On Thursday, November 8, Hon. Benjamin Settle, a federal court judge, issued a preliminary injunction halting any further court-martial proceedings of 1st Lt. Ehren Watada and effectively ruling against the Army on virtually every issue in the case. This injunction not only extends the stay until the conclusion of the habeas corpus proceedings, but also addresses the specific request for relief from further legal proceedings, stating, “the remedy sought by Petitioner, while rare, is appropriate.” Although the Army issued a press release claiming to “look forward to the opportunity to further explain to the District Court judge the full extent of the protections and safeguards that are afforded to a military accused,” (Seattle Times, 11/9/07), anyone who glances at the court ruling will agree that the Army’s only lingering hope is to appeal this ruling to the Ninth Circuit Court of Appeals. Judge Settle wrote “for several reasons … it is likely that [Lt. Watada] will succeed on the merits of his double jeopardy claim” (Order, p. 22; a copy of the order is attached). The court held that the military judge acted “irrationally, irresponsibly, precipitately” (Order, page 31) in failing to consider feasible alternatives to a mistrial, and there was no good reason to stop the proceedings. This ruling came after the repeated refusal of the military appeals courts to free Lt. Watada of the burden of a second court-martial. Lt. Watada’s attorneys have consistently argued that the military should not be allowed a “do-over.” The military judge halted the first court-martial in the wake of admissions by prosecution witnesses regarding Lt. Watada’s integrity and statements that Lt. Watada’s decision not to deploy was an act of conscience. Prior to the initial court-martial, Lt. Ehren Watada told the Army that he was willing to accept a six month sentence for his refusal to lead his unit to fight in Iraq, explaining that he could not violate the oath he took as an officer to defend his country “against all enemies, foreign and domestic,” and that to fight in Iraq would constitute a war crime. The Army responded by trying to make an example of Lt. Watada by demanding a six-year sentence. They took away his defenses, one by one. They continued to add extra charges. Finally, on the day of trial, as I watched the proceedings in the company of soldiers, media, and other civilians, the military judge Lt. Col. John Head took away Lt. Watada’s final expert witness, eliminating critical testimony on military law and tradition and making a fair trial for the lieutenant virtually impossible. To make matters worse, Judge Head allowed the government to call a rebuttal witness, Professor Richard Swain, even though there was no longer any expert witness to rebut. This was to prove to be the Army’s undoing. After Lt. Watada’s superior officers gave unexpectedly favorable evidence on the lieutenant’s integrity, Professor Swain testified that if officers such as Lt. Watada make the determination that they are being asked to commit war crimes “they have to be right. If they’re not right, they have to expect to be held accountable.” Following the testimony of Professor Swain, the prosecutor, Capt. Van Sweringen, was overheard to have said to one of his aides in the courtroom that “Dr. Swain was a disaster.” The prosecution rested its case at the end of the day on February 6. The stage was set on the following morning for Lt. Watada to take control of the proceedings with a dramatic account of why he reasonably believed that the Iraq War was illegal. It was clear to everyone in the courtroom that the defense had made its essential points during the presentation of the government’s case, and that Lt. Watada was going to command the attention of the gathered mass media. Lt. Watada’s attorney then provided a proposed jury instruction to Judge Head offering this argument: that it was reasonable to believe that the Iraq War was illegal. It was apparent the judge did not want Lt. Watada to use this trial as his pulpit. He took a prolonged recess, while courtroom observers tapped their feet. Upon his return, Judge Head seized on this proposed jury instruction and argued that there was confusion about a pretrial agreement that governed the evidence to be used at trial, claiming that Lt. Watada had the mistaken impression that he had the defense of “reasonable belief that the war was illegal” as he had “confessed” to his guilt! Judge Head concluded that due to this supposed confusion, the trial had to stop. In my view, Judge Head’s order was not only nonsense, but intentionally designed to prevent Lt. Watada from challenging the Iraq War to the mass media in a dramatic fashion. It was identical to the treatment that Fathers Phil and Dan Berrigan and their allies have received in American courts for the last forty years in their challenges to American military policy by committing minor property offenses by symbolically “beating swords into plowshares.” In politically sensitive cases, judges go to great lengths to prevent criminal defendants from explaining why they resisted unlawful government acts. Judge Settle’s order scolds Judge Head like a schoolboy in disgrace. The order carefully illustrates that no one was confused about the pretrial agreement. The record reflects that the government and the defense agreed on that point. Nor did Lt. Watada ever “confess” his supposed guilt. To drive the point home, the order adds that even confusion or confession would not have been grounds to stop the trial. The order goes on to emphasize that there was no manifest necessity to stop the trial, and that Judge Head never weighed any feasible alternatives. The Army made an example of Lt. Watada. The lieutenant is feared by Judge Head and the Army prosecutors. He portrays the courage it takes to honor one’s oath to defend the Constitution.
Bill Simpich is a civil rights attorney based in San Francisco.
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