Journalists and anti-war activists subpoenaed for Army prosecution

Jeff Paterson, Courage to Resist. January 7, 2007

FORT LEWIS, WA – U.S. Army 1st Lt. Ehren Watada became the first commissioned officer to refuse his orders to deploy to Iraq last June 22. In his upcoming February court-martial Lt. Watada faces one charge of missing troop movement, and four counts of conduct unbecoming an officer. Each of the later four charges relates to Lt. Watada’s public explanations of his refusal to deploy to Iraq. If convicted of all charges Lt. Watada faces six years in prison, four of which would be for speaking to the press.

In order to bolster their four charges of conduct unbecoming against Lt. Watada, the military prosecution has taken the unheard of step of issuing subpoenas to reporters and anti-war activists. Reporters Sarah Olson and Gregg Kakesako, and Seattle-area anti-war activists Phan Nguyen and Gerri Haynes, were originally served subpoenas to appear at Lt. Watada’s pre-trial hearing at Fort Lewis, Washington on January 4. In the wake of growing attention and controversy, the military judge postponed the testimony of these witnesses until the full courts martial scheduled for February 5.

More than a hundred people rallied Thursday morning at the gates of Fort Lewis in support of Lt. Watada. About a mile away, Lt. Watada sat before military judge Lieutenant Colonel John Head for a pre-trial hearing that will go a long way to defining what will, and will not, be allowed by the defense during the full court martial next month.

Journalists subpoenaed for Army prosecution

During the proceedings, lead prosecutor Captain Daniel Kuecker repeatedly defended his subpoenas of civilian reporters Sarah Olson and Gregg Kakesako, and Seattle-area anti-war activists Phan Nguyen and Gerri Haynes, as “relevant” and “admissible” for the prosecution.

Lt. Col. Head dismissed the subpoenas for reporters and activists to appear at yesterday’s pre-trial hearing less than two days prior. Although Lt. Col. Head expressed some skepticism regarding this possible subpoenaed testimony, these reporters and activists remain under order to take the stand on February 5. They are being ordered to help send Lt. Watada to prison for his public explanations as to why he did not deploy to Iraq – or face six months in prison and a $500 fine for contempt of a military court.


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

In a lengthy feature in the San Francisco Chronicle , independent journalist Sarah Olson declared, “Journalists should not be asked to participate in the prosecution of political speech. Dragging a journalist into court like this really damages the barrier between press and government. When speech is the crime, the journalist really can be the investigative arm, the eyes and ears of the government.” Olson has also recently published an Op-Ed entitled, “Why I object to testifying against Lt. Watada,” in Editor & Publisher.

While conservative blogs have attacked Olson for making something out of nothing, Military Reporters and Editors Association President James Crawley stated, “Trying to force a reporter to testify at a court-martial sends the wrong signal to the media and the military. . . . One of the hallmarks of American journalism, as documented in the Bill of Rights and defended by our armed services, is a clear separation of the press and the government. Using journalists to help the military prosecute its case seems like a serious breach of that wall.” PEN-USA has also issued a letter of protest to the Secretary of Defense William Gates on her behalf.

Colleagues and supporters of Olson have formed the Free Press Working Group to assist in her defense. As an independent journalist, Olson does not have access to corporate legal teams, so a fund has been established to cover travel, legal, and communications expenses. For more information, please visit:

Anti-war activists also subpoenaed by Army

At a Tacoma, Washington press conference on January 3, Olympia-based anti-war activist Phan Nguyen described his objections to having been subpoenaed last week by the Army to testify against Lt. Watada. Nguyen, a member of the Olympia Movement for Justice and Peace, was the moderator of a number of press conferences in June 2006 regarding Lt. Watada and his objections to serving in an illegal and immoral war in Iraq.

When contacted directly by Army prosecutor Captain Daniel Kuecker last week, Nguyen refused to answer any questions without first speaking with a lawyer. However, Nguyen described the Kuecker’s line of questions as focusing on the behind the scenes workings of the anti-war movement in the Pacific Northwest. “Kuecker basically demanded that I name the names of any key organizers that had anything to do with the public support campaign created to support Lt. Watada,” explained Nguyen. “They are clearly on a political fishing expedition. Unless we fight back, this could have a chilling effect on anti-war organizing at a time when we have to step up to end the war.”

