All political speech charges go to trial


Lt. Ehren Watada during pre-trial hearing 1/4/07. Photo: Jeff Paterson

Courage to Resist. January 16, 2007

Nearly two weeks after hearing arguments in the January 4 pre-trial phase of Lt. Ehren Watada’s court martial for refusing to deploy to Iraq, and explaining his refusal to the press, military circuit judge Lt. Col. John M. Head today issued brief, tersely worded rulings January 16, 2007. In summation, “The defense motion for a hearing on the “Nuremburg defense” is DENIED. The government motion to prevent the defense from presenting evidence on the legality of the war is GRANTED.” The defense motion to dismiss the four political speech charges was also “DENIED.”

View Judge Head’s rulings:
U.S. v. Watada Ruling: Article 133
U.S. v. Watada Ruling: Lawfulness of Order

In response to today’s rulings, Lt. Watada’s civilian attorney Eric Seitz of Honolulu declared, “These rulings exemplify the fact that this is a military disciplinary proceeding, and apparently not an actual trial in which concepts of justice apply. Now let someone ask me if I think Ehren can get a fair trial in a military court.” In summation, “These rulings are about as horrible and inept as I could have imagined,” added Seitz.

Lt. Watada is scheduled to go on trial at Fort Lewis, Washington on February 5. He will face two years imprisonment for “missing movement,” and four additional years imprisonment – one for each count of “conduct unbecoming an officer” – for his public statements critical of the Iraq War.


In a finding of fact, Judge Head noted:

“A hearing on the “Nuremberg defense” would consist of witnesses who would testify that the war in Iraq was a crime against peace, a war of aggression, and a violation of the United Nations Charter, other international law, and U.S. law. The accused would testify that his refusal to go to Iraq was based upon the belief that he would be committing war crimes because the United States was involved in a war of aggression and a crime against peace.”

However, in conclusion:

“The accused’s motive not to deploy and his belief about the lawfulness of the Iraq war are not elements of the offense. Motive is, therefore, irrelevant on the merits…. Even had the defense been granted the full hearing they requested, the decision would be no different. The evidence proffered all went to a nonjusticiable political question or to a [irrelevant] motive.”

During the pre-trial hearing, Seitz asserted, “The legality of the Iraq War is not merely a political question. Lt. Watada’s specific intent was to avoid unlawful actions in Iraq. For the sake of due process, we need the opportunity to raise this issue.” Ruling on due process: DENIED.


Citing the military court’s 1967 conviction of Lt. Henry Howe for attending an anti-war protest with a picket sign that read, “Let’s have more than a choice between petty ignorant fascists in 1969,” Judge Head dismissed out of hand any inherent protections of political speech for members of the military.

In a friend of the court brief filed in Lt. Watada’s August Article 32 hearing, the American Civil Liberties Union wrote: “If the [political speech] charges leveled in this case are allowed to proceed, it would mean that service members are completely barred from voicing their honest opinions on political subjects of significant public concern. Silencing speech like Lieutenant Watada’s violates the Constitution while it also harms the military and the public at large.” Ruling on U.S. Constitution: DENIED.

During the pre-trial hearing, Judge Head even had to ask the lead prosecutor Capt. Kuecker, “Hasn’t the prosecution made these questions [of war legality] relevant by the way you have charged this case? Aren’t you trying to block these issues for coming in the front door, but opening up the back door?” asked Judge Head. “You have charged motive as an offense.”

Kuecker feebly replied that there are two separate prosecutions going on. The first is for Lt. Watada missing movement to Iraq—a prosecution where his MOTIVE is so irrelevant that it needs to be barred from the military jury. The second prosecution will be for Lt. Watada publicly explaining his MOTIVE! Apparently this Orwellian formulation passes for military justice.


Having anticipated the possibility of justice being denied in Lt. Watada’s upcoming court martial, a Citizens’ Hearing has been convened for January 20-21 at Evergreen State College, Tacoma campus. The purpose of this hearing is to fully evaluate Lt. Watada’s claims regarding the legality and morality of the Iraq War. Confirmed witness include: Daniel Ellsberg, military analyst who released the Pentagon Papers in the Vietnam War; Denis Halliday, former UN Assistant Secretary General; Richard Falk, Professor Emeritus of International Law at Princeton University. For more information:

Supporters of Lt. Watada are still asked to write Lt. General James Dubik, Commanding General Fort Lewis, 1 Corps Building 2025 Stop 1, Fort Lewis WA 98433. Please request that General Dubik “Dismiss all charges and honor Lt. Watada’s long-standing resignation from the U.S. Army.”

The regional mobilization at Fort Lewis on February 5, the day Lt. Watada’s court martial is scheduled to begin, is underway. Information about actually attending the proceeding on Fort Lewis, transit, housing, art/work parties, and many other Seattle-Olympia area details of the mobilization are coming soon. Supporters across the country will also be holding local protests and vigils in their communities. Check and for unfolding details.