Lt Ehren Watada
Summary of pre-trial hearing, 4 January 2007

From, January 2007

Supporters Rally at Ft Lewis
Iraq Vets Against the War - Camp Resistance
Missing Movement Charge
Nuremberg Principles
Conduct Unbecoming Charge May Open Door for Defense
Subpoenaed Reporters Barred During Pre-Trial

The day began under dark clouds as over 100 supporters of Lt. Watada began to gather for a rally and vigil at a freeway overpass near an entrance gate to Fort Lewis. Cars on the freeway below honked in support, with an occasional half a peace sign waved their way.

Members of Iraq Veterans Against the War had arrived from across the country. They set up a month-long “Camp Resistance” across the road from a side gate to Fort Lewis. The veterans will stay at Fort Lewis until the end of Lt. Watada’s court martial.

Several of the Iraq veterans spoke at the support rally, along with Sarah Rich, mother of Suzanne Swift, who had been released from military jail the previous day.

Phan Nguyen, an activist who had been subpoenaed by the prosecution to testify against Lt. Watada at the pre-trial, spoke of the chilling effect this case could have on constitutional rights if journalists and event organizers are forced to testify against those they are helping to get the truth out.

Carrie Hathorn and Liz Rivera Goldstein told the crowd about upcoming plans to support Lt. Watada during the last month before his court martial.

Meanwhile, inside the base, Lt. Watada’s attorneys met with the prosecuting attorneys in the judge’s chambers to try to reach some agreements before the proceedings began in the courtroom.

Most of the seats in the small courtroom were reserved for members of the press. There was also a separate, large overflow room for the public to watch the pre-trial proceedings on a projection screen.

Charge I--Article 88;  Missing Movement by Design

The two sides in the trial argued for most of the day on what would be allowed during the actual court martial, which begins on February 5.

The judge initially seemed reluctant to allow the defense’s call for an evidentiary hearing to present the legal merits of the Iraq war. This was clear even after the defense cited previous cases in which defendants were allowed to do this.  Judge Lt. Col. John Head, was “not inclined” to agree and stated that the issues of the illegality of the war were beyond the scope of a judicial proceeding.

The government must show that Lt. Watada did not act as he was required to act.  He missed movement, but was this his specific intent?  Attorney Eric Seitz argued, no, Lt. Watada failed to participate in what he believes to be unlawful.  Deployment to Iraq is illegal due to international treaties.

The judge maintained that the court martial is not designed to determine foreign policy, but should determine what Lt. Watada was ordered and declined to do.  The prosecutors agreed and said motive in this case is irrelevant.

Judge Head asked if the defense was saying that having an army presence in Iraq was a violation of Nuremberg principles.  Simply having occupying soldiers there is not a crime, but conduct can be impermissible. 

Seitz answered:  wars of aggression, not out of self-defense, without UN approval are crimes against the peace.

The judge asked what this had to do with Lt. Watada, and added for the sake of argument, crimes against the peace under Nuremberg only apply to leaders.

Seitz replied, No, Nuremberg applies to any soldier who has knowledge that he is carrying out an illegal act.  If that soldier has no other moral alternative, he must refuse.

Judge Head:  What was the illegal act?

Seitz:  To go to Iraq and participate in a war of aggression and commit possible war crimes.

Judge Head:  Then every soldier is committing a crime against the peace?

Seitz said that each individual soldier has the responsibility, according to his training, according to his oath, and by law to determine the legality of their acts.  If Lt. Watada violated a lawful order, then he should be punished.  But the defense should at least have the opportunity to show why Lt. Watada believes war is illegal.

If it can be reasonably concluded that the war is in violation of the law, he should not be punished.  Seitz also said that every legal scholar agrees the war is illegal. 

The prosecuting attorney stridently disagreed, and argued the government is required to prove only Lt. Watada’s intent not to get on a bus.

The judge surprisingly voiced his conclusion that what the government sought to prohibit through the front door, they are bringing in through the back door.