Seattle chapter Veterans for Peace (VFP) organizer Gerri Haynes has also been subpoenaed by the Army. Apparently, Haynes landed on the Army’s radar because she played a public role in organizing the Veterans for Peace National Convention in Seattle last August. Like Jamail, the Army is looking for information regarding Lt. Watada’s speech to the convention. Like Nguyen, Haynes confirmed that Kuecker “wanted the names of convention attendees and organizers.” Another VFP organizer Tom Burkhart has been placed on the Army’s witness list.

Where does the First Amendment end for military servicepersons?

The morning session of Lt. Watada’s pre-trial hearing turned on the vague question of what exactly are the limits of free speech for members of the military. Military case law regarding outspoken anti-war Vietnam-era GI’s was addressed, along with that of white racists in the military.

Lt. Watada’s civilian defense attorney Eric Seitz of Honolulu, Hawaii opened by declaring that, “First, there is nothing wrong with the statements Lt. Watada made. There is simply no offense. Second, attempting to prosecute these types of statements raise significant constitutional problems. Finally, this is a selective prosecution of speech in retaliation for Lt. Watada not deploying to Iraq.”

Judge Lt. Col. Head challenged all parties to answer what test he should apply to political speech. This led Capt. Kuecker, the military prosecutor, to grudgingly acknowledge that the First Amendment does indeed apply to members of the military. Seitz added that even “forceful” political speech is allowed, as long as it’s not “contemptuous.”

Kuecker acknowledged that the government is actually charging Lt. Watada with “contempt of government officials” under the nebulas “conduct unbecoming of an officer and gentleman” article of the Uniform Code of Military Justice.

“Lt. Watada’s speech was offensive to the military,” and as such was illegal, claimed Kuecker. Head rhetorically asked if all statements “offensive to the military” are punishable by court martial?

For authentication, the Army noted that a crime lab has analyzed the video recording of Lt. Watada presenting a speech to hundreds of military veterans at the Veterans for Peace National Convention held last August in Seattle.

Is the legality of the Iraq War an irrelevant political question?

At the core of Lt. Watada’s public refusal to deploy to Iraq is his understanding that the Iraq occupation war is not only morally wrong, but illegal based on both international and U.S. law. To that end, defense attorney Eric Seitz promised to “present overwhelming evidence that the war is illegal, beyond any doubt.” Kuecker later retorted, “We don’t believe EVERY legal scholar will find the war illegal.”

The prosecution, and likely the judge as well, would like to see the legality of the war as purely a political question. If so, “This court is not authorized to hear that. It’s a non-judicial question,” asserted Kuecker.

“But hasn’t the prosecution made these questions 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.”

Seitz asserted that “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.”

“Conduct charges might help Watada’s defense” read yesterday’s headline of The Olympian newspaper in summing up the prosecutions significant contradictions and problems.

During a break in the pre-trial hearing, Lt. Watada briefly greeted reporters out side the military courtroom. Later that evening at a nearby press conference for Lt. Watada’s family and attorneys, Lt. Watada again chose to not make any public statements.

Seitz explained that Lt. Watada was literally facing additional years of imprisonment for simply speaking. During the hearing, Seitz pointed out that when Lt. Watada takes the stand in his own defense and explains his objections to the war, these statements alone could well be the basis for additional charges of conduct unbecoming an officer and gentleman.

At the end of the day, Lt. Watada’s father Robert offered “My son is resolute, and I’m so proud of him. While I was on Fort Lewis another Lieutenant came up to me and said, “It’s such a load of crap what they are trying to do to your son.””

Support Lt. Watada – Refuse illegal war

Supporters are 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.”

A Citizens’ Hearings is being convened January 20-21 at Evergreen State College, Tacoma campus in order 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:

Finally, help spread the word about the regional mobilization at Fort Lewis on day Lt. Watada’s court martial is scheduled to begin on February 5, or organize your own local protest in solidarity on that day.