A Duty to Disobey: Lt. Watada Challenges the Legality of the War in Iraq

Daniel Ellsberg and Ehren Watada at Citizens Hearing on the Legality of US Actions In Iraq, January 20, 2007, Tacoma Washington. Photo: Lori Hurlebaus/Courage to Resist

On June 22, 2006, Lt. Ehren Watada became the first commissioned US military officer to publicly refuse deployment to the Iraq war. Watada's powerful repudiation of what he concluded was an illegal and immoral war has made him a hero to the peace movement and a target of the military.

While not the first GI to question or resist the US war in Iraq, Watada's unwavering defense -- that as a military officer he was fulfilling his duty to disobey unlawful orders -- has raised the stakes and put both the war and the Bush administration on trial. Coming at a time when the tide of public opinion in the US has dramatically turned against the war, the articulate and principled Watada must be seen as a formidable threat to the military and the administration.

Watada's Background

Originally from Honolulu, the 28-year- old Watada has been described by family and friends as a "born leader." After earning a degree in Finance at Hawaii Pacific University in 2003, Watada enlisted as an officer candidate because he "felt a strong pull of patriotism and duty, and a willingness to serve" his country. At the time, he believed that Iraq had weapons of mass destruction and was responsible for the attacks of September 11, 2001.

After a tour in Korea, in 2005 Watada was assigned to the 3rd Stryker Brigade in Ft. Lewis, Washington. In preparation for deployment to Iraq, he absorbed as much information as he could in order to understand the region and the war into which he would be leading his troops.

He became gravely concerned and disillusioned when he learned that the Bush administration had manipulated intelligence and lied to the American people and the world to justify launching its war with Iraq.

After exhaustive study and much soul searching, Watada concluded that the war was illegal and that if he obeyed orders to fight in an illegal war, then he too would be committing an illegal act. While he is not a pacifist, Watada felt that he had no choice but to resign his commission. On January 2006, Watada submitted a letter of resignation to his battalion commander, but it was rejected.

As his military superiors recognized, Watada "likes challenges and moves toward the fight." On June 7, 2006, in a church near Ft. Lewis, Washington, Watada announced that he would not comply with orders to deploy to Iraq. Supporters, including his parents and his attorney, held a concurrent press conference in Honolulu. In his initial pledge of resistance, Watada said, "It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong, but a horrible breach of American law."

On June 22, Watada refused to board the flight bound for Iraq with his unit. The Army began an investigation, and on July 5, 2006 filed charges against Watada for refusing to deploy and for statements he made to the media.

The charges included one count of "missing [a troop] movement," two counts of "contempt toward officials," and three counts of "conduct unbecoming an officer and a gentleman." In the latter five counts, Watada was accused, effectively, of telling the truth about Bush's lies.

Prosecuted for Exercising Free Speech

Undeterred, in August 2006 Watada delivered a momentous speech to the Veterans for Peace (VFP) convention in Seattle. Flanked by more than 50 members of Iraq Veterans Against the War, he said:

"Today, I speak with you about a radical idea. It is one born from the very concept of the American soldier or service member. It became instrumental in ending the Vietnam War -- but it has been long since forgotten. The idea is this: that to stop an illegal and unjust war, the soldiers can choose to stop fighting it."

Perhaps sensing that Watada's "radical idea" was indeed spreading, the Army retaliated on September 15, 2006 by filing an additional charge of "conduct unbecoming an officer and a gentleman" for statements he made at the VFP convention. This additional charge raised the maximum penalty for Watada to six years in prison.

On January 15, 2007, Judge Head denied the defense's pre-trial motion to allow Watada to question the legality of the war. He also denied the motion to dismiss charges of "conduct unbecoming an officer" based on Watada's free speech rights. Exasperated, Watada's civilian attorney, Eric Seitz, said, "We have been stripped of every defense. This is a disciplinary system, not a justice system. Otherwise we would have been entitled to defend ourselves."

The political nature of Watada's case, his indictment of the administration and its policies, and the military's intention to make an example of Watada, underscore why it is important to wage this case in the political arena.

