Monday, the court-martial of Ehren Watada began. Ehren Watada, the first commissioned officer to refuse to deploy to Iraq did so on the grounds that his research (which he was instructed by higher ups) demonstrated that the war was illegal and immoral and that to participate would make himself and those serving under him at risk of committing of war crimes.
Judge Toilet (Lt. Col. John Head) refused to allow Watada to explain his reasons (aka motive) in the court-martial. He forbid it. The defense was prepared to immediately begin filing appeals at the end of the court-martial because, when your hands are tied behind your back and your mouth has been gagged by the judge, what chance do you have of winning?
Monday was spent selecting the military panel (jury) to serve. Seven officers were selected. This was followed by opening statements. Then, on Tuesday, the prosecution began presenting their arguments. By all reports, they did a miserable job.
Wednesday was to be the defense's day. Ehren Watada and one other witness (Judge Toilet had allowed one witness while denying Michael Ratner, Marjorie Cohn and others) would take the stand and testify. Thursday was to be closing arguments followed by jury deliberation.
Never happened. How come? Judge Toilet declared a mistrial.
(You can read about this with multi-links in C.I.'s snapshots from last week: Monday: "Iraq snapshot"; Tuesday: "Iraq snapshot"; Wednesday: "Iraq snapshot"; Thursday: "Iraq snapshot"; and Friday: "Iraq snapshot.")
Why did Judge Toilet declare a mistrial? Supposedly, because of a stipulation (agreement) the defense and the prosecution entered into before the court-martial began. One both sides stood by. One the jury had been instructed on (by Judge Toilet). One Judge Toilet had seen before the court-martial began and had no objections to.
Now if you believe it was really the stipulation, Bully Boy's got a war on Iran he'd love to sell you.
The reality is the prosecution had done poorly on Tuesday. Their own witnesses had allowed that Watada did not create dissension in the unit, their own witnesses had allowed that others had not rushed to follow his lead, their own witnesses had allowed that an illegal order . . . Go down the list. The prosecution was making a case, just not a case for prosecution.
So, on Wednesday, Judge Toilet began making noises, repeatedly, about a mistrial. Before the defense could present their case. He made noises over and over until the prosecution finally grasped that they were being offered a "do over" at which point they stopped saying they stood by the agreement and were joining the cry for a mistrial.
But the defense didn't join that cry. The defense was opposed and remained opposed.
There was no legal basis for the mistrial. Now you better believe every prosecution team in the country would love to know that if they screw up in the case they're arguing, a judge will call "mistrial" and they'll get a free do over. But that's not the way the law works.
The way it works is that Watada was tried. Judge Toilet knew which way the wind was blowing and insisted on a mistrial, the prosecution finally agreed and it was called -- over the objection of the defense.
That's it. They had their shot. They blew it. Watada should not be tried again. They screwed up and the judge screwed up as well. It's over and that's how it should be. Watada walks.
Now Eugene Fidell often makes sound calls in his role as objective military analyst for the media. He didn't with regards to Watada. If he knew what he was talking about, he didn't attempt to make the pertinent points. What was obvious was that he felt Watada should be court-martialed and he supported that court-martial.
Having left the pose of objective to become an advocate (within the media) for Watada's court-martial, Eugene Fidell is no longer the one to run to on this issue, not as an objective analyst. He demonstrated his vested interest and when the press cites him on Watada, they knew to provide a pro-Watada voice because Fidell has made it quite clear that he is anti-Watada.
This does matter because Fidell's going to be advocating anywhere he can that Watada face another court-martial. He is not objective, he is very much subjective on this issue. He also either doesn't know or can't express the issues at play here. That was most obvious when he sat down with NPR's on air sex therapist, Terry Gross.
Now Terry Gross, in all her ditzy, dominitrix glory, was piling as much tension into her every creaking and cracking voice as she could muster. (It helps when all of your stumbles are left out of the broadcast and listeners think they are listening to something live or something recorded live to tape.) But the Not So Fresh Air Gross was asking Fidell about Watada's stand and Fidell either lied or was completely ignorant.
That does matter and Fidell's been all over the place which may be why some still don't get the point. Could Watada refuse an order he determined to be illegal? Yes, he could. One of the bigger lies floating around the press and echoed online is that the military is trained to follow orders and, therefore, no one can object to an order.
That is a lie.
Now if Terry Gross wasn't so bound and determined to be a Queen Bess (Rebecca's term for Queen Bees), maybe she could have invited a woman on to help her explore the issues? Maybe she could have spoken to retired State Department and retired military Ann Wright (retired Col.). Why Ann Wright?
Well Ann Wright taught exactly the course that so many claiming to be military and so many 'experts' in the press never heard of.
Back in August, Ruth noted this from Ann Wright's August 17th testimony at the Article 32 hearing held to determine whether or not Ehren Watada should be court-martialed"
During my military service I have instructed military personnel in connection with their duties under FM 27-10. I did this as an instructor at the JFK Special Warfare Center at Fort Bragg. I taught about the Law of Land Warfare for approximately one year. During that time period I was able to explain to soldiers what the obligations and responsibilities of soldiers in an occupation scenario are.
As a part of our overall military training there is a history of service personnel being told that you do not have to follow an illegal order. It comes from the commissions that we take that we are to uphold the lawful orders of our superiors. Implicit in that is that if there is an illegal order you are under no obligation to follow it.
It is not to[o] often that a soldier will say; "I won't follow out that order, it was illegal." But it is part of our tradition that we call upon people in the military to use their brains to distinguish situations.
You don't want personnel who will carry out illegal orders and say that they were told to do it. You want military personnel who will think about what they are doing.
Yes, active duty personnel can be prosecuted for war crimes that they either commit or direct. There are two levels for that prosecution. The first are based on international laws against war crimes and the second is that the United States has codified the international laws on war crimes. This was done in 1996. This law says that you can be prosecuted for committing war crimes.
There are other myths and lies in the press besides whether or not an officer is trained that they have an obligation to disobey an illegal order. But this may be the biggest myth and lie and if the press is truly interested in the realities of the case, they'd be well advised to speak to someone whose job it was to actually teach the policy.
The prosecution had their shot. They blew it. Judge Toilet blew it by calling a mistrial. Watada walks, no more court-martials. That's how the law works and how this should work.
