The moving finger writes, and having writ moves on

February 10, 2007 8:27 AM

Watada case mistrial declared A new trial has been scheduled, but the attorney for the defense says they will invoke double jeopardy if it goes forward. The army has apparently tried to compel reporters to testify in the case. Plenty of people weighing in on the case lauding him or calling him a caudillo. (previously and oblig. NYT link)
posted by Smedleyman (33 comments total)

That 'caudillo' link is troubling (other silly ideas aside) to me in respect to civilian control of government. I don't believe refusing to fight in the manner Watada is going about it usurps civilian control. He did offer to fight in Afghanistan after all. But it would lead to a major crisis. Debatable as to how bad a thing that might be, but very very dangerous. Still: "I speak as a citizen of the world, for the world as it stands aghast at the path we have taken. I speak as one who loves America, to the leaders of our own nation: The great initiative in this war is ours; the initiative to stop it must be ours." - MLK
posted by Smedleyman at 8:34 AM on February 10, 2007

It's a stalling tactic. The new trial is set for March.
Coincidentally, that is when the strike force aircraft carrier group is set to be in place around Iran.

Strange, that.
They need as many distractions in the news that they can get around that time.
posted by Balisong at 8:37 AM on February 10, 2007

Extensive coverage of the trial and developments over at Democracy Now. Unfortunately:

A military judge ruled Watada cannot present evidence challenging the war’s legality nor explain what motivated him to resist his deployment order.

The caudillo essay is troubling but doesn't really examine the fact that those that enlist are placing trust in elected leadership that they will not be sent on illegal wars of choice or convenience and they will be deployed for imminent threats directly affecting US interests. When elected civilian leaders break this trust, soldiers have a duty to refuse to blindly serve (and put themselves at risk for violating international laws governing conduct of war).

I wish the legality of the war could be included in the trial (if a second trial happens) just this small crack in the shell could open up a complete, judicial review of the legality and Constitutionality of the war.
posted by ao4047 at 8:45 AM on February 10, 2007

Watade is a true patriot.
Oppressive government finally called out for it's abuse of our volunteer forces.

More people like him need to make the same stand.
posted by stevejensen at 8:51 AM on February 10, 2007

"As double jeopardy applies only to charges that were the subject of an earlier final judgment, there are many situations in which it does not apply despite the appearance of a retrial. For example, a second trial held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilty or not guilty."^
posted by phaedon at 8:54 AM on February 10, 2007

He needs to be hung as an example of what happens when you refuse orders. Even if the war is totally illegal, his oath requires him to serve. At least he's not in combat where his actions can endanger the soldiers he would be leading.
posted by acetonic at 8:56 AM on February 10, 2007

I thought it was the responsibility of soldiers to disobey illegal orders. Isn't that how we prosecuted the remaining Nazis after WWII—under the presumption that simply following orders was inadequate? Isn't that why we see people like Hugh Thompson and Lawrence Colburn as heroes?

I don't see how the question of this war's legality can't be brought up in the trial. Except for the fact that the judge is a fucking tool.
posted by Civil_Disobedient at 8:59 AM on February 10, 2007 [1 favorite]

A military judge ruled Watada cannot present evidence challenging the war’s legality nor explain what motivated him to resist his deployment order.

Which, ulitmately, was what forced the mistrial. Amazing how a very simple logical fallacy can blow up an entire court case.

The caudillo essay is troubling but doesn't really examine the fact that those that enlist are placing trust in elected leadership that they will not be sent on illegal wars of choice or convenience and they will be deployed for imminent threats directly affecting US interests. When elected civilian leaders break this trust, soldiers have a duty to refuse to blindly serve (and put themselves at risk for violating international laws governing conduct of war).

That wall is there for a reason, though. It also helps keep us from a military dictatorship. Officers swear an oath to the Constitution, not the president. You can dissent, but you better have a damn good reason, and it better be clear. Oath and duty, scary as it seems, keep us from a military junta rolling into Washington. They also mean that Dubya will leave office January 20, 2009, lest the tanks roll in to remind him that he has an oath to serve, too.

