Reuters: US Army to call reporters in officer's case (Watada)

[Eugene]

US Army to call reporters in officer's case

Reuters
Tuesday, July 11, 2006; 12:19 AM

SEATTLE (Reuters) - The U.S. Army plans to call two journalists as witnesses
to support charges filed against an officer who refused to fight in Iraq
because of his objections to the war, the lieutenant's lawyer said on Monday.

First Lt. Ehren Watada is facing charges over his refusal to deploy to Iraq
with his unit on June 22 and choosing to remain at the Fort Lewis base
in Washington state.

Last week, the Army charged Watada with missing his deployment, conduct
unbecoming an officer and contempt toward officials. If found guilty on all
charges, he faces up to seven years of confinement, dismissal and forfeiture
of pay.

To prove that he made "contemptuous" comments about President George W. Bush
and therefore engaged in conduct unbecoming an officer, the Army plans to call
two journalists to attest to comments Watada made during interviews, the
officer's lawyer, Eric Seitz, told reporters.

<snip>

Full article: http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071100008.html

Also: Watada lawyer sees slim hopes for acquittal - Seattle Post-Intelligencer

[sandnsea]

1. Does anyone have the charges?

The actual indictment or whatever it is from the military.

Because from the sounds of this article, he's being charged for telling the truth about George Bush.

"..The charge sheet quotes Watada as saying in one interview"
"As I read about the level of deception the Bush administration used to initiate and process this war, I was shocked. I became ashamed of wearing the uniform."

Did they really charge this guy with contempt and conduct unbecoming based on statements like this??

[Kagemusha]

3. He's an officer, he's not allowed. Enlisted men are.

It's a legit crime under the totally legal Uniform Code of Military Justice.

That's why when people told me to support this guy, I said, hey, I sympathize with him, but he's going down.

[sandnsea]

4. But that's not what I asked

I asked whether we had the actual charges in order to see whether they were any worse than using words like "deception". Because that's the absolute truth, not contempt at all. If he told a respectful and factual truth about the administration, president and mission - and can prove it - then I don't know that it will be ruled contempt. The military cannot say that troops and officers in Abu Ghraib are guilty for not saying something about the illegality of their mission, and then turn around and say this officer is guilty because he does discuss the illegality of the larger mission.

[Kagemusha]

10. But truth isn't a defense for officers.

Telling what you believe to be the truth, that they think is hell, is a crime under the UCMJ. Congress said so. You have a problem with it, petition Congress to change the law, petition Bush for a pardon. But telling the truth Harry Truman style was a luxury for Truman - note that MacArthur was not permitted to stick around while expressing contempt for his President, though not in the same language.

Edit: But not allowing Watada to resign his commission was cruel and petty and intended solely to set an example through a gratuitous public smackdown.

[sandnsea]

11. The language used

That's why I wanted to see the charges, in order to really look at the language used, whether it was truly contemptuous or mild truth - deceptions used by the Administration. I also said the comments would have to be absolutely provable - not just what was "believed to be" the truth.

My husband said he should have resigned, that officers are allowed to do that. So he did try to resign his commission?? I missed that, could you fill me in.

I think we're going to have to reconcile the requirement for the military to not follow illegal orders which is required by the Geneva Conventions with the military requirements for soldiers to follow all orders without question. It just can't be both ways.

[Kagemusha]

13. He attempted to resign and his resignation was rejected

and then they charged him.

You're never going to reconcile that argument because the US has held the position that an order can be illegal under the Geneva Conventions can be legal under US law and therefore must still be obeyed... why didn't this argument work for the Germans? Because they lost.

[sandnsea]

14. It has to be reconciled

We've always done it this way isn't good enough, and neither is we're the US and can do what we want.

You didn't answer my question on resigning commissions. Can an officer generally resign a commission whenever he feels like it?

[Kagemusha]

20. In the era of stop-loss and thinning of the officer corps, no.

An officer can generally resign a commission when his military branch chooses to accept it. The day you receive a deployment order, the military is very, very upset with anyone who tries to get out of such a deployment. It has no use for sunny day soldiers. You quit before you're ordered into a war zone by your Commander in Chief, not after. Otherwise you're defying orders.

[coalition_unwilling]

15. Isn't the "truth" an absolute defense to charges of contempt? (Much

as the truth is an absolute defense in a libel case.)