By charging Lt. Watada’s speech, the judge contended that the prosecutors were allowing a military jury to consider his motives for refusing the order to deploy.

Had the military not charged Lt. Watada’s public statements, and the Missing Movement charge stood on its own, then the prosecutors certainly may have been able to disallow the defendant’s motives.

Instead the prosecutors have put themselves in a bind:  either charge the lieutenant only with Missing Movement, or open up the court martial to witnesses and evidence that will testify to the officer’s motives.

Charge II--Article 133 (4 counts):  Conduct Unbecoming an Officer and a Gentlemen

Defense attorneys said Lt. Watada's statements reflected constitutionally protected free speech and urged the judge to drop the charges of conduct unbecoming an officer and a gentleman.

The defense also contended the charges were “selective and vindictive” prosecution due to the fact that many senior officers have made critical remarks of the Administration but were not subsequently charged.  Under military law, even retired officers are subject to the Uniformed Code of Military Justice.

The prosecution argued that this was irrelevant as the retired generals were not under the jurisdiction of the convening authority, Lieutenant General Dubik.  Furthermore, the generals were not tied to additional alleged crimes of Missing Movement.

The defense countered that the charges must stand on their own merits. Also, the definitions of “dishonorable” and “disgraceful” statements are of such a subjective nature as to render any political statement by military personnel to possibly be a crime.

The judge asked the prosecutors if they believed the entire context of Lt. Watada’s speech including statements made before and after should be considered. They replied no; they wanted to charge only specific statements they found to be offensive to the Army, regardless of context and regardless of truthfulness.

Attorney Seitz also spoke of the public nature of Lt. Watada's speech.  He spoke when he was not in uniform, he was not speaking duirng his hours of duty, and he did not encourage others to follow in his footsteps.  Seventy percent of the country is opposed to the war.  Lt. Watada did not say anything that hadn't already been heard by troops, so troop morale wasn't lowered any more by his statements.  In fact, none of the arguments that the prosecutors have made, including lowered morale and discipline, can be proven to have taken place because of Lt. Watada. The prosecutors then claimed that these consequences "could" have happened.

Case law is mixed on the issue. The prosecution sought to use a case wherein the court determined any speech that threatens the mission, morale, or discipline should not be allowed under free speech.  Seitz argued that this was too subjective a test and instead used a case in which a court determined that a line is crossed when a service member directly urges disobedience or violent action against the government.

If these charges are dropped, Lt. Watada still faces the charge of missing movement, which has a maximum penalty of two years in prison.  Defense attorney Eric Seitz is hopeful that the additional four charges and four years of prison will be dropped, as it would change the entire dynamic of the case.

Reporters Barred from Pre-Trial

Sarah Olsen, Dahr Jamail, Gregg Kakesako, and Marc Ash are members of the press who have been subpoenaed. The press and civilians who were subpoenaed to testify during the pre-trial hearing were barred by the judge, but they are still on the witness list for the court martial in February.

It is essential for the prosecution to authenticate each statement including any video that was taken of Lt. Watada’s public statements.  This is the reason for the subpoenas.  The government lawyers however, sought to bypass this requirement and were quickly rebuffed by the judge.

Thus far, the majority of the reporters have expressed resistance to the idea of testifying against their source as part of the overnment’s attempt to prosecute free speech. In the words of one reporter, the notion would be a “slippery slope” and cause a “chilling effect” by which truth and dissent from those in the military and indeed in the civilian world would be stifled.


During the press conference at the end of the day, Bob Watada, Ehren’s father, and Carolyn Ho, his mother, both gave strong statements of support for their son.  They also spoke of the lack of courage on the part of some elected officials to step forward and speak out against the war or on behalf of Lt. Watada.

Attorney Seitz said that if material presented in the court martial is limited, they look forward to the opportunity to bring evidence out during the appeals process before both a military appeals court and the Supreme Court.

Judge Head is expected to announce his decisions on the motions early in the week of January 8th.