Lt. Ehren Watada, a soldier stationed at Ft. Lewis, Washington, is currently in hot water due to his refusal to deploy to Iraq, calling it an "illegal war." The current situation is this:

Officer to Fight Against Retrial - SF Gate The lawyer for an officer whose court-martial for refusing deployment to Iraq was abruptly halted this week says the Army's planned retrial of his client would violate the constitutional ban on double jeopardy.
...
The Army denies that a retrial would constitute double jeopardy. And an independent expert on military law said Thursday he thinks Watada can be retried.

Questions for debate:

1) What is your gut sense regarding the double jeopardy question?

2) Should Watada be tried at all?

3) Watada has called for the troops in Iraq to throw down their arms, i.e., refuse to obey the orders of lawful civilian authority. Should he be tried for inciting mutiny?

4) Do you think that Watada is a good "poster boy" for the anti-war movement?

1) What is your gut sense regarding the double jeopardy question?
The double jeopardy argument by his lawyer is false. He needs to be punished or acquitted in order for double jeopardy to apply. Neither has happened, this is simply a mistrial because of paperwork.

2) Should Watada be tried at all?
Sure, he should be tried. I wouldn't convict him because it really comes down to an interpretation of the Iraq War. And we have muddied the situation. According to the Geneva Convention, this war is illegal, but since we are not a member of the International Criminal Court we can't be tried and be officially declared war criminals. So there is a conflict of domestic law and international law.

3) Watada has called for the troops in Iraq to throw down their arms, i.e., refuse to obey the orders of lawful civilian authority. Should he be tried for inciting mutiny?
Law is all about interpretation. If the judges try him and convict him, then they could conceivably convict him for mutiny as well. But that all depends on the interpretation of the Court Martial. His basic argument is that this war is an illegal war, thus the order to go to war is an unlawful order. According to the UCMJ soldiers are not authorized to follow illegal orders. A commanding officer could order a subordinate female enlistee or officer to perform oral sex on him. Or to murder someone, these are not legal orders and while the CO gave an order, the person delegated to fulfill that order is not legally bound to do so. This is Lt. Watada's argument, and it's a good one, if the judges interpret the war in this manner.

4) Do you think that Watada is a good "poster boy" for the anti-war movement?
Lt. Watada is very courageous. He knew that he would be under extreme pressure once he made his decision. I bet the guy is going gray over all the thought he gave this decision and the backlash he would get from his enlisted men and his superior officers. With that said, Lt. Watada does not add or detract from the anti-war movement. If he becomes a spokesperson for the anti-war movement, he'll get demonized unfairly like Cindy Sheehan. If he gets convicted, there won't be an uproar. His stance is courageous, his overall effect is minimal, if any.

1) What is your gut sense regarding the double jeopardy question?

I'm not sure. I did note this comment from your link:



I guess it depends on if a higher court determines if the judge improperly declared a mistrial. This would take a lot more legal knowledge than I have. I can see it going either way.

2) Should Watada be tried at all?

Yes. By his own admission, he chose to disobey an order (or whatever the proper military term would be for refusing deployment.) Now it remains to be seen if he had the legal right to do so. (Personally, I don't think he has a chance. It would require a legal decision officially declaring the situation in Iraq an "illegal war," and I can't imagine any military court doing such a thing.)

3) Watada has called for the troops in Iraq to throw down their arms, i.e., refuse to obey the orders of lawful civilian authority. Should he be tried for inciting mutiny?

I'd have to find out exactly what he said before I could offer an opinion. Apparently the Army doesn't think his statements were strong enough to warrant such a charge.



If all he did was criticize the war and the President, no matter how strongly, than I don't think the charge of inciting mutiny would be appropriate. If he directly said to other members of the military "Disobey your orders" or something like that, the charge might be appropriate. Some statements might be open to interpretation. If he said "Nobody should be fighting in this war" or something like that, I would not consider that inciting mutiny.


4) Do you think that Watada is a good "poster boy" for the anti-war movement?

Hmm. I'm not sure I really accept the premise of the question. Can anybody really be a "poster boy" (or girl) for such a diverse body of opinion as that found among those who think the war in Iraq is a bad idea? Is President Bush the "poster boy" for those who think the war in Iraq a good idea?

Perhaps one might ask if what Watada did is admirable or not. It certainly took courage; but was it wise? Speaking out against a war he opposes is fine; disobeying an order he feels is illegal is a matter for the court to decide; directly telling troops to disobey an order, if in fact he did so, would be going a step too far.

Overall, I would have to say that Watada is an individual, not a symbol.

According to the Geneva Convention, Watada doesn't have a leg to stand on. Its important to note that American troops are in Iraq now at with the full permission and cooperation of the elected Iraqi government. It is under those conditions that Watada has refused deployment. His argument may have had a modicum of credibility prior to the invasion to oust Hussein (although, legally, his argument would have failed then too, for different reasons), but no longer. As for the conflict between domestic law and international law, there is no conflict. Domestic law triumphs. Period.

Courageous? That, and/or really foolish. There's a lot of indications that he's not "going gray", but rather an anti-war agent provacateur. Watada did not join the service until after Operation Iraqi Freedom began.