[Kagemusha]

19. Absolutely not! Not in this case.

Speaking contempt for the President, as an officer, is absolutely fatal to morale, particularly if charges are true. Besides, unfortunately in this case, the US considers the war to be legal as a matter of legal policy and, therefore, orders given to fight it are completely legal. This poor sir's personal opinion to the contrary will not overcome the opinion of the President in a court of law. The President *is* the Decider here, and an army Lt. is not.

See, the war may have been an abuse of international law by interpreting a Security Council resolution on Iraq far more broadly than those who voted for it (besides the US) ever intended, with Britain being intentionally mendacious about the meaning of what it thought it was voting for then, but neither did the Security Council condemn the Iraq war as illegal. (If it had tried, out comes the US veto, that's what it's there for!!) So since Congress never fought the President on the "war" either when Bush ran with his AUMF re: Al Qaeda to invade Iraq, to the US military, the war and the orders to fight it are, domestically speaking, fully legal. And internationally, fully legal as well, since no binding resolution has condemned the war, however in violation of the UN charter it may be. Just because the US thinks it and Britain can and should be international vigilantes doesn't mean the other nations of Earth have come to believe that their knowing that the war is against the UN charter in spirit means a damn thing unless the US refuses to veto a Security Council resolution against the US war, like it did against Saddam's invasion and conquest of Kuwait.

So I'm sorry, the poor Lt. is gonna fry, so to speak. I respect his opinions, but the President's are legally binding upon a serving officer, and his aren't. They should have let him resign, but they want to send a message that in this volunteer army, you choose whether to serve at all - you do not get to pick and choose what wars you like.

And an order by the President being illegal is utterly unthinkable, even if Congress, by some unused technicality, authorized such refusal with its enacting the Geneva Conventions through the UCMJ.

[coalition_unwilling]

22. You make a convincing case and I'm no expert. I would, however,

take issue with your final paragraph. I don't believe an "order by the President being illegal is utterly unthinkable." Consider the order to create military tribunals, recently rejected by the U.S. Supreme Court.

Or were you talking about specific types of orders? (Not clear what your meaning was.)

If you check the court martial proceedings against Pablo Paredes (US Navy), you'll find that Paredes, although found guilty, was allowed wide lattitude to make this defense and that the convening officer's remarks indicated that he thought the Iraq war probably was illegal.

[Kagemusha]

23. I meant unthinkable to the military itself. They're not the courts.

If the President says something is legal, the military has to assume that unless very very specifically ordered not to by the courts, then it is legal because the President says it is. That's because there can be no question of the military wantonly defying civilian authority. This isn't Turkey. The civilian government isn't on permanent probation subject to military takeover.

Obviously this invites great abuse and a doctrine that the courts and congress do not have the power to restrain the President in his command of the military really does create a doctrine that the military can do no wrong save defiance of the President's orders, including orders to deploy to Iraq. Hence why these people are found guilty no matter what their defense is. That's because they are not the proper judges of whether the entirety of a military conflict is illegal or not. As far as the military's concerned, wider legality be damned, the deployment order in itself is legal and binding and you defy it at your cost.

What I strongly resent is the abuse of the President's great latitude to command the military. But, if Congress really thought this war was illegal, it has means by which to make that clear. It has not. Ergo, constitutionally, Congress wants the military to continue to obey the President in all matters regarding the Iraq conflict, which it has permitted. Ergo, defiance of a lawful order is not just defiance of the President, but defiance of Congress as well, including the House of Representatives, which is the most democratic and closest to the People. My heart's with Lt. Watada, but my head says he's gonna be found guilty as all hell. I pity him.

[coalition_unwilling]

25. Again, I'm no expert. But don't the principles established at the

Nuremburg War Crimes trials after World Warr II and the Japanese War Crimes trials fly in the face of your opening sentences?

To wit, if the President ordered that captured enemy combatants be summarily executed by the military, wouldn't the military be justified in disobeying an "illegal order," as recognized by Nuremburg? Just because the Prez orders it doesn't make it legal (my reversal of Tricky Dick's formulation).

Likewise, if the Sec of Defense ordered captured enemy combatants to be boiled in hot water, wouldn't the military be justified in disobeying an "illegal order," as recognized by Nuremburg?

I'm not saying I disagree with your overall point, but am saying that if a case can be made that the war is "illegal" under international law and treaties to which the U.S. is signatory, then a presumptive defense of not obeying an illegal order can be made.

Hmm -- this is a little like the "chicken and egg" argument. Have you read Melville's "Billy Budd" by the way?" Deals with the subject broadly of mutiny on the high seas and Captain Vere's attempts to follow the "letter of the law."