Ehren, Jeff, and Rosa Watada.
Photo: Jeff Paterson

Watada's family has been the backbone of his support campaign, with mother Carolyn Ho, father Bob Watada, and stepmother Rosa Sakanishi working tirelessly to build support for Watada in concert with the peace movement. On January 27, 2007, Bob Watada spoke to the throng of marchers at the anti-war mobilization in Washington, DC.

In another troubling attack on the First Amendment, the Army subpoenaed three journalists who reported on Watada's case. Two of the reporters, backed by journalist groups and First Amendment advocates, announced that they would refuse to testify.

According to Dahr Jamail, one of those journalists, the case is significant for two main reasons. First, if Watada is convicted for criticizing the President, it sends a message to other war resisters that they will be penalized for their speech even more harshly than for their decision not to deploy to Iraq. Second, the subpoenas send a chilling message to journalists who wish to cover resisters' stories: you may be used as an arm of the prosecution to testify against your sources.

Asian-American War Resistance: Building on a Contested Legacy

Because Watada is a person of Chinese-American and Japanese-American ancestry from Hawai'i, Watada's case also generated intense interest and controversy in Asian-American communities both in Hawai'i and on the continent. Japanese-Americans (JAs) in Hawai'i in particular have had a troubled and complex historical relationship with the US military.

In 1893, US troops invaded the Kingdom of Hawai'i in violation of treaties and international law to help a small gang of white settlers depose Hawai'i's queen. During the Spanish-American War of 1898, the US expanded its military occupation of the Hawaiian Islands in its quest for empire. This history is not lost on Watada, who at a recent meeting with Hawaiian sovereignty activists addressed the parallels between the US invasions of Hawai'i and Iraq.

In the decades leading up to World War II, the US military was the protector of a white oligarchy in Hawai'i and an agent of racism against people of Japanese ancestry. Fearing an uprising by Hawai'i's large and well-organized Japanese community, white ruling elites and military leaders devised contingency plans for military rule in Hawai'i and concentration camps for persons of Japanese ancestry. These plans were unleashed after Japan's attack on Pearl Harbor with the imposition of martial law for three years and wholesale repression against the Japanese community. Leaders of Hawai'i's JA community were summarily rounded up and shipped to concentration camps on the continent, while military authorities shut down Japanese language schools, temples, and newspapers. The recent trend in the US toward repression and racism against Muslims and persons of Arab and South Asian descent is eerily reminiscent of the anti-Japanese climate of World War II.

World War II also presented an opportunity for US authorities to conduct a grand social experiment on the JA community -- the accelerated Americanization of the Nisei (second generation Japanese settlers) through forced relocation, inducements to patriotism, and outright coercion. In the face of such intense repression, and primed by years of compulsory patriotic education and military instruction, many Nisei naturally saw military service as the only way to prove their loyalty to the United States and thereby gain access to the full rights and benefits of American citizenship.

The Japanese-American World War II veterans are rightfully honored for their courage and sacrifice, but their story has also been used prescriptively to promote the myth of a 'model minority' whose key to success was their unquestioning loyalty and obedience. This myth has been used to punish dissent, echoing the Japanese folk saying: "The nail that sticks up gets hammered down." Those JAs who refused internment, answered "no" to World War II's trick loyalty questionnaire, or resisted the draft while their families were held in concentration camps, were not only harshly punished by the government, but also branded "troublemakers" and ostracized by a Japanese-American community fearful of reprisal for any signs of disloyalty.

Lt. Watada's act of resistance has exposed these deep contradictions and lingering wounds in the Japanese-American community, stimulating debate, and hopefully, eventual healing. Although some JA veterans have vocally attacked Watada for, in their eyes, bringing disgrace and shame on the JA community, overall, Asian-Americans have rallied to support his courageous stand. Regrettably, the national Japanese American Citizens League (JACL), the oldest and largest JA civil rights organization (though also one with a checkered past of suppressing JA resistance), has bowed to pressure and not endorsed Watada. However, local JACL chapters, including the Honolulu Chapter, have broken with the national organization and actively supported him. In Honolulu, the San Francisco Bay Area, and Los Angeles, Asian-American groups have organized some of the strongest actions in support of Watada.