I'm hoping that they let Watada make his defense so we can all hear his "damn good reason." I'm getting the sense, though, that the military will seek a settlement and quietly end this without a public hearing.
posted by dw at 9:03 AM on February 10, 2007

surfurrus's previous link to thankyoult.com, watada does youtube.
posted by phaedon at 9:04 AM on February 10, 2007

It's a war of connivance and the new deployment is a troop splurge. Sometimes the the truth comes out with sloppy typing and a spellchecker.
posted by srboisvert at 9:22 AM on February 10, 2007

"He needs to be hung as an example of what happens when you refuse orders."
I guess you have a point there. So would you be ok with hanging anyone who presented fabricated evidence or false testimony to get approval to go to war?
Seems fair to me.
posted by 2sheets at 9:49 AM on February 10, 2007

If he believes the war is illegal and immoral than he has no choice but to refuse. And the military has no choice but to put him in jail for it.
posted by obfusciatrist at 9:59 AM on February 10, 2007

civil disobedient: What evidence do you expect Watada to present? I mean, reasonable minds can disagree about whether the war was proper (at the time, looking back, whatever), but what kind of case do you think Watada could present to show that the war was illegal? That there was no congressional authorization? That the war defied some international principles? Seriously, put aside the sturm und drang, and the case Watada might put on could be more embarrassing to those who object to the Iraq war than you think.

Acetone: you mean "hanged," not "hung."
posted by Slap Factory at 10:05 AM on February 10, 2007

What evidence do you expect Watada to present?

I expect all the evidence that has accumulated over the past couple of years that has been circulating in newspapers, movies, TV shows, radio programs... but most assuredly not in any court of law until now.

For instance, just off the top of my head, the Downing Street memo.
posted by Civil_Disobedient at 10:38 AM on February 10, 2007

Seriously, put aside the sturm und drang

You realize this is MeFi, right? You may as well ask people to set aside their fingers before typing their response. ;-)

But I do agree with Slap Factory -- Watada has no case. Not only does he have no hard evidence of illegal orders, that evidence is irrelevant to the case.

He has to prove that his specific orders are illegal. So forget about claims of illegality of the war -- he has to show that his specific order to deploy to Iraq is inherently illegal.

In other words, he's not on trial for refusing to machine gun civilians. He's on trial for missing troop movement. In other words, he's on trial for failing to show up for duty.

IANAL, but I see many people failing to understand the legal concept of relevance. You can swear up and down that the war is illegal, and hey, you might be right. But that's just not relevant to the Watada case.
posted by frogan at 10:52 AM on February 10, 2007

I'd have to agree with frogan: He has to prove that his specific orders are illegal. So forget about claims of illegality of the war -- he has to show that his specific order to deploy to Iraq is inherently illegal.

That said:

Slap Factory: --what kind of case do you think Watada could present to show that the war was illegal? ... That the war defied some international principles?

Under the US constitution, any international treaties that the US federal government has signed and ratified are the law of the land. I don't think this is well understood. Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

So the legality of the war can be challenged on the grounds that it violates treaties which the US has signed and ratified: in particular, those outlawing wars of aggression and requiring UN Security Council approval for military action. The UN charter (ratified by the US in July 1945) would be the obvious place to start. (Note that NATO's war against Serbia over Kosovo could also be challenged, since NATO didn't get UN Security Council approval.)
posted by russilwvong at 10:58 AM on February 10, 2007

For instance, just off the top of my head, the Downing Street memo.

Definitely evidence that the Bush administration is a bunch of cellar-dwelling freaks, and that anyone that voted for them is a fool.

But sadly, not evidence of illegality.

