He was the
first commissioned officer in the US armed forces to refuse to deploy
to Iraq, in June, 2006. Watada refused to deploy for his unit’s assigned
rotation to Operation Iraqi Freedom, saying he believed the war to be
illegal and that, under the doctrine of command responsibility, it would
make him party to war crimes. At the time, he was assigned to duty with
the 5th Battalion, 20th Infantry Regiment, part of the 3rd Brigade, 2nd
Infantry Division, as a Fire Support Officer. He was brought before a
court-martial in 2007 which ended in a mistrial, and was discharged in
2009. Watada was born in Honolulu, Hawaii to Robert Watada and Carolyn
Ho. His father served for 10 years as executive director of Hawaii’s
Campaign Spending Commission and himself refused to serve in the Vietnam
War. Ehren Watada attended Punahou School, then transferred in his
sophomore year to Kalani High School, where he played cornerback on the
varsity football team. An Eagle Scout, Watada graduated from Hawaii
Pacific University magna cum laude in 2003 with a B.A. in Finance.
Watada joined the Army after the war in Iraq had begun, stating that he
was motivated “out of a desire to protect our country” after the
September 11 attacks. He was commissioned by the Army’s Officer
Candidate School, on November 2003, at Fort Benning, Georgia as a Second
Lieutenant of Field Artillery – one month after Security Council
Resolution 1511 authorized a multinational force in Iraq. Watada served
one year in South Korea, and was subsequently reassigned to Fort Lewis,
Washington. 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. Watada claims
that, after reading several books and articles about the history of
Iraq, international law, and the evidence used to justify the war, and
speaking with veterans returning from Iraq, he ceased to believe in its
legality and justification. 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 for which he had contracted, as
required by law. 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.
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, which he regarded as “an unambiguous
war linked to the September 11 attacks.” This was also refused. Watada,
in turn, refused an offer for a desk job in Iraq without direct combat
involvement. In response to Watada’s refusal to deploy, the Army
initially proffered seven specifications of various offenses under the
UCMJ. Since the initial preferral, all but three specifications were
dropped; the remaining ones sent to the court-martial follow: 2
specifications Conduct Unbecoming an Officer and a Gentleman (for
statements made in speeches and interviews) (Article 133) 1
specification Missing Movement (for refusing to deploy to Iraq on June
22) (Article 87). When the initial charges were proffered, Watada faced
the possibility of a General court-martial and up to seven years in
prison, as well as dismissal from the service. (“Dismissal” is the only
class of punitive discharge for U.S. commissioned officers; it is the
equivalent of a dishonorable discharge, to which enlisted personnel may
be sentenced.)
Even faced
with these consequences, Watada has said that he does not regret his
decision, stating that he believes it to have been his moral
responsibility: When you are looking your children in the eye in the
future, or when you are at the end of your life, you want to look back
on your life and know that at a very important moment, when I had the
opportunity to make the right decisions, I did so, even knowing there
were negative consequences. On these charges, Watada’s civilian
attorney, Eric Seitz, comments: Well, we expected him to be charged with
missing movement or violating an order to get on a bus to accompany his
unit to Iraq. We did not really anticipate that they would charge him
with additional offenses based upon the comments and the remarks that
he’s made. And that opens up a whole new chapter in this proceeding,
because what the Army has clearly tried to do by the nature of these
charges is send out a message to people in the military, that if you
criticize the war and if you criticize the decisions that were made to
bring the United States into this war, that you, too, could be charged
with disloyalty, contemptuous remarks and disrespect for higher
officers, and in this case, specifically in this charge, the President.
