Watada Can't Be Retried on Three Counts

News Release: 
Monday, January 11, 2010

Update - September 25, 2009: Lt. Watada's attorney, Ken Kagan, announced that Watada will be granted a discharge on Oct. 2 "under other-than-honorable conditions," thus ending the Army's attempt to court-martial the officer.

The government has withdrawn its appeal of the district court ruling and will not pursue court martial proceedings against Lt. Watada for refusal to report. Still pending is a government decision on whether to retry him on two counts alleging conduct unbecoming an officer.

In October 2008, U.S. District Court Judge Benjamin Settle had ruled that to retry Lt. Watada for court martial on three of the counts would violate his constitutional protect against being tried twice for the same crime; included was the count of attending a press conference. The judge also ruled that it would be up to a military court to determine whether Lt. Watada could be retried on two other counts involving alleged conduct unbecoming an officer.

On Feb. 7, 2007, military judge Lt. Col. John Head had declared a mistrial in Lt. Watada's court martial. The judge said there was a disagreement about the legal implications of a stipulation that Watada had signed before the court martial began. When the military announced its intention to convene a new court martial, Lt. Watada filed a lawsuit in federal court to halt any further proceedings on grounds of double jeopardy.

On November 8, 2007, Judge Settle granted a preliminary injunction, preventing the military from convening a second court martial until further notice. His opinion stated that Lt. Watada is likely to succeed on the merits of his federal suit.



ACLU Defends Lt. Watada's Right to Free Speech

August 15, 2006

In a military justice case that has drawn wide attention, the American Civil Liberties Union of Washington is backing the free speech rights of a soldier facing court martial for refusing to serve in the war in Iraq. The ACLU today submitted a friend-of-the-court brief contending that Lt. Ehren Watada should not be punished for his public statements expressing legal and moral objections to the war in Iraq.

The military is holding a hearing on Aug. 17 to determine whether to go forward with court martial proceedings against Watada. The ACLU takes no position on his challenge to the lawfulness of the orders to report for duty in Iraq.

“Soldiers should not be court-martialed for explaining their views on important political issues when doing so does not adversely affect military functioning. Lt. Watada was exercising his free speech rights as a citizen in a democratic society,” said Kathleen Taylor, Executive Director of the ACLU of Washington.

Ehren Watada enlisted in the army after finishing college because he wanted to aid his country after the Sept. 11 terrorist attacks. He has been deployed in Korea, and has received good reviews for his service. Lt. Watada became convinced that the war in Iraq is unlawful and that he has a duty as an officer not to participate in it. When he learned that his unit was to be deployed to Iraq, he made requests to be transferred elsewhere, but they were denied. In early June, he discussed his views on the war publicly, holding a press conference and speaking to individual reporters. On June 22, he refused to board the bus for his deployment to Iraq.

In addition to charges against Lt. Watada for refusal to report to duty, the military is seeking to penalize Lt. Watada for statements he made to reporters expressing his objections to the United States’ involvement in the war in Iraq (see end of this release). He is being charged with violating two articles of the Uniform Code of Military Justice: Article 88, which prohibits use of “contemptuous words” against the President and other top governmental officials; and Article 133, which prohibits “conduct unbecoming an officer” – that is, behavior which dishonors or disgraces an officer or “seriously compromises the officer’s character as a gentleman.”

The purpose of Lt. Watada’s public remarks was to explain the motivations for his actions. While one may disagree with Lt. Watada’s opinions on the war’s legality, his expression of those opinions reflected his deeply felt beliefs and showed a seriousness of purpose and high moral character. In speaking his mind, Lt. Watada expressed sharp disagreement with government policies and the actions of the President, but he did not use contemptuous language and did not behave in a dishonorable manner.


The following are the statements for which Lt. Watada is facing court martial.

Statement 1: “I could never conceive of our leader betraying the trust we had in him … As I read about the level of deception the Bush administration used to initiate and process this war, I was shocked. I became ashamed of wearing the uniform. How can we wear something with such a time-honored tradition, knowing we waged war based on a misrepresentation and lies? It was a betrayal of the trust of the American people. And these lies were a betrayal of the trust of the military and the Soldiers … But I felt there was nothing to be done, and this administration was just continually violating the law to serve their purpose, and there was nothing to stop them … Realizing the President is taking us into a war that he misled us about has broken that bond of trust that we had. If the President can betray my trust, it’s time for me to evaluate what he’s telling me to do.”

Statement 2: “I was shocked and at the same time ashamed that Bush had planned to invade Iraq before the 9/11 attacks. How could I wear this [honorable] uniform now knowing we invaded a country for a lie?”

Statement 3: “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 … As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order … The wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it’s a contradiction to the Army’s own law of land warfare. My participation would make me party to war crimes.”

The Army charges that the Statements 1 and 2 violated Art. 88 of the Uniform Code of Military Justice (“Contempt Toward Officials”) and that all three statements violated Art. 133 (“Conduct Unbecoming an Officer and Gentleman”).

ACLU-WA Staff Attorney Aaron Caplan wrote the amicus brief.

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