1.

The Lede: Notes on the news

TRIAL TO START NEXT WEEK FOR SOLDIER WHO REFUSED TO FIGHT IN “ILLEGAL” IRAQ WAR
By Tom Zeller Jr.

New York Times
February 2, 2007 -- 4:11 p.m.

Original source: New York Times

Court-martial proceedings are scheduled to begin on Monday in the case of First Lt. Ehren K. Watada, an Army officer who refused to ship out with his brigade when it set off for Iraq last June -- citing his opposition “to the continued war in Iraq, the deception used to wage this war, and the lawlessness that has pervaded every aspect of our civilian leadership.”

But Lieutenant Watada is no ordinary deserter, and he did not claim to be a conscientious objector. Instead, he took his stand, he has said, against the second front the United States and its allies opened in the “war on terror” by invading Iraq.

He has offered to serve in Afghanistan, “which he regarded as an unambiguous war linked to the Sept. 11 attacks,” according to the *Times*’ coverage of Lieutenant Watada’s refusal last summer.

The request was denied, and Lieutenant Watada faces charges under the Uniform Code of Military Justice, including one count of missing movements (for not deploying) and two counts of conduct unbecoming an officer.

(A video statement, in which Mr. Watada laid out his own justifications for his decision last June, is posted online.)

The trial begins on Monday at Ft. Lewis, Washington. Lieutenant Watada told Reuters this week: “It’s not that I am scared. It’s that I strongly believe this war is illegal and immoral and participation in it would be contrary to my oath to this country.”

Two weeks ago, the Army officer presiding over the case, Lt. Col. John M. Head of Fort Lewis, denied two defense motions. The ruling rejected a defense request that it be allowed to present testimony that the conflict in Iraq is unlawful, rendering the deployment order unlawful.

The defense sought to invoke a version of the “Nuremberg defense,” according to the court’s ruling, which would allow it to present “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.”

The court would have none of that. From the Jan. 16 ruling: “The defense motion for a hearing on the “Nuremberg defense” is DENIED. The government motion to prevent the defense from presenting evidence on the legality of the war is GRANTED. The government motion to prevent the defense from introducing evidence of the accused’s motive not to deploy is GRANTED. Further, I find by a preponderance of the evidence, the order to deploy, if given, was LAWFUL.”

The other defense motion sought the dismissal of the conduct-unbecoming charges, which stem from public comments Lieutenant Watada made encouraging soldiers “to throw down their weapons” to resist an authoritarian government at home, according to Reuters.

The defense argued that the charges should be thrown out becasue the lietuenant’s comments were protected under the First Amendment guarantee of freedom of speech, but Colonel Head rejected that motion, too: “An officer challenging the lawfulness of a war or combat action could tend to interfere with or prevent the orderly accomplishment of the mission or present a clear danger to loyalty, discipline, mission, or morale of the troops. . . . [T]he accused identifies himself as an officer and urges soldiers not to participate in the war. This could have a clear and present danger to the loyalty, discipline, mission, or morale of the troops. These are questions of fact for the members.”

Beyond having become a cause célèbre for opponents of the war, Lieutenant Watada’s case -- particularly on the latter charges of conduct unbecoming -- has attracted great interest among civil libertarians.

Kathleen Duignan, executive director of the National Institute of Military Justice, a non-profit organization, was quoted by Reuters today: “This case will test the limits of what is free speech and what is speech that can be curtailed in the military. Of course, when you join the military you give up some of your constitutional rights, such as the right to complete unfettered free speech.”

Lieutenant Watada, who faces up to four years in prison if convicted on all counts, told Reuters this week, “When you have leaders that are unaccountable, who have already deceived people over something as serious as war and are willing to do it again, you have to ask yourself, ‘where do you stand?’ “

2.

U.S.

COURT-MARTIAL LOOMS FOR WAR OBJECTOR
By Melanthia Mitchell

** Outspoken Army Officer Facing Court-Martial This Week for Refusing to Go to Iraq **

Associated Press
February 4, 2007

http://abcnews.go.com/US/wireStory?id=2848483

SEATTLE -- Denied a chance to debate the legality of the Iraq war in court, an Army officer who refused to go to Iraq now goes to trial hoping to at least minimize the amount of time he could serve if convicted.