Watada’s article 32 hearing to determine whether there was sufficient
evidence to move forward with a general court-martial was held on August
2006. The investigating officer Lt. Col. Mark Keith presided. The Army
prosecutor, Capt. Dan Kuecker, described Watada’s actions as
contemptuous of President George W. Bush, and argued that Watada’s
public statements hurt morale in his unit. He played video clips from to
a Veterans for Peace conference. In that speech, Watada called on his
fellow soldiers to stop fighting. Eric Seitz, Watada’s civilian counsel,
and Capt. Mark Kim, Watada’s military lawyer, raised the issue of the
legality of the war. Over the prosecutor’s objections, Seitz and Kim
called three witnesses to question the legality of the war. University
of Illinois Professor of international law Francis Boyle testified that
the war is illegal because it was not authorized by the U.N. Security
Council, and claimed that Congress approved the war on the basis of
faulty intelligence. Also testifying in Watada’s defense were Former
United Nations Undersecretary Denis Halliday, and Army Colonel Ann
Wright (ret.), who retired from the state department in March 2003, in
protest of the coming invasion. Like Boyle, both asserted that the war
was illegal and that therefore Watada was within his rights to refuse
participation in it. Also, the American Civil Liberties Union (ACLU)
filed a friend-of-the-court brief, saying that soldiers should not be
court martialed for explaining their views. On September 2006, the Army
announced that it had proffered another charge against Watada of
“conduct unbecoming an officer and a gentleman”.
This
brought the potential prison term faced by Watada to eight and one-half
years in prison if convicted of all charges. Approximately six of these
years would have been for statements that he made concerning the war
rather than his refusal to deploy to Iraq; “missing movement” is
normally punishable by two years. Keith justified the additional charge
by asserting that “contempt for the President and suggestion that US
soldiers can stop the war simply by refusing to fight borders on mutiny
and sedition.” On the other hand, Eric Seitz asserts that the Army added
the new charge to make a public example of him: “He’s not doing
anything other than saying things he believes to be true, and that we
believe are true. This makes it that much clearer that this is just a
political prosecution, and that’s really all this case has been about
from the beginning.” Keith recommended Watada for court-martial on all
charges, even as he said that he thought that Watada was “sincere in his
beliefs.” Of the court-martial recommendation, Seitz accused the Army
of trying Watada without looking seriously at his arguments and that of
the other experts appearing at the trial about the legality of the war.
On November 2006, the U.S. Army announced the decision of the Fort Lewis
commander, LTG James Dubik, that Watada would face a court martial. The
charges of “contempt toward officials” were dismissed without comment.
Without the “contempt for officials” charges, Watada could face up to
four years confinement, two for missing movement and two for statements
that he made, as well as a dismissal, and forfeiture of all pay and
allowances, if convicted of the remaining charges. Watada’s defense team
had intended to demonstrate that the war was illegal by maintaining
that the required congressional approval was granted only on the basis
of the existence of WMDs in Iraq and ties between Saddam Hussein and
al-Qaeda. They also intended to subpoena witnesses to testify and to
cite the Nuremberg Principles, which require soldiers to disobey illegal
orders. However, on January 16, 2007, Judge John M. Head ruled that
Watada would not be allowed to present any defense based on the
Nuremberg principles, stating that the legality of a war was a
“nonjusticiable political question” and ruling that the order that
Watada had refused was lawful.
Watada was
also forbidden to present a First Amendment defense. Seitz said about
the rulings that “they are essentially saying there is no right to
criticize, which we all know is not true,” and that they intend to
appeal any conviction to the federal courts. At a pre-trial press
conference Watada remarked that he believed it his duty to refuse to
fight in the war, and that he was prepared to face prison time for his
beliefs. Watada was court-martialed in February 2007, with the case
ending in a mistrial. On February 5, 2007, Watada’s court-martial began
with him entering a plea of not guilty to all of the specifications
against him. He faced three specifications: one for missing movement,
and two for “conduct unbecoming an officer and a gentleman” related to
his public comments criticizing the Bush administration and the war.
