister video, he added, "No longer can any American citizen or organization simply sit on the fence and say, Well, we don't take a position on the war, because the war in itself is unconstitutional in many forms, and we as Americans have to step up and say either we agree with what's going on or we disagree with what's going on.... If you disagree...then you are going to have to ask yourself what are you willing to sacrifice of yourself in order to correct the injustice and wrongs of this government in regard to the Iraq War."

"We all take part in it--if you pay your taxes, you're taking part in this war. We all have a responsibility, as they determined after Nuremberg, whether you're the lowest soldier or the highest ranking general, or just a regular civilian, we all have responsibility...to resist and refuse enabling and condoning this criminal behavior," he said.

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