[Kagemusha]

26. Yeah, the Nuremburg Principles fly in the face of what I just said.

I know that and I still say that the way the US interprets the law suggests that lip service aside, in practice, it expects orders that may seem illegal to be obeyed if you're not really, really sure it's illegal. And, therefore, in practice, I say that Nuremburg was indeed victor's justice.

Also this is why you hire guys like Yoo to make fancy theories as to why torture is legal...

[Biernuts]

21. Contempt towards officials is a crime unique to Officers, Cadets and

Midshipmen. http://usmilitary.about.com/od/punitivearticles/a/mcm88.htm

The elements of proof are essentially:

1. The accusewd said what he/she said, and
2. In the context they were said, they were contemptuous towards the official.

Truth or falsity of the statement is not a defense.

The officials that officers may not show contempt for are: "President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth" (only when the accused was then present in the State, Territory, Commonwealth, or possession of the Governor or legislature concerned)

Here's a quote from Article 88

"Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial."


There is precendnt - In the 1990s, an Air Force Major General made a statement that President Clinton was a draft-dodging, dope-smoking womanizer. He was punished under the UCMJ's Article 15 (non-judicial punishment) and retired.

Maximum penalty is Dismissal (Officer equivalent of a Dishonorable Discharge), forfeiture of all pay and allowances, and confinement for 1 year.

[happyslug]

24. Prior to 1954 and the adoption of the UCMJ, it applied to enlistees also

In fact there is a 1945 case where a man who supported Hitler was drafted into the US Army. Once in, he continue to state his support for Hitler. This Draftee was Court Martial-ed under the Old Articles of War WHICH INCLUDED an article very similar to the UCMJ Article this Officer is charged with but extended to Enlistees as while as officers. The Draftee claimed Freedom of Speech, but the Court Marital denied that Claim. the Draftee took the Case to the Federal Courts and it reached the Court of Appeals which upheld the Conviction on the grounds the clause in question had been the LAW since Oliver Cromwell wrote the Original Articles of War in 1649 and had been in the Articles of War since 1649 and re-passed by Congress several times (including in 1775 when Congress adopted the Army outside Boston as its National Army) and never changed.

Now no one liked that decision so when Congress wrote the Uniform Code of Military Justice (UCMJ) in 1954, the Article was re-written to cover Officers only. Chaney and Rumsfield have attempted to reverse that change by making a regulations that it applied to Enlistees, but I question whether the Administration can undo a change WRITTEN BY CONGRESS by regulation (that is legalese saying the Regulation is illegal).

As to WHY the Army wants to add these additional charges, the reason is simple, the Army wants to tie in as many courts against the Officer as possible, thus diluting the issue of Iraq being an illegal war. Speaking contemptuously of the President is NOT a violation of the Geneva Convention and as such the Officer conviction ON THAT CRIME can NOT be reversed by an Appellant crime on the Grounds an officer has the DUTY to refuse ILLEGAL ORDERS. As I said in previous thread on this case this Officer's best defense is to keep it clean to the issue of his refusing to obey an Illegal Order (That is based on the Iraq war being illegal and thus any order to go to Iraq is an illegal Order). The Army wants to be able to get him on something OTHER THAN disobeying orders, just to muddy the case. If the Army can do so, even if he prevails on his claim that the War in Iraq is illegal he stills goes to Jail (and that sends a message to the rest of the military to obey ALL ORDERS).

Now I do NOT think he will prevail on the claim Iraq is an illegal war, but if he does than under the Geneva convention and the UCMJ than ALL US Military Officers and Enlistees MUST refuse to obey any order to go to Iraq. The Officer is aiming for big stakes if that is his aim. If I was his Attorney I would be advising him NOT to take this stand, but to follow Orders (The Law presumes all Orders are Legal, the burden will be on him that the order was Illegal). The Army wants these addi tonal charges to muddy up the trial, to make it less a trial on the illegality of the Iraq War and more on this Officer's failure to preform his Duty as an Officer.

[Kagemusha]

27. I recall officers reported to have told enlisted men it applied to them

Note that legally speaking this is blatantly untrue, but the intended effect - to strongly discourage criticism of civilian leaders - was obtained. Obviously if any of this ever rose to the level of suggested court marshalling of enlisted men the JAGs would say point blank, you can't do that. So it remains at the level of intimidation and what ought to be illegal rather than what actually is.

Unfortunately for this individual, the only conclusive way for the war to be illegal is if it was conducted in violation of a Security Council resolution that it was indeed illegal. No such thing exists. Therefore, if the legality is up in the air, the Army can indeed make it about his duty as an officer, and he's screwed.