Panel selection was conducted on the first day, narrowing a pool of ten
officers down to seven, holding the rank of captain through lieutenant
colonel. The court-martial panel is similar to a jury in a civilian
trial, but due to special rules provided in the Uniform Code of Military
Justice (UCMJ), panels consist of service members equal or superior in
rank to the defendant. On the second day of his court-martial, the
prosecution presented opening arguments stating that Watada had
“abandoned his soldiers and disgraced himself and the service” and began
calling witnesses. The first witness called was Watada’s former
Battalion Commander, Lt. Col. Bruce Antonia. He testified that he
learned of Watada’s feelings about the war soon after Watada concluded,
in early January 2006, that the war was illegal. Antonia stated, “I told
him I was concerned. I did not want this to turn into a big media
event.” Furthermore, his chain of command counseled him on the
consequences of his actions if he refused to deploy and used his
position to make a spectacle of the issue. Lt. Col. William James,
another officer who counseled Watada, testified that he found Watada’s
offer to serve in Afghanistan in “direct conflict” with Watada’s written
statement or stipulation that he did not want to deploy as a “tool” of
the Bush administration.
Watada had
also stipulated that he had indeed missed his brigade’s June deployment
to Iraq and that he made a series of public statements against the war.
In return for the stipulation, Army prosecutors had dropped several
counts that knocked two years off the maximum six-year sentence. Watada
argued that his orders were unlawful, and Military Judge John Head ruled
that the question could not be resolved within the military justice
system, and decided to strike Watada’s stipulation, calling it an
admission of guilt. Recognizing that the stipulation was the basis of
the prosecution’s case, Judge Head granted their request for a mistrial.
A new court martial was set for March 2007 rescheduled for July 23,
2007, and then postponed until October 2007, as an appeal based on the
issue of double jeopardy delayed the case. Following the ruling on July
5, 2007, by Lt. Col. John Head, again presiding over Watada’s
court-martial, that double jeopardy did not apply, Watada’s attorneys
appealed the ruling to the U.S. Army Court of Criminal Appeals and then
to U.S. civilian court. On October 2007, U.S. District Court Judge
Benjamin Settle stayed further proceedings until October 26. The Army
challenged the injunction. Watada was represented by Ken Kagan and Jim
Lobsenz with the Seattle law firm Carney Badley Spellman, who have
replaced Eric Seitz. On the issue of double jeopardy, Joe Piek,
spokesman for Fort Lewis, argued that the rules for courts-martial (MCM
Rule 915(c)), allow the Army to try Watada again, on the theory that the
mistrial is not a decision and that the mistrial was not due to
prosecutorial misconduct. Others, including the military defense
attorney assigned to Watada, as well as Kagan and Lobsenz, argued that
double jeopardy attached at the start of the presentation of evidence.
Rule 907(b)(2)(C) of the MCM states that jeopardy attaches at the
“beginning of the presentation of evidence on the merits,” raising the
possibility that jeopardy attached prior to the declaration of mistrial.
The second
court-martial was stayed in October 2007 by U.S. District Judge
Benjamin Settle, on grounds of double jeopardy. Settle issued an order
stating that Watada’s “double jeopardy claim is meritorious” and that no
evidence to the contrary was presented. The Army challenged the
injunction, and Judge Settle ruled on October 21, 2008, that Watada
cannot be retried on three of the five counts, but abstained from
deciding whether the remaining two counts of conduct unbecoming an
officer may go forward. On November 8, 2007, the injunction was extended
by Judge Settle, who held that Lt. Watada’s double jeopardy claim is
meritorious, and that there was no evidence presented that it lacks
merit. The Army appealed to the 9th Circuit Court of Appeals in
November, 2008. But after the Obama administration took office, the
Justice Department asked the court to drop the case, which was dismissed
on May 2009. On October 2009, the Army discharged Ehren Watada.
Watada’s defense attorney stated that in his opinion, “the Army came to
the conclusion that it was not going to be able to prevail in a
prosecution, and when the new solicitor general came in, her office had a
fresh look at it, and as it was not bound by any of the decisions that
had been made previously, they saw fit to put a stop to the appellate
process.”
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