Revolution #79, February 25, 2007


Military Judge Declares Mistrial in Ehren Watada Court-Martial

In an unexpected turn of events, the court-martial of First Lt. Ehren Watada, the first commissioned U.S. military officer to publicly refuse deployment to Iraq, ended in a mistrial on Feb. 7. The judge, Lt. Col. John Head, granted the prosecution's motion for a mistrial, over the objections of Watada's defense team. The declaration of mistrial came after Head had ruled that a pre-trial “stipulation of fact” agreement between the prosecution and Watada’s defense team should be thrown out because, Head claimed, there were different understandings of what it meant.

The “stipulation” basically said that the facts in the case--that Watada had missed troop movement and had made the public statements against the war to explain his actions--were not in question. In exchange for this “stipulation of fact,” the prosecutors had agreed to drop two of the four charges of “conduct unbecoming an officer.” The prosecutors also agreed not to go forward with subpoenaing reporters and activists and forcing them to testify for the prosecution about public statements made by Watada. Going into the court-martial, Watada faced two remaining charges of “conduct unbecoming an officer,” which target political statements he made against the war, and one charge of “missing troop movement.”

Judge Head had tried to prevent the issue of Watada's reasons for refusing to be deployed to Iraq from coming up in the trial. He denied defense requests to bring up expert witnesses to testify about the war. He ruled that Watada could not argue that his actions were based on the Nuremberg defense: that soldiers have a duty to refuse to obey illegal orders and participate in wars of aggression. And Head refused to throw out the two remaining charges of “conduct unbecoming an officer” against Watada, ruling that the free speech rights of soldiers are limited.

The judge’s ruling to throw out the “stipulation of fact” came after the prosecution had rested its case and the defense was about to call Watada to the witness stand. Head repeatedly questioned Watada--over the objections of his lawyers—about whether the stipulation agreement amounted to an admission of guilt. But Watada insisted on the position that he had maintained from the start: that he refused to participate in the war because it was illegal and that he felt it was his duty to not contribute to war crimes. Head asked Watada if he believed he had a duty to make the troop movement. Watada answered, “No, I did not feel I had that duty. I was being ordered to do something that I feel was illegal. The government and you have made rulings to the contrary, but that does not negate my beliefs.”

Both the defense and prosecution objected to Head’s ruling to throw out the “stipulation.” But once made, the ruling meant the basis of evidence and facts in the case, including the prosecution’s completed case, was undermined. Head attempted to give the prosecution a chance to retry the case without the stipulation being in evidence. But the prosecution asked for a mistrial, and the judge agreed.

The fact that Head was trying to rule out any discussion of the war’s legality and Watada’s motivation, at the very same time that the prosecutors were trying Watada for his stated beliefs against the war, meant there were some deep contradictions within the case against Watada. Eli Sanders of Time magazine wrote that “barring arguments about the war’s legality created a disconnect that ultimately caused the military’s case against Watada to unravel.” Watada’s attorney, Eric Seitz, said after the mistrial, “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.”

Lt. Watada's case is one expression of the deepening opposition to the war, including within the U.S. military. As the court-martial opened at Ft. Lewis on February 5, 1,000 people rallied in support of Watada outside the base, including many vets and military families.

The Army has announced March 19 as the new trial date. Watada's attorney. Eric Seitz, said after the mistrial: “First I want you to understand that a mistrial in a case of this significance is a very rare occurrence. And when it happens, it has potentially very significant effect. In this case, it is my professional opinion that Lt. Watada cannot be tried again because of the effect of double jeopardy.

“As you all know, we did not consent to a mistrial. We did not ask for a mistrial. We did nothing to warrant a mistrial. The judge made all of his rulings himself or based upon motions by the government.

“Once jeopardy has attached—and it clearly did attach in this case, when the jury panel was sworn in and when the first witness testified—the protection against double jeopardy applies as a constitutional matter.

“And there may be arguments that could be made by the government to get around that, and we will probably have a lively discussion of it. But the first motion we file when they attempt to bring this case back will be a motion to dismiss with prejudice, based upon double jeopardy…” (Seitz's statement and other news about Ehren Watada's case can be found online at

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