The Whole World Will Be Watching

Saturday 06 October 2007

Until today, the story about the impending second trial of United States v. Lt. Ehren Watada was how the Army was planning on a proceeding with very little publicity and almost no witnesses.

It almost worked. In a last-minute ruling at 4:48 pm on Friday, the Hon. Benjamin Settle stayed the Watada trial from beginning on Tuesday, October 9 and set a hearing for Friday, October 19. His ruling also states that the trial cannot begin until at least October 26. The bigger question is whether it will ever happen at all. Now there is no chance that this case is going to escape strict international scrutiny. None.

Antiwar activists are jubilant at this unexpected turn of events, as the anticipated media coverage of this clash will inevitably encourage participation in the nationwide "Iraq Moratorium" community events on October 19 and the national mobilization against the war in eleven major cities on Saturday, October 27. (Source: http://www.unitedforpeace.org/.)

During the first trial in February 2007, Lt. Watada and his defense team put on a stunning display of resistance before a bull-headed judge in the heart of Fort Lewis and in the eyes of the mainstream media. Every prosecution witness had attested to the stout heart and integrity of the defendant. Lt. Watada was about to tell his story about his belief in the illegality of the war in Iraq, based on his officer's oath to the United States Constitution, (Source: http://www.thankyoult.org/content/view/1039/74/.) to what seemed like the entire world. (Source for this and succeeding trial description: http://www.thankyoult.org/content/view/1014/70/#Day%201.)

Abruptly, the judge halted the trial. Lt. Watada had submitted a document in open court at the beginning of the trial admitting that he had knowingly not boarded a plane to Iraq. The judge ruled that the lieutenant had made a fatal admission that would prejudice his defense.

It was the kind of argument that one might expect from a desperate defense attorney, but not from a judge. To top it off, Lt. Watada's own lawyer was asking for the trial to go forward even while the judge had ruled out all of Watada's defenses! It was apparent to observers that there was a real possibility that the military jury would be extremely lenient in deciding on Watada's guilt and sentence.

Since then, the question in activist and legal circles has been whether Lt. Watada should be forced to endure a second trial. The basis of the doctrine of double jeopardy is to ensure that the prosecution doesn't get a "mulligan" ( i.e., "do-over") whenever things aren't going their way.

The word was out that the Army Court of Criminal Appeals had granted a stay, and the assumption was that judges would spend years hoping that this would all somehow go away.

However, when the Army Court of Criminal Appeals ruled this summer in favor of the prosecution, the army saw an opening for a "snap trial". Activists were not following the case closely, believing that the stay was still in effect. Although the appellate court's decision dissolved the stay, that word didn't get out due to lack of publicity.

Two weeks ago, Watada's lawyers had gone to the next level - the U.S. Court of Appeals for the Armed Forces - and that court was apparently happy to do nothing and watch Lt. Watada go down. (Source: 10/5 Seattle P-I.)

The general rule is that a civilian judge will not interfere with a military proceeding. That's apparently why Watada's legal team waited until Wednesday to file their motion for stay. At that point, they could legitimately argue that they had exhausted their remedies.

The squeeze play to avoid publicity was in full effect. Early on Friday, Fort Lewis Public Affairs announced that media wanting to cover the trial had until Saturday at 4:30 pm to register with their office. (Source: David Mitchell and Gerry Condon, Courage to Resist; CtR organizer Jeff Paterson's letter.)

Rather than seek the testimony of journalists as in the initial trial - which only resulted in even further publicity - the Army subpoenaed regional anti-war organizers in an attempt to use their testimony against Lt. Watada.

It was a big moment for Northwest activists, who had been struggling to ensure at least a respectable showing of support for this unexpected trial. Their hands were already full in handling the campaign for Iraq war resister Robin Long, who was arrested on Monday in a small town just north of the Washington state line. Will Iraq War resisters be given sanctuary in Canada, like the Vietnam war resisters? The question is not yet settled, but the outpouring of support persuaded Canadian officials to temporarily release Long on Wednesday rather than deport him back to the US. The Watada victory was their second big win of the week. (Source: Courage to Resist, 10/3)

What has not changed is that Lt. Watada is facing six years in prison. One year of his looming prison term is based on a "conduct unbecoming an officer" charge, solely for a few well-chosen words in a historic speech last year to the Veterans For Peace Convention, with fifty Iraq War veterans standing by his side:

"Today, I speak with you about a radical idea. It is one born from the very concept of the American soldier (or service member). It became instrumental in ending the Vietnam War - but it has been long since forgotten. The idea is this: that to stop an illegal and unjust war, the soldiers can choose to stop fighting it ...

"I tell this to you because you must know that to stop this war, for the soldiers to stop fighting it, they must have the unconditional support of the people. I have seen this support with my own eyes. For me it was a leap of faith.

"For other soldiers, they do not have that luxury. They must know it and you must show it to them. Convince them that no matter how long they sit in prison, no matter how long this country takes to right itself, their families will have a roof over their heads, food in their stomachs, opportunities and education."

Bill Simpich is a civil rights attorney based in San Francisco.