Lieutenant Watada Should Be Prosecuted, Article 32 Hearing Finds
By Sarah Olson t r u t h o u t Report
Friday 25 August 2006
The Army has cleared another hurdle in its attempt to court-martial First Lieutenant Ehren Watada, the first commissioned officer to publicly refuse to deploy to Iraq. In a report released Thursday afternoon, investigating officer Lieutenant Colonel Mark Keith determined that the Army has grounds to proceed with a full court-martial of Lieutenant Watada. "I find that 1st Lieutenant Watada's beliefs regarding the war in Iraq do not excuse his refusal to deploy or his public statements," wrote Lieutenant Colonel Keith.
The Army held an Article 32 hearing Thursday, August 17th, attempting to prove that the prosecution of Lieutenant Watada had sufficient evidence to proceed with a full court-martial on charges of 7 violations of the Uniform Code of Military Justice (UCMJ). For his part, Lieutenant Watada took the opportunity to "put the war on trial."
"The defense contends every officer is duty bound to evaluate each order given for legal sufficiency. I agree," Lieutenant Colonel Keith wrote in his official report about the Article 32 hearing. "However, due to the complexity of U.S. and International law, I believe it would be very difficult for Army officers to determine the legality of combat operations (nor should they attempt to do so) ordered by the President of the United States of America/Commander in Chief."
Eric Seitz, civilian defense attorney for Lieutenant Watada responded: "We are not surprised by the hearing officer's report and recommendations because it was our assumption all along that once the Army rejected all of our overtures and proposals and convened an Article 32 hearing that was tantamount to a decision to put Lieutenant Watada on trial."
Lieutenant Colonel Keith found "reasonable grounds" to believe that Lieutenant Watada violated Article 87 of the UCMJ, missing troop movement. Further, he says, "As an officer and leader his refusal to obey a lawful order cannot be excused and serves to embolden others to commit the same or similar misconduct."
Lieutenant Colonel Keith found similar reasonable grounds to believe that Lieutenant Watada had violated Article 88 (contempt toward officials) of the UCMJ, for statements he had made to the press. "1st Lieutenant Watada's contempt for the president serves to break down the good order and discipline of all military personal ..."
The hearing officer Lieutenant Colonel Keith also found that Lieutenant Watada had violated Article 133 (conduct unbecoming an officer and gentleman) of the UCMJ. "I find his message (contempt for civilian leadership and description of Army actions on the ground as "wholesale slaughter") and his actions (missing movement) support a charge of Conduct Unbecoming an Officer."
While Lieutenant Watada has not been charged with additional violations, Lieutenant Colonel Keith wrote: "I believe Lieutenant Watada's contempt for the President and suggestion that U.S. soldiers can stop the war simply by refusing to fight borders on a violation of Article 94 (mutiny and sedition)."
During the Article 32 hearing, defense attorney Eric Seitz presented three witnesses: University of Illinois law professor and international law expert Francis Boyle, former UN Assistant Secretary General, and twenty nine-year Army veteran, retired colonel Ann Wright. "We appreciated the opportunity to lay the groundwork to prove that the war in Iraq is illegal and that Lieutenant Watada, coming to this conclusion after much research, was duty bound to refuse to participate," said Seitz. "This case is really about the duty of individual soldiers to look at the facts and fulfill their obligation to national and international law."
During the Article 32 hearing, law professor Francis Boyle contended the United States had not met the requirements to go to war. "In order for the United States to enter into a war, there are two basic requirements. First, warfare would have to be authorized by the US Congress pursuant to the War Powers Clause of the Constitution, and secondly, unless the US itself is attacked militarily, or its troops, it would have to be authorized by the UN Security Council. Otherwise, aggressive warfare would be a Nuremberg Crime against peace, and that is stated in the Laws of Land Warfare." Professor Boyle also said the use of cluster bombs in civilian areas, depleted uranium, and the initial shock and awe tactics all violated various international laws.
Denis Halliday is the former Assistant Secretary General of the United Nations. During Lieutenant Watada's Article 32 hearing, Halliday was called to testify regarding the impact of war on the Iraqi people. "The people of Iraq had become used to living under very difficult conditions after the destruction in the name of the United Nations by the United States of the civilian infrastructure, water supplies, sewer systems, electric power, use of depleted uranium and cluster bombs."
Halliday was prevented from providing complete testimony when the investigating officer presiding over the Article 32 hearing ruled that the "consequences of the war or the situation on the ground" were irrelevant to Lieutenant Watada's argument that the war was illegal and that he had an obligation to refuse to fight it.
Twenty nine-year retired colonel Ann Wright also provided testimony in Lieutenant Watada's hearing last week. She said that while it's not too often that a soldier will refuse to obey an order on the grounds that it is illegal, that is not only part of a military tradition and training, it is also a military necessity. "We call on people in the military to use their brains to distinguish situations," Wright says. "You don't want personnel who will carry out illegal orders and say that they were told to do it. You want military personnel who will think about what they are doing."
Further, Wright testified it was her assessment that Lieutenant Watada was fulfilling his obligation: "The obligation of someone such as the accused who, by participating in the current conflict in Iraq, would be participating in war crimes would be to stand up and say that he cannot participate in it and that it would be an illegal order."
In calling for the full court-martial of Lieutenant Watada on all seven violations of the UCMJ, the Army rejected this testimony, but found that the Lieutenant was "sincere in his beliefs."
Defense attorney Eric Seitz responded, "I am pleased that the hearing officer finds Lieutenant Watada to be sincere, and recognizes the seriousness of the issues that Lieutenant Watada raises in this case," he said in a written statement. "I am dismayed, but not surprised, that the hearing officer dismisses the undisputed testimony of our experts as to the illegality of the war and ignores the well reasoned legal briefs that we submitted both on the war and the speech issues."
The Army is expected to announce whether or not it will proceed with a general court-martial of Lieutenant Watada within several weeks, and a court-martial could happen as early as November.
For the latest information on Lieutenant Watada, see http://www.thankyoult.org/. Sarah Olson is an independent journalist and radio producer. She can be reached at email@example.com.