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Report on Watada Court Martial

[Blogger note:  Sorry this first person account from David Mitchell is very late.] 

Tuesday evening

I could not get internet access to send information on what happened yesterday (Monday). I’ll try to give a summary, but I again need to be up by 4AM to go through the long process of lines and waiting to get a pass onto Fort Lewis Army Base for the 9AM Court Martial.

First, Bob Watada (Ehren’s father) and Rosa (Ehren’s stepmother) are here, but they have not been at the trial. I have been seeing them where they are staying after the proceedings. Rosa is not well, and they are leaving early tomorrow to return to Hawaii for her surgery. I just returned from having dinner with them, Ehren’s civilian lawyer (Eric Sietz) and his military lawyer —- as well as a few other Watada friends.

I have seen Ehren briefly a few times during breaks in the trial proceedings in the hallway, mens room, etc. Even though he is not in custody yet, the fact that I was witnessed passing him the signed card from RCP&J on the army base caused me to be taken out of the room where we watch the proceedings for questioning, etc. It was resolved with a warning and “cease and desist” order to me.

Also, while the press was filming and interviewing Ann Wright and I Monday at the start of the proceedings on the base (in front of the Court Martial building) about the case and asking us questions about the proceedings during breaks, an end was put to that today. While we are still in the same room (press on one side and public and/or supporters on the other) the press had a meeting with base officials this morning where they were told not to do any recorded interviews with Ann or I or any other “anti-war activists” and to not even socialize or eat lunch with us on the base, etc. Nonetheless, one persistent reporter (from Fox no less) got permission to interview me with no
camera for the radio only “as a lawyer only” (not as an activist about anti-war issues) and confined to “legal questions” about what was happening in the case.

When security closed in, she was able to convince them she had permission from the top, etc. — and she somehow had gotten permission for this strange exception.

We have concluded two days of the court martial. Monday morning the judge denied a motion to reconsider his pretrial ruling that the “Nuremberg defense” can not be raised to question the legality of the order to deploy that Ehren refused. On that issue the panel (jury) will pretty much be told it must convict. Ehren does not contest that he refused to deploy (it among some other facts about his actions and public statements, etc. has been stipulated into evidence), and the judge says the only relevant issue about that is did he or didn’t he deploy. Ehren is facing two other counts for conduct unbecoming an officer, etc. for his public statements about the war and his refusal to obey an illegal order even though he made them after consultation with the military, off
base, off duty and out of uniform. Ehren’s lawyer (Eric Seitz) wanted to have law professors, a former UN official, a former CIA officer and the like testify about the legal of the war, manipulation of intelligence, public sentiment, etc. in order to show the “reasonableness of the statements attributed to him (Ehren)”. The judge ruled none of them could testify. Another expert in military law and the permissible limits on dissent
within the military, who had taught 7 years at West Point, also was going to be confined in his testimony to the extent that the defense may not call him at all.

Monday afternoon the members of the panel (jury) were questioned and picked. The defense was able to exclude the 3 I would have challenged. Probably got the best jury available from the panel offered. Although the judge may restrict them severely on what they can decide about guilt or innocence on the counts, the jury may be helpful on sentencing.

Today (Tuesday) opening statements were made, and the government presented its case. The stipulation of agreed facts was put in evidence, videos of Ehren’s June 2006 and August 12th statements were played for the panel, and the government presented its 3 witnesses (down from an original 11). Not that it will matter, but the governments case was inadequate on the “conduct unbecoming charges”. Ehren’s commanders testified that Ehren basically followed procedures within the military for 6 months seeking a resolution before going public at the last moment according to Ehren to forestall being forcibly put on a plane to Iraq as apparently has happened to other dissenters in the past). While the commanders did not like his public statements criticizing the war, they admitted he had even discussed the appropriate guidelines for making them with the military — including going to its Public Affairs Office when reffered to it for guidance. They also testified that his statements and conduct did not have a negative impact on his unit, etc. The government’s witness did not help it make a case. Even in relation to the refusal to deploy issue where the judge has ruled out any determination as to the legality of the order, each of the government’s witnessed admitted that a soldier is obligated to to refuse an order he sees as illegal and would not be expected to act contrary to their conscience, etc. The jury must wonder why no
determination of the legality of the order is permitted with everyone apparently agreeing that one must refuse an illegal order. Again, this may at least help on sentencing — even if the judge basically tells the panel it has nothing to decide on that issue and must convict.

Tomorrow (Wednesday) the defense will present its case (Ehren and one other character witness only), and probably the judges charge to the jury and closing statements may be made. The verdict may even come tomorrow with sentencing on Thursday.

David Mitchell

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