[Sherman A1]

2. It will be a very interesting case to follow

[Dhalgren]

5. If the Dictator (and his Army) had any sense, at all, they would

drop the case and give Watada a General Discharge - end of story. Taking this to trial AND calling reporters as witnesses will open up these proceedings in a way that the Dictator's Army won't like. If Watada loses, so does the Dictator's Army...

[meganmonkey]

12. But if they do that

it would open the door for other officers to do the same.

I, for one, think that would be fabulous. But highly unlikely. I think they want to prosecute this brave man to the fullest to discourage others from following suit.

I think Watada is an incredibly brave man, and I hope he is an inspiration regardless of the outcome of this case. We need more people refusing to go back and fight in this illegal war!

:patriot:

[coalition_unwilling]

16. I'm trying to recall whether there was a similar figure in the

Officer Corps during the Vietnam War? Does anyone reading this know of any examples? (Kerry waited until he got back to start speaking out.)

[happyslug]

28. A LT was court martialed for attending a Protest Rally

And he was convicted for holding himself out as representing the Military because he went to the rally in uniform. Other than that I have NOT heard of any single case.

The reason for this can be simple. While all Officers are volunteers, many during the Draft decided to become an Officer rather than serve in the enlisted ranks (i.e. they became an Officer just before they were drafted). While a Commissioned Officer can RESIGN his Commission at any time, if he has any military obligations he must perform those obligations even as an enlistee. Thus if someone Volunteered to be an Officer if he had agreed to serve so many years in the military he had to serve those years. Thus if he resigned he be became a Private with a record of being a trouble maker (Something any Officer does NOT forward to).

Officers who had gone through training (including the Academy) also have a military obligation as payment for their education (Last time I checked it was six years). Such an officer can theoretically resign his commission, but than he has to either pay back the money spent on his training OR some other way to payback the military for his training (This is especially true of Pilots). Thus a lot of Company Grade Officers can NOT resign even if they believe what they is doing is Military stupidity (Which is when any officer worthily of the name should resign).

I do NOT know what Watala's military obligations, I suspect he still owes the Army time, thus his offer to resign was refused do to the need of the Military for Captains (The Military also retains the right to retain an officer for military need even if he wants to resign, through this is rarely done for no one wants an officer who opposes the military operation he is being retained for). As an Officer Watala had gone to some sort of Training as an Officer and as such probably owes the military some time (Through from what I have read this was NOT stated against him so he might be free of any military obligations). As a general rule Captains very rarely resign do to conflict with Orders, they want to make Major and then go to advance training for example the Army War Collage. Just remember Captains do NOT make military policy, Field Grade and General Grade Officers (Majors, Lt Colonels, Colonels and Generals) make policy, not Captains and as such should resign if a Military proposal is presented to them that is stupid from a military point of view.

[gratuitous]

6. Truth probably isn't a defense

So even if George W. Bush is engaged in "contemptuous" behavior, a military officer can't call it like it is without risking property, liberty and life.

But it appears that Mr. Watada is willing to pay that price. Would that a few more of our uniformed "heroes" were of a similar mind.

[qazplm]

7. truth is no defense

I get attacked all of the time by people who say that military officers should speak out while on active duty, that nothing will happen to them, this shows that just aint the case.

[gratuitous]

8. I wouldn't say "nothing" would happen to them

But I know that for myself, weighing a military career against following my conscience, there's no question to me where I would come down. I know a lot of folks are struggling with this choice every day. Mr. Watada truly is risking something by following his conscience. His comrades in arms, his country, and the media will all excoriate him for his choice, mostly because the hope he doesn't establish a trend or create any followers or imitators.

There's a scene in the otherwise forgettable movie "The Bounty" when Mel Gibson's Fletcher Christian has decided to mutiny. He looks to one side to see his former fellow officers, all class and gentlemanly rectitude, and on the other side are the ship's mutinous crew, grinning and slavering in their common trashy manner at the prospect of giving the officers what's coming to them. Christian has made his choice, and there's no going back, but he wails to the high sky "I am in Hell!" all the same.

But, when you're going through hell, the best advice is to keep going.

[David__77]

9. Support the troops who resist this criminal war of aggression!

http://thankyoult.org/

Support Lt. Watada!

[coalition_unwilling]

17. Please sign the petition on his behalf (eom)

[Dhalgren]

18. I just watched the video Lt. Watada made on the site you offer.

It was a very moving statement by this young man. And he IS a man, a leader, it comes out through his demeanor and his words. We need more young men like this brave man...