Anti-war activists consider 1st Lt. Ehren Watada a hero, but the Army accuses him of betraying his fellow soldiers.

The 28-year-old faces four years in prison if convicted on one count of missing movement and two counts of conduct unbecoming an officer for refusing to ship out with his unit, the 3rd Brigade, 2nd Infantry Division.

Watada has spoken out against U.S. military involvement in Iraq, calling it morally wrong and a 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 video statement released at a June 7 news conference.

Despite having already been charged, he spoke out again in August, at a Veterans for Peace rally in Seattle.

"Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and the rules of engagement of desperate field commanders will ultimately force them to be party to war crime," Watada said then.

Watada and his Honolulu attorney, Eric Seitz, contend his comments are protected speech, but Army prosecutors argued his behavior was dangerous to the mission and morale of other soldiers.

"He betrayed his fellow soldiers who are now serving in Iraq," Capt. Dan Kuecker said at one hearing. Kuecker has not commented on the case outside of court.

Seitz unsuccessfully sought an opportunity to argue the legality of the war, saying it violated Army regulations that specify wars are to be waged in accordance with the United Nations Charter. His final attempt was quashed last month when the military judge, Lt. Col. John Head, ruled Watada cannot base his defense on the war's legality. Head also rejected claims that Watada's statements were protected by the First Amendment.

The Army had subpoenaed two journalists who interviewed Watada, drawing criticism from free-press advocates, but that fell by the wayside as prosecutors dropped two of the four counts of misconduct in exchange for Watada admitting he made statements to freelance journalist Sarah Olson and Greg Kakesako of the Honolulu Star-Bulletin.

"This should be seen as a victory for the rights of journalists in the U.S. to gather and disseminate news free from government intervention, and for the rights of individuals to express personal, political opinions to journalists without fear of retribution or censure," Olson said in an e-mail message.

Military law experts said that, by confining themselves to the missing movement charge, prosecutors might have saved themselves from arguing some of the legal issues relating to free speech.

"It's desirable that they're abandoning the path of using reporters as witnesses," said Eugene Fidell, president of the National Institute of Military Justice in Washington, D.C. "It's a very toxic strategy."

Fidell wasn't surprised, however, that the government rejected a deal offered by Seitz that would have had Watada serve only three months confinement with a dishonorable discharge.

"Why should they? He missed a movement of his unit," he said. "No army can tolerate officers refusing to move with their unit."

On the Net:

Watada supporters: http://www.thankyoult.com/

3.

Local news

FORT LEWIS OFFICER’S WORDS, DEEDS FOCUS OF COURT-MARTIAL
By Hal Bernton

Seattle Times
February 4, 2007

http://seattletimes.nwsource.com/html/localnews/2003555726_watada04m.html

Last June, 1st. Lt. Ehren Watada split with the Fort Lewis officer corps by refusing an order to deploy to Iraq.

At a court-martial that begins Monday, his fate will be placed in the hands of at least five of those officers, leaders at an Army base that has sent thousands to fight in the war.

The officers will form a "panel of peers," the military equivalent of a jury, and determine whether Watada spends up to four years in prison in one of the most high-profile cases to be tried at Fort Lewis.

It unfolds at a time when the Bush administration is under attack in Congress for its conduct of the Iraq war. Peace activists have rallied around Watada, planning demonstrations outside Fort Lewis and smaller vigils elsewhere to mark the start of the court-martial.

This will be a general court-martial, reserved by the Army for the most serious offenses. It emerged as the Army's option after Watada coupled his refusal to deploy with appearances and interviews during which he denounced the administration for conducting an "illegal war" founded on "lies," and he blasted the Army for committing war crimes in Iraq.

Watada had hoped to try to prove his case against the war in court, but in a pretrial ruling, a judge said the legality of the war could not be determined in his court -- it could be determined only by Congress. In his decision, Lt. Col. John Head cited previous federal court rulings.

