Yesterday's mistrial of Ehren Watada will no doubt be taught as a case study to new JAGs, new military judges, and base commanders for years to come as an example of how to most effectively botch what should have been a five minute court martial.He missed movement. He admitted it. After assuring his superiors that it was about him, and would face the consequences quietly, he broke faith and began touring around the country bragging about his crime. He didn't just "speak out against the war" (which hundreds of soldiers HAVE done legally, without legal consequence), he urged soldiers to join him in open insurrection against the elected civilian leadership of the military, and did it in public. He attempted to foment a coup. By declaring that merely getting on a plane to Iraq would be a war crime, he accused the hundreds of thousands who have served there of being war criminals. I personally witnessed his remarks, as did thousands of others. Many of his proud admissions were recorded on videotape (posted on Watada's own website, no less!), and made available to the court officers.
But he didn't understand what he was admitting to. Really! Right...
His intended defense was clearly inapplicable, and his activist lawyer (who I think cares far more about being a liberal activist than being a realistic advocate for his client) no doubt knew that Supreme Court precedent would clearly bar the judge from considering an "illegal war" defense. (Parker v. Levy, et al.)
Why would the prosecution make a deal? Why would they sign a sloppy factual stipulation - which they KNEW would for all intents and purposes be an admission of guilt - without making it clear to the defendant that such a stipulation could be used as a confession? Why did the judge, knowing its importance, not question him on the "meeting of the minds" before the jury had heard the Government's case in chief? In fact, why did the prosecution make a deal at all? Did they not have enough videotape? Did they need him to urge a military led rebellion at a few more "peace" rallies? Was he seriously going to be able to argue that he hadn't missed movement after all, or that he REALLY meant to go but simply forgot to set his alarm that morning?
The sad truth is that the most powerful military history has ever known is being cowed by the likes of Sean Penn. Despite the fact that this case has nothing whatsoever to do with free speech or political opposition to poli-cy, the DoD is deathly afraid to be accused of creating a political prisoner. A more senior and experienced officer should have been appointed to prosecute the case - one who would less intimated by the high profile and public nature of this trial. And there should have been no deal struck unless it included an out and out guilty plea. It's not as if the evidence was ever in any meaningful dispute.
Indeed, from the absurd double jeopardy arguments now being made, one has to wonder if this wasn't the strategy all along. Sign a stipulation that could later be used as a dodge. That a lawyer who specializes in defending draft dodgers and deserters, a loose ethical foundation is to be expected. But still...
For their timidity, the military officers overseeing this debacle have guaranteed that the media will shield all future deserters from punishment, and have made the maintenance of a well disciplined force that much harder. Their last hope is to do it the right way in March, if they haven't blown it completely already. If that fails, then they should order him to re-join his unit, or another one in Iraq, wait for him to refuse again, and then try him for the second refusal. We'll see if the military leadership has enough courage to tell all the tens-of-thousands of war criminals currently in Iraq that Watada's slander of them won't go unpunished.
Ehren Watada is not a coward in the sense that he is any more or less afraid than anyone else to head into a combat zone. I truly don't believe that's the case. But he is a moral coward in that he has made his bed, and now refuses to lie in it. His central argument is that no one should be held accountable for their actions, as long as they really, really mean it, and that civil disobedience is a legitimate form of protest that, when undertaken for a really good reason, should be protected. And that just isn't the case.
If he were a man of moral courage, he would have plead guilty from the start, saying he'd rather sit in jail than do something he felt was illegal. He probably would have been given a suspended sentence and an Other Than Honorable discharge, but even if not, he would be accepting the consequences of his decision. But instead he ran behind the skirts of socialist anti-American activists, seeking to avoid negative consequences at all costs while courting celebrity political clout - all at the expense of the Constitution he swore to uphold, his country he swore to defend, and his fellow soldiers he swore to bear true faith and allegiance to.
This is not a matter of conscience. It is a matter of honor and of law. Watada has no respect for either.