Organizers in Asian-American communities have built this base of support by reclaiming and honoring the historical JA acts of resistance and supporting JA vets who have spoken out against the war. They also organized younger generations of Asian-Americans who were not directly affected by the traumatic experiences and intra-community conflicts caused by racist World War II policies.

The Mistrial

On the eve of Watada's trial, the Army dropped two of the "conduct unbecoming an officer" charges in exchange for Watada stipulating to certain facts. This reduced his maximum possible sentence to four years, and resulted in the withdrawal of the subpoenas against the journalists.

Peace groups in the Tacoma area and elsewhere organized citizens' tribunals on the legality and morality of the war. The opening days of Watada's court-martial were marked by spirited demonstrations across the country.

His court-martial commenced February 5, 2007 and ended abruptly two days later in a mistrial over a dispute with the judge over the meaning of what Watada admitted to in the "Stipulation of Facts." Ironically, both the defense and prosecution agreed that Watada had stipulated to refusing to deploy and to making certain statements critical of the war, but that his signing the agreement was not an admission of guilt.

The "missing movement" charge has two elements: (1) Did Watada go to Iraq as ordered? and (2) Did he have a duty to comply with the order? Watada admitted that he did not deploy but disputes that he had a duty to comply with the order on the grounds that the war, and therefore the order to deploy, were illegal. However, the judge insisted that the admission of facts regarding element number one amounted to a confession of guilt. Judge Head declared a mistrial when the issue could not be resolved.

The judge scheduled a retrial on March 19. Because the judge threw out the pre-trial stipulated agreement, in the retrial the prosecution could theoretically pursue all of its original charges, which means Watada could again face up to six years in prison for refusing to deploy and for speaking out against the war.

However, the mistrial may prove to be a fortunate turn of events for Watada. Because a jury had been impaneled and the trial begun, and because Eric Seitz, Watada's lawyer, objected to the declaration of a mistrial, the prohibition on double-jeopardy may apply, and Army prosecutors may be barred from trying Watada a second time. On the other hand, double jeopardy may only apply if Seitz can demonstrate that Judge Head abused his discretion.

To End the War, Support Resisters

The military court has signaled its intention to punish Watada harshly for his offense of speaking the truth and acting on his conscience. The outcome of his trial could hinge on the weight of public opinion and political pressure that can be brought to bear on the command and the administration.

During Ehren Watada's speech to the Veterans for Peace convention, he challenged all of us to support resisters in order to stop the war:

"I tell this to you because you must know that to stop this war, for the soldiers to stop fighting it, they must have the unconditional support of the people. I have seen this support with my own eyes. For me it was a leap of faith. For other soldiers, they do not have that luxury. They must know it and you must show it to them. Convince them that no matter how long they sit in prison, no matter how long this country takes to right itself, their families will have a roof over their heads, food in their stomachs, opportunities, and education. This is a daunting task. It requires the sacrifice of all of us.... How do you support the troops but not the war? By supporting those who can truly stop it. Let them know that resistance to participating in an illegal war is not futile and not without a future."

The US government wants to put Ehren Watada in jail for making that speech. It is up to us to vindicate Watada's faith, and promote Watada's strategy for ending the war, by providing him and the rest of the resisters with the support they need.

Visit the website, www.thankyoult.org for news, organizing kits, action alerts, and to make donations in support of Watada. Also please support the growing GI anti-war movement: the Appeal for Redress (Active duty military personnel signing a petition against the war, www.appealforreddress.org); the Courage to Resist (supporting the cases of GI resisters, www.couragetoresist.org); Veterans for Peace (www.veteransforpeace.org); Iraq Veterans Against the War (www.ivaw.org); and the GI Rights Hotline (800-394-9544, www.girights.org).