Washington Report on Middle East Affairs, December 2007, pages 24-25

Special Report

Lt. Ehren Watada Still Faces Possibility of a Second Court Martial

By Laura Cooley

LT. EHREN WATADA, the Army officer based in Fort Lewis, Washington who in June 2006 went public with his refusal on moral grounds to serve in Iraq, continues to await a legal determination regarding his court-martial by a U.S. military court. As a result of his refusal to deploy to Iraq, Watada has been charged with missing movement and conduct unbecoming an officer.

Watada’s first court-martial ended with a mistrial declaration in February 2007, after the military court determined that Watada had misunderstood a pre-trial agreement. The mistrial was declared after the government had presented its case but before Watada’s legal team had given its defense in front of the panel of military officers acting as a jury. The jury had not yet begun deliberations, since only the government had presented evidence.

Since then, Watada’s legal defense team has appealed to the U.S. civilian court system to prevent the Army officer from being tried twice. Watada’s lawyers, Ken Kagan and Jim Lobsenz of the Seattle firm Carney Badley Spellman, have argued that a second court-martial would place Watada in double jeopardy—being tried twice for the same charge. The U.S. District Court of the Western District of Washington in Tacoma assigned the case to Judge Benjamin H. Settle, who found that the claim that a second trial amounts to double jeopardy is “not frivolous” and with “merit” for consideration. He granted an emergency stay against further action until at least Nov. 9, 2007 so that he could thoroughtly review the case.

Citing case law, Judge Settle wrote: “The irreparable harm suffered by being put to a trial a second time in violation of the double jeopardy clause of the Fifth Amendment stems not just from being subjected to double punishment but also from undergoing a second trial proceeding.”

Judge Settle is reviewing the transcripts and documents from the Fort Lewis militray court mistrial of February 2007. He has the option to rule on the case or to ask for more details. The U.S. military court must cease its operations until the judge’s review, which is expected to take some time, is completed.

Watada is charged with missing his unit’s deployment in June 2006, and with “conduct unbecoming an officer” for publicly criticizing President George W. Bush and the Iraq war.

Among the reasons he cited for refusing to participate in the Iraq war were his contention that the basis for the war was illegal, and that it exposed members of the military to war crimes. He asked to resign from the Army rather than apply for conscientious objector status because U.S. Army regulations stipulate that applicants for this status must be opposed to war in any form. In other words, conscientious objector status cannot be granted on the basis of an objection to a specific war.

In the opinion of Amnesty International (AI), Watada’s objection to the war is genuine and, if found guilty, he would be a prisoner of conscience who should be released immediately and unconditionally. AI argues that the right to refuse to perform military service for reasons of conscience, thought or religion is protected under international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which the U.S. has ratified.

Watada faces a possible six-year prison term as well as a dishonorable discharge from the Army. His case has captured the attention and admiration of many who object on ethical grounds to the U.S. occupation and war in Iraq. Among his supporters are Veterans for Peace, Courage to Resist and other grassroots peace organizations and anti-Iraq war groups across the country.

Gerri Haynes, chair of the 2006 Veterans for Peace national convention, at which Watada was one of the speakers, has been subpoenaed by the military court to testify regarding Watada’s participation in this convention. Although as yet she has not had to testify, the Seattle-based nurse consultant and past president of Washington Physicians for Social Responsibility, said that she would be happy to testify on Watada’s behalf. “For me, Ehren is a living hero,” Haynes explained. “He is one of the finest young men I think I will ever meet in my lifetime. He is thoughtful. Purposeful. If I can testify on his behalf in court, I would be happy to do so,” she concluded.

Mike Wong, a Vietnam War veteran and social worker in San Francisco, is an activist member of the Watada Support Committee. Wong says he relates to Watada’s situation, especially since he, too, was in the U.S. Army and later decided to refuse to continue to serve. After serving in Vietnam, Wong declared his conscientious objector status to that conflict, pled guilty to AWOL (absent without leave), and was held until the Army eventually dropped all charges and released him. He was given an “undesirable discharge,” Wong said, and lived in Canada for five years.

Watada, who originally is from Hawaii, joined the Army in 2003 and so far has served for four years, including a year in Korea. He continues to perform operational duties at Ft. Lewis pending the decision on his court-martial.

Corrie vs. Caterpillar Case Deemed a “Political Question”

In the latest development in the case of Corrie et al. v. Caterpillar, Inc. the plaintiffs are challenging the Sept. 17 decision of the 9th Circuit Court of Appeals in Seattle that it did not have jurisdiction to proceed with the lawsuit on the grounds that it constituted a “political question.”

Twenty-three-year-old Rachel Corrie of Olympia, Washington was crushed and killed by a CAT bulldozer driven by an Israeli soldier attempting to demolish a Palestinian home in Rafah, Gaza. Her family filed the lawsuit to seek accountability for Rachel's death and on behalf of four Palestinian families whose family members were killed or seriously injured as a result of the Israel Defense Force’s (IDF) use of Caterpillar bulldozers.

On Oct. 9, 2007, lawyers for the plaintiffs requested that the 9th Circuit Court of Appeals reconsider its decision “en banc”—meaning “in full court”—a process by which the case would again be reviewed, only this time by a panel of 15 judges rather than the three judges who reviewed the case before. Attorneys for Cindy and Craig Corrie and their fellow plaintiffs the Al Sho’bi, Fayed, Abu Hussein, and Khalafallah families, contend that the “jurisdictional” relevance of the case was never briefed or argued.

In rendering its original decision, the Appeals Court did not pass judgment on the merits of the case. Instead it ruled that, since CAT bulldozers are sold to Israel through the U.S. government’s Foreign Military Financing (FMF) program, the issue must be addressed by the federal legislative and executive branches. According to the Appeals Court, “There is undisputed evidence in the record that the United States government has approved and financed all the contracts between Israel and Caterpillar dating back to at least 1990, and that Caterpillar does not sell products to the government of Israel that are not approved by the U.S. government.”

The plaintiffs’ attorneys are asserting, however; that “without the benefit of discovery, it is not known whether some bulldozers were paid for with non-FMF monies.”

The Corries’ legal team decided to request that the 9th Circuit Court of Appeals reconsider its decision en banc because it contends that the court’s conclusion is inconsistent with Supreme Court precedent and another circuit court’s ruling, and “is based on factual statements” that are “not in the record and Plaintiffs were not given the opportunity to challenge the factual contentions relied upon.”

Unless a case is sent back to the trial court for additional proceedings, or accepted for review by the Supreme Court, however, Appeals Court decisions usually are final.

Laura Cooley is a free-lance writer and communications consultant based in Seattle, WA.

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