From Wikipedia:
He joined the US Army after the war in Iraq had begun, stating that he was motivated "out of a desire to protect our country" after 9/11. He was commissioned by the Army's Officer Candidate School, on November 20, 2003, at Fort Benning, Georgia as a Second Lieutenant of Field Artillery. Watada served one year in South Korea, and was subsequently reassigned to Fort Lewis, Washington.[5]

Soon after reporting to Fort Lewis, Watada discovered that his unit would be deploying to Iraq, in support of ongoing operations there. In preparation to deploy, he began conducting research on the country, its culture, and the reasons for the U.S. involvement in Iraq. After reading several books and articles about the history of Iraq, international law, and the evidence used to justify the war,[6] and speaking with veterans returning from Iraq,[5] he ceased to believe in the legality and morality of the war.

In January 2006, he attempted to resign his commission. The Army denied his request because he had not fulfilled his eight year military service obligation. He used as justification for his request that the war violated the Constitution and War Powers Act which "limits the president in his role as Commander in Chief from using the armed forces in any way he sees fit". He also cited the UN Charter, the Geneva Conventions, and the Nuremberg Principles, which "bar wars of aggression." He argued the command responsibility would make him personally responsible and liable for legal challenges for violating international law. Further, he asserted that the war was based on misleading or false premises such as the existence of weapons of mass destruction in Iraq and links between Saddam Hussein and al-Qaeda, and that the occupation itself did not follow the Army's own legal rules of conduct for occupying a country.[7]

Watada has said he is not a conscientious objector because he is not opposed to all wars as a matter of principle, and he claims he has offered to serve in Afghanistan,[8] which he regarded as "an unambiguous war linked to the Sept. 11 attacks." This was also refused. Watada, in turn, refused an offer for a desk job in Iraq without direct combat involvement.

An observation made by another 1Lt:
It sounds as if he has been planning this. If it can be proven that he is doing this to encourage other soldiers to do this, he would be guilty of formenting a mutiny - a capital offense. This is Article 94 of the Uniform Code of Military Justice:

ART. 94. MUTINY OR SEDITION
(a) Any person subject to this chapter who--

(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;

(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or disturbance against that authority is guilty of sedition;

(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.

( A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct.


Frankly, if this does go to trial, Watada is hosed, especially if any of the officers sitting on the jury served in Iraq. If he's right, then they're all war criminals. What are the odds of them arriving at that finding?

The charges that he did not stipulate to are based, in part, on this speech. Its worth reading, because it bears on question #3.

Its also worth noting that he was a straight A- student, and his father was, ... wait for it...

wait for it...

well, just read this

More than four decades ago, Bob Watada, who lost a brother fighting in Korea, opposed the war in Vietnam.

Instead of running off to Canada, Watada approached his draft board in Colorado and was allowed to serve in the Peace Corps for two years in Peru.

He believed the Vietnam War was illegal.
...
Watada, former executive director of the state Campaign Spending Commission, said he had many discussions about Iraq with his son before the younger Watada enlisted in 2003 -- the same month the U.S. invaded Iraq.


To reiterate what Wikipedia said above:
In preparation to deploy, he {Ehren Watada} began conducting research on the country, its culture, and the reasons for the U.S. involvement in Iraq. After reading several books and articles about the history of Iraq, international law, and the evidence used to justify the war,[6] and speaking with veterans returning from Iraq,[5] he ceased to believe in the legality and morality of the war.

Does anybody want to buy a bridge from this guy? The more I find out, the more its looking like the Lt. should be tried on fraudulent enlistment at the least, if not mutiny. Probably the only thing that's saving him from mutiny is that he's the lone serviceman in this stageplay, so "in concert with any other person" is a tough sell.

1) What is your gut sense regarding the double jeopardy question?

I don't think this is double jeopardy. Furthermore, according to this, he has only been charged with conduct unbecoming an officer, and talking smack about the president. There are many worse charges I can think of if his civilian lawyer doesn't like this these. He broke an oath, and obviously joined the service under false pretenses since the war in Iraq was going on at the time.

2) Should Watada be tried at all?

Definitely.

3) Watada has called for the troops in Iraq to throw down their arms, i.e., refuse to obey the orders of lawful civilian authority. Should he be tried for inciting mutiny?

No. There was no mutiny, so he cannot be tried for inciting it.

4) Do you think that Watada is a good "poster boy" for the anti-war movement?

No. The military serves the republic. The republic has declared that military forces should board the plane and go to Iraq and fight. This lieutenant does not have the power to overrule Congress.

It has nothing to do with this particular war because only citizens, through their elected representatives in Congress, decide whether this nation goes to war. Individual soldiers have absolutely no role (outside of their respective votes as citizens) in political decision-making. If enough voters feel as he does and vote accordingly, the troops can come home.

Anyone in favor of this man’s actions who feels he should not be punished, thereby supporting soldiers who ignore the orders of Congress, should consider the consequences for such a precedent. It has happened in the past and it’s something called a military coup, and the result is that soldiers get to refuse all kinds of orders from their (former) leaders.

Unfortunately, whatever happens I’m sure this guy will become wealthy off of some book/movie deal. Offering the public the rich sort of insight only a lieutenant with absolutely no experience can provide.

Actually, on reading his speech, I think that the charge is broader than "talking smack about the president", and characterizing it in such a fashion plays into the hands of partisans. In keeping with your closing paragraphs, he was talking smack about elected leadership period. I think that needs to be clear, for exactly the reasons you outlined, i.e. military coup.

Man, I'll bet the guys and gals who did his OCS evaluations are "decidedly unhappy."