This week in the courtroom, Head is expected to keep a tight lid on defense efforts to attack the war. There will be no serious dispute about what Watada did or said; the central questions will be whether his conduct represents crimes.

The Army's decision to charge Watada for his public comments on the war brings an additional element to the trial. Defense attorneys are prepared to argue that Watada's words were protected free speech under the U.S. Constitution.

PROSECUTION ARGUMENTS

Prosecutors will argue that the military has limits on that speech, and that Watada violated those limits. Penalties for those charges comprise up to two of the four years in prison he is facing.

If he is found guilty of any crimes, the panel must determine how long he should serve in prison.

In the months leading up to the trial, Watada has maintained a kind of dual existence.

During duty hours, he has worked a desk job at Fort Lewis while the brigade he served with faces combat -- and takes casualties -- in Baghdad. At the base, he is an unpopular figure, reviled by some.

During off-duty hours, Watada gets a hero's welcome from peace activists. Time and time again, he has spoken against the war at rallies and conferences.

In an interview last week, Watada said he had hoped to avoid a military tribunal. His military superiors offered him a role in Iraq where he would not have to bear arms, but he said no because it would still be in support of the war effort. He had hoped to serve alternate duty in Afghanistan, but his request was turned down.

Last spring, as a collision with the military-justice system appeared more likely, Watada said he never tried to calculate the odds of acquittal before deciding not to deploy. His decision reflected his conviction that the war is illegal and that he is duty-bound by his officer's oath -- and his conscience -- to refuse an order to deploy.

"I felt that what I was being asked to do -- participate in this war -- was in total contradiction from what I was swearing to do in that oath," he said.

In pretrial hearings, military prosecutors said that same oath compels Watada to deploy. Charging documents allege that his comments about the war have been disgraceful and dishonor the armed forces.

NOT THE FIRST TO REFUSE

Though Watada appears to be the first officer to publicly refuse to deploy, he is not the first to refuse to assist in the war effort.

Harvey Tharp was an active-duty Navy lieutenant who served in Kirkuk, Iraq, and finished his tour of duty dismayed about a rash of civilian deaths. At a conference sponsored last month by peace activists, Tharp said he subsequently turned down an assignment to a National Security Agency job that would have supported a U.S. military offensive in Fallujah. He told his superiors that such service could make him a party to war crimes. After citing those concerns, he was allowed to resign and was honorably discharged in 2005.

Among enlisted soldiers, a small number have emerged as public voices of protest against the war; the peace group Courage to Resist lists eight who have faced a range of disciplinary actions.

Darrell Anderson, an Army enlistee who did one tour of duty and then deserted, was able to turn himself in and walk away with an other-than-honorable discharge and no prison time.

Augustine Aguayo, an Army medic who served one tour of duty, risks more than seven years in prison at a March court-martial in Germany, where he will face charges of desertion and troop movement.

--Hal Bernton: 206-464-2581

4.

SOLDIER CALLS WAR A FRAUD
By Gene Park

** 1st Lt. Ehren Watada reiterates his defense in a panel discussion **

Honolulu Star-Bulletin
February 4, 2007

http://starbulletin.com/2007/02/04/news/story04.html

[PHOTO CAPTION: Liz Rees attended the panel discussion yesterday at the Japanese Cultural Center of Hawaii titled "1st Lt. Ehren Watada: Dissenter or Deserter?"]

[PHOTO CAPTION: Participating on the panel discussing 1st Lt. Ehren Watada's refusal to deploy were Jonathan Okamura, a professor of anthropology at the University of Hawaii-Manoa; moderator Riki May Amano, president and executive director of the Japanese Cultural Center of Hawaii; retired U.S. Marine Corps Major Ernie Kimoto; and Karen Nakasone, former president of the Japanese American Citizens League.]

Army 1st. Lt. Ehren Watada maintains that the crux of his court-martial proceedings is the legality of the war in Iraq, despite what a military judge has said.

The Hawaii-born soldier who has refused to deploy with his unit to Iraq issued a statement read at a panel discussion of his case at the Japanese Cultural Center of Hawaii yesterday.

