By Ben Hamamoto, Nichi Bei Times. January 11, 2007
The pretrial hearing for Lt. Ehren Watada, who refused deployment to Iraq to fight in what he calls an illegal war of aggression, began on Jan. 4 in Fort Lewis, Wash.

Watada, 28, is charged with missing movement and four specifications, or counts, of conduct unbecoming an officer.

The first day of the pre-trial set the parameters of what can be expected from the court-martial. The day also saw protests against the war and in support of Watada, including a “die-in” in San Francisco, at which several Nikkei activists were arrested.

Legality of War Debate

During the four-hour pretrial hearing, the prosecution and defense reportedly argued over what would be allowed during the actual court martial, which is set to begin on Feb. 5. Watada’s civilian attorney Eric Seitz requested that the judge allow him to argue the legality of the war in court, by presenting what he called “overwhelming evidence that the war is illegal, beyond any doubt.”

According to a report in The Olympian, Capt. Daniel Kuecker, the lead prosecutor, argued that under the “political question doctrine” the courts defer to executive or legislative branch jurisdiction on the question of the war’s legality. The executive and legislative branch approved the war in 2003, Kuecker argued, therefore rendering Watada’s motive for missing movement irrelevant to the case.

Judge Lt. Colonel John Head initially agreed that the court martial is only designed to determine what Lt. Watada was ordered and declined to do, regardless of intent. However, the judge later decided that by charging Watada with contemptuous speech as well as with missing movement, the prosecution has effectively made motive relevant.

“Aren’t you trying to block these issues from coming in the front door, but opening up the back door?” the judge reportedly asked the prosecution. “You have charged motive as an offense.”

Head said he would issue a written ruling on the request later.

Attorney Seitz said that if he were not able to present the evidence in court, he would present it during the appeals process before the military appeals court and the Supreme Court.

“The legality of the Iraq War is not merely a political question. Lt. Watada’s specific intent was to avoid unlawful actions in Iraq,” Seitz said in statement which appeared on the Not In Our Name Website. “For the sake of due process, we need the opportunity to raise this issue.”

Journalists Subpoenaed

Another controversial element to the trial arose when the prosecution subpoenaed journalists and anti-war activists.

San Francisco Bay Area journalist Sarah Olson and Nikkei reporter from Hawai‘i Gregg Kakesako were ordered to testify at the pre-trial as were Seattle-area anti-war activists Phan Nguyen and Gerri Haynes. Bay Area-based freelance reporter Dahr Jamail, an Iraq correspondent for the BBC and Democracy Now, has not been subpoenaed, but appears on the prosecution’s witness list.
The First Amendment rights of journalists have become the subject of controversy in recent years, largely due to the publicity surrounding former New York Times reporter Judith Miller and other reporters who were called to testify in the CIA leak case involving White House aide Lewis “Scooter” Libby.

The subpoenas for the Watada case have alarmed numerous groups including the PEN American Center — described as “an international organization of writers dedicated to advancing literature, defending free expression and fostering international literary fellowship” — the Military Reporters and Editors, and the Society of Professional Journalists.

“If Olson and Kakesako respond to these subpoenas by testifying, they will essentially be participating in the prosecution of their source,” the PEN American Center wrote in a letter to Defense Secretary Robert Gates. “Reporters should not serve as the investigative arm of the government. Such a role compromises their objectivity and can have chilling effects on the press.”

Olson herself also voiced outrage over the subpoenas.

“Doesn’t it fly in the face of the First Amendment to compel a journalist to participate in a government prosecution against a source,” she wrote in an open letter, “particularly in matters related to personal political speech?

“What could be more hostile to the idea of a free press than a journalist participating in the suppression of newsworthy speech?”

While it’s not uncommon for journalists to be asked to verify the accuracy of their reporting in civilian court, Olson sees this case as different because she feels it sends a harmful message to journalists and dissenters alike.

“It seems clear that the U.S. Army is attempting to redefine the parameters of acceptable speech and to classify dissent as a punishable offense,” the embattled reporter continued. “Subpoenaing journalists in this case unequivocally sends the message that dissent is neither tolerated nor permitted. Utilize your constitutionally guaranteed speech rights and go to prison. What rational soldier would agree to speak with me or any other member of the media if jail was a likely result?”

Less than two days before its commencement, Lt. Col. Head dismissed the subpoenas for reporters and activists to appear at the pre-trial hearing. However, the reporters and activists remain under order to take the stand when the court martial begins.

Olson has no plans to testify and, as such, is facing a potential prison sentence.

Rallying Behind Watada

More than 100 people rallied outside Ft. Lewis where the pre-trial was held . Speakers included retired United States Army Colonel, Ann Wright, one of three U.S. State Department officials to publicly resign in protest of the invasion of Iraq in March of 2003.

Also at the rally were Sara Rich, mother of Suzanne Swift, an army specialist who refused redeployment to Iraq after her allegations of sexual assault by two sergeants went unanswered; Darrell Anderson, Iraq combat veteran and war resister; and Phan Nguyen, a local activist subpoenaed for prosecution of Lt. Watada.

The day also marked the start of “Camp Resistance,” an encampment outside the gates of Ft. Lewis to support Watada by the Iraq Veterans Against the War Deployed. They plan to remain through the upcoming court martial.

In San Francisco, Watada supporters marched from the Peace Plaza in Japantown to the Federal Building to join “Not In Our Name” anti-war activists and participate in a “die-in.”

About 30 people, Nikkei and non-Nikkei alike, some coming from as far as Sacramento, marched from the plaza to the First Unitarian Universalist Church, where they met with fellow supporters who continued with them to the government building.

Approximately 150 people rallied outside the federal courthouse at 450 Golden Gate Ave. in protest of the war and support of Watada. Code Pink Founder Medea Benjamin, American Friends Service Committee Director Steven McNeil, and clergypersons Rev. Dorsey Blake, Rev. Meg Whitaker-Greene, and Rev. Lloyd Wake were among the speakers at the rally. They called on Representative Nancy Pelosi, newly appointed speaker of the house, to de-fund the war.

“Three of our United Methodist bishops came out in support of Lt. Watada and his courageous act,” Wake said. “We support him, we support this die-in this afternoon. We ask our Congress to stop supporting this war. Support our troops, bring them home, treat them with decency for all they have been through and also commemorate the deaths caused by this war.”

Around 1 p.m., 28 protestors participated in the “die in” portion of the rally. Participants took an oath of physical and verbal non-violence, and pledged to maintain an attitude of “openness and respect towards all.” They proceeded to lie down in front of the courthouse’s entrance and drape themselves in white sheets, to visually represent the war dead. Names of slain American soldiers and Iraqi civilians were read. About 20 police arrived and declared the die-in an “unlawful assembly,” then, over a period of three hours, proceeded to arrest the 28 participants.

Campaign for Justice for Japanese Latin Americans leader Grace Shimizu, and Grace Morizawa of the Watada Support Committee were also among those arrested.

“Watada as an act of conscience is facing… six years in prison, what less can I do than a small act of civil disobedience to support what he stands for,” explained Mike Tsukahara, a Watada Support Committee activist who was arrested at the die-in. “Watada (is) standing up and fighting for his rights and opposing what he considers to be unjust. I’d like to think he represents progress in the state of the Japanese American consciousness.”