A Win for the Antiwar Movement

By Jeanine Plant, February 10, 2007

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Why was the military in such a hurry to get Ehren Watada out of the public eye?

Primarily, Lt. Col. John Head, the military judge presiding over the case, abruptly raised concerns about the 12-page stipulation of facts the same day that Lt. Watada was to take the stand. Head argued early Wednesday morning that the document was not clearly understood or agreed upon. Prepared two weeks ago by the prosecution and defense, Lt. Watada's attorney Eric Seitz contends that there was no disagreement over the stipulation of facts and that the prosecution was flustered by the judge's sudden skepticism about it.

"We feel that the military was so afraid to allow Ehren to speak to why he took this stance that they deliberately never allowed him to take the stand," said Liz Goldstein, the mobilization coordinator for Lt. Watada's campaign.

The first commissioned officer to publicly refuse to deploy to Iraq, Lt. Watada would have reasoned that he would be violating military code by fighting in a war he's convinced is illegal under the U.S. Constitution, the Geneva Conventions and Nuremberg principles. By fighting in an illegal war, he has argued in the past, he could be charged for war crimes.

The sudden questioning of the stipulation of facts also came "the day after the prosecution rested a poorly presented case," wrote Gulf War resister Jeff Paterson on CouragetoResist.org.

Ann Wright, an activist and former State Department employee who publicly resigned to protest the invasion of Iraq, told WireTap that she was surprised by what she describes as the prosecution's mishandling of the case.

"I was sure they would have had people lined up swearing on a stack of bibles," said Wright, after several an officer testified that Lt. Watada's actions did not, in fact, harm his unit.

"To tell you the truth, Lt. Watada's stand did not have a huge impact" on the unit, nor did it "decrease morale and effectiveness. It had no negative impact on the unit," Lt. Col. Antonia testified for the prosecution, according to Paterson's report. Antonia also described Lt. Watada as a "hard-working, quality officer" up until January 2006, and said he remained "trustworthy and reliable" despite his convictions. "Antonia's primary criticism of Lt. Watada was that he made his opinions public," wrote Paterson.

Even the prosecution's third witness, Richard Swain, a professor at West Point who was brought in to delineate the proper course of action a lieutenant should take when he or she disagrees with policy, was viewed favorably by the defense.

"He enumerated a check list [of what you're supposed to do] and it was almost verbatim what Ehren had done," said Wright. "I don't think it was lost on the judge that the witness had validated Ehren's case."

The feeble testimony of the prosecution's witnesses also raises the specter of a plausible acquittal should the case go into the retrial tentatively scheduled by the judge for March.

David Mitchell, a lawyer and Vietnam war resister who was in Fort Lewis for the week, thinks that the case may never go to court again because of the fear in the military of further publicity. If Lt. Watada were acquitted, Mitchell said, it could be disastrous for the military's reputation.

"I think they may have just wanted to get rid of the case," Mitchell told WireTap. "If [Watada were] acquitted, that would create a problem for other officers as well."

For the most part, though, anti-war activists have discounted the possibility of a retrial because the double jeopardy clause -- which appeared originally in the Fifth Amendment to the U.S. Constitution -- says that a defendant cannot be tried for the same crime twice.

"We are not going to court without appealing it," Seitz told WireTap. "I don't think the government has a chance. The course they chose created the double jeopardy situation which is insurmountable, and now the government is in an untenable position."

"The court is created by a convening order," Seitz added. "This court is now dead."

Lt. Watada faced four years in prison for the charges of missing movement for not deploying and conduct unbecoming of an officer for public anti-war statements. His conviction was considered inevitable.

In the last year, Watada has put a face to the anti-war movement; he gave voice to lesser-ranked, lower-profile G.I. resisters. For many, he also became a hero. Articulating the illegality of the war in such a courageous way captivated the public, says Liz Goldstein, and helped galvanize their fight.

Lt. Watada's mother, Carolyn Ho, described the crowd of nearly 1,500 anti-war activists who traveled to Lewis, Wash., to rally in the lieutenant's support last week as "jubilant" following the ruling.

But she remains skeptical, adding, "I am taking this one day at a time. I don't think that this is the end."