"So, what's your evidence the war is illegal?"
"Some British official wrote that he thought policy was being fixed around the facts."
"That's it?"
"That's it."
"Well, I think you've got a dead body in your closet."
"But I don't."
"Yeah, but I think you do. Your house kinda smells funny, so put these handcuffs on..."
posted by frogan at 11:01 AM on February 10, 2007

frogan: so what's your take on the specific points in russilwvong's argument?

Regardless of the administration's position on the quaintness of the Geneva Conventions and other international treaties to which the US is a signatory, the Constitutional requirement to respect international agreements as law is clear, and no authorized legislative or judicial body ever authorized the President to violate international law, even when granting the more expansive powers given to the executive branch to prosecute the seemingly never-ending War on Nameless Dread. So you could easily argue the international law angle russilvwong suggests.

Another line of argument might go as follows: It's an established matter of the public record that the congressionally authorized military action in Iraq came to a successful conclusion and achieved all of its major military goals ("Mission accomplished! Woo-hoo!"). The President himself is on the record acknowledging that success.

The war ended; we won. So any further military action or escalation of combat in Iraq should have required additional congressional authorization. To start major combat operations up again should have required an act of congress. But Bush didn't bother with congressional authorization, and simply continued to prosecute the war on the pretext that it fell within his authority to prosecute the War on Nameless Dread; but if that were really so, he would never have needed authorization from congress for the use of force in Iraq in the first place. QED: The current escalation of military operations in Iraq and all major combat operations since President Bush officially declared the end of major combat are illegal under domestic law.
posted by saulgoodman at 2:16 PM on February 10, 2007

Of course, IANAL, so it could all depend on what your definition of "illegal" is: Does it mean "illegal" under current law, or "illegal" under the laws as we'd like to rewrite them after the fact? In other words, do we commit crimes with the laws we have, or with the laws we wish we had?
posted by saulgoodman at 2:21 PM on February 10, 2007

From my limited knowledge about military courts, it's pretty clear that your guilt or innocence is a foregone conclusion before the trial starts. It was clear to me that Watada was going to do time, as he should have. I oppose the war, but refusing to deploy is different from a refusal to tortue somebody or throw a grenade into an innocent family's living room.

Which makes me think that the US military is looking increasingly incompetent these days. The can't even stage a show trial right.
posted by bardic at 4:14 PM on February 10, 2007

You'd think that getting a conviction in a court martial in a case where the defendant refused to go to Iraq because he thinks the war is illegal and the judge excludes any discussion or evidence on the legality of the war to be a slam dunk, but no.

One take:

And then LT Watada was about to take the stand on his own behalf and explain to the jury that he did not deploy to Iraq because he believed the war to be illegal. Judge Head realized that he had lost control of the railroad; that these legal arguments were going to get to the jury; and that there was a good chance the jury would acquit Lt Watada of one, more or all charges. So Judge Head used the stipulation as a pretext to call a mistrial and avoid a serious defeat for the Army.
...
Head pulled the plug on the JAG case because he realized that if Lt Watada was acquitted on any of these charges, which was quite likely, it would be a great blow to the Pentagon, the Bush Administration and the continuance of the war. So Head declared a mistrial. The problem is that by then the JAG case was closed, Lt Watada was about to testify on behalf of his defense, so jeopardy had attached and thus a re-prosecution would be barred by the Double-Jeopardy Clause. But as Head saw it, that would be a lot better for the Army, the Pentagon, Bush and the War than a defeat for them all at the GCM.

posted by kirkaracha at 5:00 PM on February 10, 2007

Which is insane, because it's obvious that 95% of the American public don't know who Watada is.

I vote rank incompetence. Trying to defend "Bush's War"? Most Americans don't give a fuck about a single soldier, even if he is an officer.
posted by bardic at 5:48 PM on February 10, 2007

frogan: so what's your take on the specific points in russilwvong's argument?

