U.S. Army First Lieutenant Ehren Watada finally had an opportunity to speak in his own defense Wednesday and in short order raised meaningful concerns about the prospect that he was being railroaded by prosecutors who had effectively limited his range of defense options. On a surprise motion from the prosecution, the judge then declared a mistrial in the high-profile court martial of the Army officer who refused to deploy to Iraq because he had come to the conclusion that U.S. invasion and occupation of that country was illegal.
The ruling by the military judge, Lt. Col. John Head, does not mean that Lt. Watada is off the hook. After moving for the mistrial, the prosecution asked for a new trial and the judge tentatively scheduled a one for mid-March. But it does mean that a new trial could offer Watada’s defense team more flexibility in arguing that the officer had a legitimate reason for refusing to fight in Iraq.
This is significant because, as Richard Swain, a retired military officer who now teaches ethics at West Point, testified this week: Officers do not have to follow orders that they determine to be illegal. Of course, Swain explained, “if they make that determination, they have to be right. And if they’re not right, they will be held accountable.”
There is no guarantee that Watada’s defense will succeed in convincing a military jury that the war in Iraq is illegal — in fact, there is every reason to believe the officer and his lawyers will have a very hard time doing so — but the prospect that they might be afforded more of an opportunity to mount such a defense could change the dynamic of a second trial.
Because of what is at stake — not just for Watada but for the Army and for the Bush administration — the trial has drawn international attention. And the scene in the courtroom on Wednesday was remarkable.
Under questioning from Head, Watada said that he did not believe the a pretrial stipulation he had signed — in which he acknowledged that he had chosen not to follow orders and deploy with his unit to Iraq — was an admission of guilt. Indeed, Watada explained, he felt he had a right to argue in his defense that the war is illegal and that serving in it would cause him to participate in war crimes.
Throughout the court martial proceeding, the prosecution had built its case against Watada around the argument that what was being determined was a simple question: Did Watada refuse to follow orders. The prosecution made the case that officers are not free to choose whether to serve in a particular war, and that they cannot question the actions and motivations of their commander-in-chief. “He bought shame and disgrace upon himself,” Capt. Jeff Van Sweringen, the Army prosecutor, said of Watada.
According to Hal Bernton’s detailed coverage in the Seattle Times — the trial has taken place at Fort Lewis in Washington state — Sweringen told the court: “The underlying facts to these grave charges are… unassailable.”
That line of argument was complicated by the question of whether Watada had believed he was admitting guilt when he signed the statement acknowledging that he did not deploy with his unit to Iraq.
Under questioning by the judge, it became evident that the officer was not of the belief that he had signed away his right to defend himself.
“I’m not seeing we have a meeting of the minds, here,” the judge finally said. “And if there is not a meeting of the minds, there’s not a contract. Tell me where I’m missing something?”
The Army prosecutors made a last-ditch attempt to suggest that they were not arguing that the agreement represented an admission of guilt by Watada. But Head wasn’t buying it. The judge told the courtroom that, because there was now a debate about the agreement’s meaning, the prosecutors would have to move to reopen their case — which they had finished Tuesday. That would have forced the prosecution to proceed in front of a jury that had been made aware of concerns about the meaning of the pretrial agreement.
That’s when the request for the mistrial was made, and accepted.
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