Iraq war resister gets mistrial

From the Japanese American Nichi Bei Times, Feb. 16:

On Feb. 7, the court martial of Ehren Watada, the Sansei army lieutenant from Hawai’i who refused deployment to Iraq to participate in what he considers an illegal war of aggression, ended in a mistrial. Watada, 28, may find himself back in court, however, for a retrial next month.

The final day of the court martial saw a disagreement over the significance of a Jan. 28 compromise between the defense and prosecution. In that arrangement, the Army agreed to drop two of the four misconduct charges in exchange for Watada’s admission that he made all the statements in question, included in the two remaining misconduct charges.

By signing the agreement, Watada confirmed that he had refused to deploy with his unit to Iraq and had made public statements against the war.

The prosecution felt that, by signing, Watada had implicitly agreed that he had a duty to obey the order to deploy.

When Judge Lt. Col. John Head asked Watada if this was also his understanding, the young lieutenant replied that he intended to admit that he had not deployed to Iraq, but not that he had a duty to go. According to the Rafu Shimpo, the judge then told the prosecution, “You believe that it is a confessional stipulated fact in every element, but the defense doesn’t believe that.”

He went on to say that the stipulation amounted to an admission of guilt and contradicted Watada’s “not guilty” plea, indicating he was uncertain whether or not he would accept the document.

The prosecution then requested a mistrial, saying that much of their case was laid out in that agreement.

“The problem appears to be that the Army wanted to argue that Ehren had implicitly stipulated he had a duty to deploy to Iraq once he received his orders,” Robert Rusky, an attorney and community advocate, explains. “The stipulation was inadequate, and didn’t avoid the real issue in the case, the legality of the Iraq invasion and occupation itself.”

The judge granted the mistrial despite protest from Watada’s civilian attorney Eric Seitz.

Rusky feels that the mistrial decision is the result of Judge Head’s pretrial ruling that the legality of the war could not be debated during the court martial

“This mess shows that the real issue can’t be avoided,” Rusky continued. “How can the Army be allowed to argue Ehren had a duty to comply with the deployment order, which necessarily assumes it was a lawful order, while denying Ehren the right to contest that it was a lawful order? (The ruling) inherently and clearly frames the issue I think we need to emphasize: the legality of the Iraq invasion that the deployment order was part of.”

A retrial is scheduled for March 19, but Watada’s attorney does not believe it will come to pass.

“It’s my belief that there are going to be serious problems re-instating this case,’’ Seitz said, noting that the judge had approved the stipulation after going over it with Watada in detail on the first day of the court martial.

Seitz also stated that he felt the charges must be dismissed, as Watada neither caused nor consented to the mistrial. If the judge were to proceed with the retrial, the attorney said, it would violate the constitutional ban on double jeopardy — being tried twice for the same crime.

However, Eugene Fidell, president of the National Institute of Military Justice, told the San Francisco Chronicle that a court reviewing a judge’s decision will allow the charges to be reinstated unless they consider the decision to be a “abuse of discretion.”

Fidell claims that proving an abuse of discretion is very difficult.

Seitz said the judge could have delayed the trial until the disagreement was cleared up and maintains his belief that the case will not be retried.

See Lt. Watada’s support website.

See our last posts on Iraq and war resisters.

  1. Another one
    From the Denver Post, Jan. 25, via Raw Story:

    Navajo Marine given conscientious-objector status

    Durango – The Marine commandant reversed his earlier decision Wednesday and granted conscientious-objector status to Pvt. Ronnie Tallman, a 19-year-old Navajo from Tuba City, Ariz.

    Tallman believes his newfound calling as a medicine man makes it impossible for him to go to Iraq without spiritually harming himself and his community.

    Tallman learned late Wednesday afternoon that Gen. James T. Conway reversed a Jan. 13 decision denying Tallman a discharge. Tallman said he expected to be released within three weeks.

    “The commandant himself overturned it, saying he had new evidence,” Tallman said from his post at Twentynine Palms, Calif. “I’m really relieved my voice has been heard. There was a lot of grief and heartache before I was heard.”

    While home on leave in November 2005, Tallman said, he underwent a spiritual experience and discovered he had been given the gift of a sacred entity known as teehn leii. The gift is a rare form of spiritual diagnosing and healing called hand-trembling that runs in Tallman’s family. However, the gift can neither be acquired or predicted – it is simply and suddenly bestowed, according to Navajo tradition.

    Navajo spiritual law also holds that Tallman cannot keep the power and serve his people if he participates in killing or war.

    The Dine Hataalii Association, an organization of medicine men recognized by the Navajo Nation, licensed Tallman as a hand-trembler diagnostician. And Navajo Nation President Joe Shirley Jr. wrote a letter urging Tallman’s discharge because “our gifted medicine people are small in numbers.”

    Tallman’s application for conscientious-objector status received recommendations for approval from several Marine officers over the course of a year before reaching the Conscientious Objector Status Screening Board under the commandant.

    Conway nevertheless disapproved the application, writing that Tallman had failed to provide convincing evidence that his beliefs were “sincere and deeply held.”

    Tallman attorney Steve Boos of Durango said he believes a request last week for review of the case in federal court caused the commandant to re-examine the application.

    “Our concern had always been that the folks in Washington, D.C., hadn’t sat down and talked with Ronnie the same way the officers at Twentynine Palms, who had recommended approval, had done,” Boos said.