IANAL, but again, if I were the prosecution, I'd still argue the relevance of that opposing argument. Watada deliberately missed movement (not exactly a run-of-the-mill crime, even in peacetime). Watada claims ... what exactly? That the movement order by itself is a violation of an international treaty? A movement order is not war-making. Therefore, claims it was an illegal war are not relevant.

Otherwise, you could make this claim right on down the chain. Do I get to reject an order to peel potatoes because the war is illegal? After all, peeling potatoes is part of the war effort...

Also, Watada claimed he was willing to volunteer for duty in Afghanistan. The UN didn't sanction that war, either. Watada doesn't get to cherry-pick his motivations here.

Finally, if I were a real sharp lawyer, I'd point out that at the specific time Watada missed movement (June 2006), the Iraqi government was sovereign and had made legal arrangements for the U.S. military to be operating on its soil*, thereby making claims of treaty violations moot. Watada is therefore claiming an objection to an illegal order given before he even joined the military. WTF?

The war is a travesty. But Watada has no case. He should've just resigned his commission.

* Go ahead and argue whether the Iraqi government is being strong-armed by the U.S. I have to agree with you. But legally this is the case.
posted by frogan at 8:30 PM on February 10, 2007

frogan: Also, Watada claimed he was willing to volunteer for duty in Afghanistan. The UN didn't sanction that war, either.

But in the case of Afghanistan, the US was attacked. The UN Charter allows for self-defense, under Article 51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
posted by russilwvong at 12:38 AM on February 11, 2007

But in the case of Afghanistan, the US was attacked.

This still doesn't allow Watada to cherry-pick which orders he's willing to follow and which he won't. I contrasted Afghanistan to show that Watada apparently only objects to "treaty violations" when it suits his worldview. This just weakens his already shaky position.

Besides, the US was not technically attacked by the sovereign government of Afghanistan and didn't immediately move on the Taliban following 9/11. On the contrary, the nation was invaded because it failed to respond to U.S. demands to turn over Osama bin Laden and shut down terrorist camps. From Wikipedia:

...the Taliban rejected the ultimatum on September 21, 2001, saying there was no evidence in their possession linking bin Laden to the September 11 attacks, and that if the US could supply such evidence, the handover would commence. The US declined.

...

On October 7, 2001 the United States, aided by the United Kingdom and supported by a coalition of other countries including the NATO alliance, began the military invasion of Afghanistan, including bombing Taliban and al-Qaeda related camps. [11][12] It was not until October 14, 2001 that the Taliban openly offered to hand bin Laden over to a third country for trial, but only if they were given evidence of bin Laden's involvement in 9/11. [13] The U.S. rejected this offer as well and continued with military operations, code named Operation Enduring Freedom.

The UN Security Council had issued Resolutions 1267 and 1333 in 1999 and 2000 directed towards the Taliban which applied financial and military hardware sanctions to encourage them to turn over bin Laden to appropriate authorities for trial in the deadly bombings of two U.S. embassies in Africa in August 1998, and close terrorist training camps.

The UN Security Council did not authorize use of force on Afghanistan by any new resolution subsequent to the September 11 attacks.
posted by frogan at 10:28 AM on February 11, 2007

Good info, smedleyman.

That 'caudillo' link is troubling (other silly ideas aside) to me in respect to civilian control of government. I don't believe refusing to fight in the manner Watada is going about it usurps civilian control.

This essay was on the "hawaiireporter.com" site -- a site that is infamous for slander, sleeze and general limbaughism. And ... I agree that Watada's case does not in any way infer that the military has any right to direct political policy. It is a case about personal conscience.

And THAT is why the millitary is going to lose (or give up). Watada tried three times to resign before he made statements ... AND he asked for an alternate assignment. He was not seeking a confrontation. He is not anti-military or even anti-war.

Someone in the military thought they could make an example of him; I think they have learned otherwise. That decision for a mistrial was way out of left field. Even if Seitz's request for a double jeopardy verdict is denied, he will be appealing to a higher court.

