By Sari Gelzer, Truthout. May 14, 2009

In a victory for Lt. Ehren Watada, the Justice Department decided last week that it would drop attempts to retry the officer for his refusal to deploy to Iraq. Watada’s lawyer, James Lobsenz, believes the decision was a case of legal realism. "They were going to have a really difficult time explaining why double jeopardy wasn’t violated," said Lobsenz in reference to Watada’s first court-martial, which ended in mistrial and would have violated his Fifth Amendment right to not be charged for the same crime twice.

Also: The trials of Ehren Watada
By Jeremy Brecher & Brendan Smith, The Nation. May 19, 2009

Watada faces two remaining charges stemming from his public statements on the illegal and immoral nature of the Iraq war. The fate of Watada’s continued legal limbo is currently in the hands of Fort Lewis officials who will decide how to proceed with the charges of conduct unbecoming an officer.

It has been almost three years since Watada became the first commissioned officer to publicly refuse to go to Iraq. His decision was not that of a conscientious objector opposed to war in general, but of an officer who felt that participating in the Iraq war was akin to committing a crime. After being denied a resignation from the US army, Watada refused to deploy to Iraq in June 2006 due to his belief that the war violated international and US constitutional laws.

"It is my conclusion as an officer of the Armed Forces that the war in Iraq is not only morally wrong but a horrible breach of American law … As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order," Watada said in a public statement.

Jeff Paterson of Courage to Resist, an organization that supports military resisters, including Watada, believes that the officer’s stance had a profound impact on military members and American citizens.

"Ehren Watada was instrumental in putting the issue of the legality of the Iraq war front and center for not only military resisters but for activists in general at a time when it wasn’t as widely discussed as it is today," said Paterson.

Watada’s lawyers attempted to raise the issue of the legality of the war in the initial court-martial, since it was Watada’s basis for refusing to deploy. However, the military judge ruled against the defense attorney’s attempts to bring in scholars as witnesses to testify to the illegality of the war.

Watada’s former attorney, Eric Seitz, told Time magazine that he believed the main reason the mistrial occurred was because the military didn’t want to discuss the reason behind Watada’s decision not to deploy: "I think whenever a prosecutor tries to keep out the substance of why a person acted, when it relates directly to the charges that are there, it creates an untenable series of contradictions."

Lobsenz, Watada’s current lawyer, says he is hopeful that "the Army will decide not to attempt to resuscitate the other two charges and go forward with them."

Lobsenz’s hope is based on the belief that the charges aren’t very strong.


Photo: F.L. Morris / The Honolulu Star-Bulletin

"One because there is a strong argument that they are also barred by double jeopardy. And two, there is a strong argument that they are barred by a doctrine about breach of a plea agreement," said Lobsenz.

In addition, Lobsenz argued that Watada’s First Amendment rights also give reason for the remaining charges against Watada to be dropped.

Watada’s public stand against the US military has been the strongest of its kind to this date, commented Paterson.

"Until a whole unit refuses to fight, I don’t think there is any individual case that’s going to resonate like Ehren’s," said Paterson.

Watada’s lawyer said that he is focused on his client’s future. Once these charges are dropped, Lobsenz said, Watada can "get around to figuring out a way in which he can end his military service and get on with life in the civilian sector."