Watada faces up to four years in prison when his court-martial begins tomorrow at Fort Lewis, Wash.

A military judge barred Watada from arguing the legality of the war as part of his defense, but Watada continues to insist the justification of the war was based on "fraud."

"As Americans, we would expect our service members to refuse to participate in a war that is clearly illegal and immoral," Watada said in the statement.

"For a soldier, it is a betrayal of his oath."

"He didn't expect to win," said Karen Nakasone, a panelist and past president of the Japanese American Citizen's League of Honolulu. "Sometimes you take a position to make a point, and you go public with it because your position is still right under a higher law."

Yesterday's panel also included University of Hawaii ethnic studies professor Jonathan Okamura and Ernie Kimoto, senior staff attorney for the Office of Hawaiian Affairs, a retired Marine Corps major and former Marine judge advocate.

Participating on the panel discussing 1st Lt. Ehren Watada's refusal to deploy were Jonathan Okamura, a professor of anthropology at the University of Hawaii-Manoa; moderator Riki May Amano, president and executive director of the Japanese Cultural Center of Hawaii; retired U.S. Marine Corps Major Ernie Kimoto; and Karen Nakasone, former president of the Japanese American Citizens League.

Kimoto said he could not support Watada's action, despite his personal opinion that the Iraqi conflict is an "atrocity" and "abuse of humanity."

"He is still in uniform, and he joined the united service after the Iraq war commenced," Kimoto said.

Watada could be sent to prison if convicted of one count of missing movement and two counts of conduct unbecoming an officer.

"Life after this would be very difficult," Kimoto said. "Let's not make it political, totally. Let's make sure we are there to support Ehren after he gets out. He may be coming out to us for a job. Let's try to support him before and after."

Nakasone said Watada's protest is a cultural breakthrough for Japanese Americans.

"My parents always told me, 'Don't be the nail that sticks out, because you'll be hammered down,'" Nakasone said. "In my generation we haven't had this kind of person, and I think it's been a wakeup call for many of us in our generation, whether you agree or disagree with him."

Diane Brandon, a 59-year-old Makaha resident, said she attended yesterday's discussion out of a sense of personal obligation to her own values.

"I just felt a closer attachment to him, hearing his words directly through a statement rather than through the TV or the papers," Brandon said. "I feel much less removed from the process."

This email address is being protected from spambots. You need JavaScript enabled to view it.

5.

CHESTNUT RIDGE MAN SEES HISTORY REPEAT ITSELF
By Khurram Saeed

Journal News (Westchester, Rockland, and Putnam Counties, New York)
February 4, 2007

http://www.nyjournalnews.com/apps/pbcs.dll/article?AID=/20070204/NEWS03/702040345/1218

CHESTNUT RIDGE -- Forty-one years ago, David Mitchell was sentenced to five years in prison for refusing to fight in Vietnam because he believed the war to be illegal.

Tomorrow, the Chestnut Ridge man will attend the first day of a court-martial proceeding against 1st Lt. Ehren Watada in Fort Lewis, Wash. Watada is the first Army officer to publicly refuse to report to Iraq because he considers the invasion "illegal and immoral" and believes that participating in it would violate international law.

Like Watada, Mitchell did not refuse to take up arms because of religious convictions or a deep-seated belief that all war is wrong.

"I wasn't a conscientious objector. I wasn't a pacifist," Mitchell said. "I would fight in another context."

Watada, who faces up to four years in prison, has said he was prepared to deploy to Afghanistan.

What both men share is not only a willingness to go to prison for their beliefs, but also a desire to put their respective wars on trial.

"The stand is the same," said Mitchell, 64, who has little doubt that Watada, 28, will be convicted.

Mitchell, a member of the Rockland Coalition for Peace and Justice, met Ehren Watada's father and stepmother last year when they spoke at the Fellowship of Reconciliation in Upper Nyack. The couple asked Mitchell to attend their son's court-martial.

Michael Diederich, who served as a law officer with the Army during the Iraq invasion, said an individual soldier didn't have a say in determining a war's lawfulness, "other than contributing to electing a president or Congress."