The military is just going to look worse and worse. There are few in the country who disagree with Watada's reasoning (even if they don't like his actions) ... and there are even peopel who are now using Watada's words to discourage ANY more military recruitment ANYWHERE in the country.

I fully believe the military is looking for a way out of this mess.
posted by Surfurrus at 11:15 AM on February 11, 2007

frogan: This still doesn't allow Watada to cherry-pick which orders he's willing to follow and which he won't.

Agreed.

Besides, the US was not technically attacked by the sovereign government of Afghanistan and didn't immediately move on the Taliban following 9/11. On the contrary, the nation was invaded because it failed to respond to U.S. demands to turn over Osama bin Laden and shut down terrorist camps.

Sure, but the US would have a strong argument that its war with Afghanistan complied with Article 51. It has no such argument for Iraq, especially given everything we now know about how the evidence for Iraq's having WMD programs was exaggerated.
posted by russilwvong at 6:24 PM on February 11, 2007

It has no such argument for Iraq

Well, I don't want to belabor the point, but again, I don't see the legal relevance to Watada's missed movement.

Article 51 can be argued back and forth, and I can see some valid points, nevertheless.

You know, the point that really smacked me in the face was when I realized the timing of it all -- Watada wasn't even in the military until after Iraq was sovereign. His order -- his specific order -- couldn't possibly be an Article 51 violation, because at the time his order was given, technically, a "war of aggression" was no longer taking place.

A technicality, sure. But the law moves with its own gravity.

Thank you all for an excellent discussion on a sensitive topic, without it devolving into silly bickering.
posted by frogan at 9:39 PM on February 11, 2007

seconded.
posted by Smedleyman at 10:15 PM on February 11, 2007

"He needs to be hung as an example of what happens when you refuse orders. Even if the war is totally illegal, his oath requires him to serve."

A war crime is a war crime.

This war is illegal - Watada is a hero.
posted by rougy at 11:53 PM on February 11, 2007

Don't know what Watada's argument would be failing to obey his troop movement order, but this would be mine:

1) Given that the invasion of Iraq was illegal
2) It follows that the occupation of Iraq is also illegal
3) Whilst even getting onto a plane to go to Iraq would not be illegal, stepping one foot in that country (you could argue) would be as you'd then be a member of an illegal occupying force. Parachuting out mid-flight would not be fun.
4) Arguing that Iraq isn't still occupied and is now completely sovereign I don't find particularly compelling, given that you're still sending troops in years after major military operations have ended :)
5) While the troops are still there, is Iraq actually a sovereign nation? If a politician the US didn't like were to get into power via free elections and demanded the US leave would they actually, or would Bush send the troops into the government offices and declare that, regretfully, insurgents have seized power and its our duty to restore democratic (i.e, American friendly) forces to government? Is Iraqi sovereignty the sort of sovereignty that Cuba has over Guantanamo?
6) I hate to Godwin/play devil's advocate, but if in WWII the Germans had seized Paris, claimed military operations were over, installed a "democratically elected" puppet government and claimed France was now a sovereign nation (but, you know, with German advisors in tank sitting very close by) all the while denouncing those who blew up their armoured columns as terrorists, would anybody buy the idea that France was sovereign?

Of course, even if true that's all irrelevant. No way a courts martial will ever return a verdict which basically says their commander-in-chief is a war criminal.
posted by kaemaril at 2:04 PM on February 12, 2007

would anybody buy the idea that France was sovereign?

Somebody did. ;-)

The Vichy regime was acknowledged as the official government of France by the United States and other countries, including Canada, which was at war with Germany. Even the United Kingdom maintained unofficial contacts with Vichy for some time, until it became apparent that the Vichy Prime Minister Pierre Laval intended full collaboration with the Germans.
posted by frogan at 8:31 PM on February 12, 2007

Yep, and look how that turned out :)
posted by kaemaril at 4:41 PM on February 13, 2007