"Your obligation upon joining a military organization is to obey all lawful orders and that includes being deployed, and so you don't have the choice of what battles you're sent to," said Diederich, a Stony Point lawyer. "For the most part, it's going to be a military crime to not obey a lawful order."

Diederich, 52, who was primarily based in central Iraq during his tour from November 2004 to October 2005, said he had to grapple with his own questions about the war.

"As a Democrat, I agree with a lot of what Democrats are saying regarding the war but nevertheless when I was called to serve, I went," Diederich said last week.

RESISTING THE DRAFT

In 1964, Mitchell was living in Brooklyn and working as a bookstore clerk when he received a draft letter.

Three years earlier, the Connecticut native had dropped out of Brown University and was active in the civil rights movement. He sent the draft board a letter saying he would challenge the order and make an issue of the war's legality.

"At that point, they backed off," Mitchell said last week.

A year later, as the war escalated, Mitchell was drafted again.

When he refused this time, he was arrested for draft evasion and tried in New Haven, Conn. In September 1965, he was convicted in U.S. District Court and sentenced to five years in prison and a $5,000 fine.

Mitchell said he opposed the conflict because he considered it an "unjustified, aggressive war." He believed the United States was intervening in a civil war, preventing elections that would have reunified the country (and most likely put control in the hands of the Communist north) and its soldiers were engaging in "crimes against humanity," such as torture and murder.

SIMILAR ACCUSATIONS

Similarly, Watada has accused the Bush administration of lying about weapons of mass destruction and Saddam Hussein's ties to al-Qaeda as justifications for war.

Mitchell's argument was based on the principles of the Nuremberg Trials, which were held to prosecute Germans who committed war crimes during World War II. The trials not only condemned aggressive wars, they established that there was no protection for those who followed illegal orders.

He pointed out that the Army incorporated both the notion of individual responsibility and individual guilt into its code of conduct.

At the risk of imprisonment, Mitchell wanted the courts to decide whether the war was legal. If nothing else, it fostered public debate and raised difficult questions.

"At some point, a line has to be drawn," Mitchell said. "It's up to individuals in the end to say no if that line is being crossed."

In January 1966, a federal appeals court reversed Mitchell's conviction, ruling that the judge in his case had abused his discretion by not allowing Mitchell enough time to hire his own lawyer. Mitchell ended up defending himself in the trial because he didn't approve of his court-appointed lawyer.

Oddly enough, Rockland resident Conrad Lynn represented Mitchell in his pretrial hearings.

Mitchell recalled traveling to Rockland -- he needed special permission from the court because he was out on bail -- to visit with Lynn in his Pomona home.

Lynn died in 1995 at age 87.

AGE OF DISSENT

Mitchell was retried in March 1966 and a federal court again convicted him and sentenced him to five years in prison.

A series of appeals followed, but the courts upheld the guilty verdict.

In March 1967, the U.S. Supreme Court refused to hear Mitchell's case, though Justice William O. Douglas dissented.

Mitchell served two years at the U.S. Penitentiary in Lewisburg, in central Pennsylvania.

Paroled after two years, Mitchell went on to earn a law degree from Seton Hall University.

He was admitted to bar in Massachusetts and New York to practice public service law after appearing before a character and fitness committee in each state. He said the bar distinguishes between crimes of moral turpitude and acts of conscience. He worked for 12 years with the Legal Aid Society of New York.

He and his wife moved to Rockland in 1977. They have two daughters, a grandchild and another on the way in May.

Mitchell has since gone into the title search business. His office was across the street from the World Trade Center. On Sept. 11, 2001, Mitchell missed witnessing the attacks because he was running an hour late to work.

"I find it ironic when people say, 'Remember 9/11,'" Mitchell said. "I remember it well."

Looking back, he has no regrets. He followed his conscience.

"To me, it was the most natural thing in the world to do. It's still something I'm proud of," he said. "We all have a responsibility to what goes on in the world, especially if we're directly involved."

--Reach Khurram Saeed at This email address is being protected from spambots. You need JavaScript enabled to view it. or 845-578-2412.