* Update on Lt. Watada's case (03 Oct 2007)
Appeals court stays new court-martial for US Army officer opposing Iraq war
(19 May 2007)
* Mistrial could be end of Watada case (08 Feb 2007)
* Soldier's lawyers seek OK to put Iraq war on trial (04 Jan 2006)
* Army Seeks Journalist Testimony in Political Speech Prosecution (02 Jan 2007)
* Putting the war on trial (14 Nov 2006)
* Putting the Iraq War on Trial (Time, 18 Aug 2006)
* Reporter's Transcript of Audio Recording of Proceedings (17 Aug 2006), with Prof. Francis A. Boyle
by JEREMY BRECHER & BRENDAN SMITH - http://www.thenation.com/doc/20060626/brecherwebvideo [June 26, 2006]
In a remarkable protest from inside the ranks of the military, First Lieut. Ehren Watada has become the Army's first commissioned officer to publicly refuse orders to fight in Iraq on grounds that the war is illegal. The 28-year-old announced his decision not to obey orders to deploy to Iraq in a video press conference June 7, saying, "My participation would make me party to war crimes."
An artillery officer stationed at Fort Lewis, Washington, Watada wore a business suit rather than his military uniform when making his statement. "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," he said. "Although I have tried to resign out of protest, I am forced to participate in a war that is manifestly illegal. 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."
A native of Hawaii who enlisted in the Army after graduating from college in 2003, Watada differs from other military personnel who have sought conscientious-objector status to avoid deployment to Iraq.
Watada told Truthout's Sarah Olson that at first he gave the Bush Administration the benefit of the doubt as it built the case for war. But when he discovered he was being sent to Iraq, he began reading everything he could, such as James Bamford's Pretext for War. He concluded that the war was based on false pretenses, ranging from the nonexistent weapons of mass destruction to the claim that Saddam had ties to Al Qaeda and 9/11 to the idea that the United States is in Iraq to promote democracy.
His investigation led him to question the very legality of the war. In an interview with Democracy Now!, he explained that as he read articles by experts on international and constitutional law, reports from governmental and nongovernmental agencies, revelations from independent journalists, writings by the Iraqi people and the words of soldiers coming home, "I came to the conclusion that the war and what we're doing over there is illegal."
First, he concluded that the war violates the Constitution and War Powers Act, which, he said, "limits the President in his role as commander in chief from using the armed forces in any way he sees fit." Watada also concluded that "my moral and legal obligation is to the Constitution and not to those who would issue unlawful orders."
Second, he claims the war is illegal under international law. He discovered that "the UN Charter, the Geneva Convention and the Nuremberg principles all bar wars of aggression." The Constitution makes such treaties part of American law as well.
These are not wild legal claims. Watada's conclusions are supported by mountains of evidence and experts, including the judgment of UN Secretary General Kofi Annan, who in 2004 declared that the US invasion was "not in conformity with the UN Charter, and from our point of view...was illegal."
Watada said he came to recognize that the military conduct of the occupation is also illegal: "If you look at the Army Field Manual, 27-10, which governs the laws of land warfare, it states certain responsibilities for the occupying power. As the occupying power, we have failed to follow a lot of those regulations." He told ABC News that the "wholesale slaughter and mistreatment of the Iraqi people" is "a contradiction to the Army's own law of land warfare."
While ongoing media coverage of the protest debates whether Watada's action is one of cowardice or conscience, so far the seriousness of his legal claims have been largely ignored. Watada's position is different from that of conscientious objectors, who oppose all wars. "I'm not just against bearing arms or fighting people. I am against an unjustified war," he said.
Can such a claim be heard in a military court? In 2004, Petty Officer Pablo Paredes refused to board his Iraq-bound ship in San Diego Harbor, claiming to be a conscientious objector. At his court-martial, Paredes testified that he was convinced that the Iraq War was illegal. National Lawyers Guild president-elect Marjorie Cohn presented evidence to support his claim. The military judge, Lieut. Cmdr. Robert Klant, accepted Paredes's war-crimes defense and refused to send him to jail. The government prosecutor's case was so weak that Cohn, in a report published on Truthout.org, noted that Klant declared ironically, "I believe the government has just successfully proved that any seaman recruit has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
One of Germany's highest courts heard a case last year regarding a German soldier who refused to participate in military activities as part of the US-led coalition in Iraq. The Federal Administrative Court issued a long and detailed decision in his favor, saying, "There were and still are serious legal objections to the war against Iraq...relating to the UN Charter's prohibition of the use of violence and other provisions of international law."
Watada's case comes amid a growing questioning of the Iraq War in all levels of the military. A February Zogby poll found that 72 percent of American troops serving in Iraq think the United States should leave the country within the next year, and more than one in four say the United States should leave immediately. While the "generals' revolt" against Defense Secretary Donald Rumsfeld didn't challenge the legality of the war per se, many retired military leaders have strongly condemned the use of torture and other violations of international and military law.
According to USA Today, at least 8,000 service members have deserted since the Iraq War began. The Guardian reports that there are an estimated 400 Iraq War deserters in Canada, of whom at least twenty have applied for asylum. An Army spokesman says that ten other servicemen besides Watada have refused to go to Iraq.
Resistance in the military played a critical role in ending the French war in Algeria, the Israeli occupation of Lebanon and the American war in Vietnam. Such resistance not only undermines the capacity of a government to conduct wars; it also challenges the moral claims that are used to justify them and inspires others to examine their own responsibilities.
Watada's action comes as the issue of US war crimes in Iraq is inexorably creeping into the public spotlight. Senator John Warner has promised to hold hearings on the alleged Haditha massacre. The UN Committee Against Torture has declared that the United States is engaging in illegal torture at Guantánamo and elsewhere. An investigation by the European Union has found overwhelming evidence of the rendition of prisoners to other countries for torture.
Watada's highly publicized stand will no doubt lead others to ask what they are doing to halt such crimes. Unless the Army assigns him somewhere besides Iraq or permits him to resign his commission, he will now face court-martial for refusing to serve as ordered and possibly years in prison.
According to an ominous statement released by the Army commanders at Fort Lewis in response to Watada's press conference: "For a commissioned officer to publicly declare an apparent intent to violate military law by refusing to obey orders is a serious matter and could subject him to adverse action."
Watada's decision to hold a press conference and post his statements online puts him at serious risk. In theory, if the Army construes his public statements as an attempt to encourage other soldiers to resist, he could be charged with mutiny under Article 94 of the Uniform Code of Military Justice, which considers those who act "with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny." The conservative group Military Families Voice of Victory is already "demanding the Army prosecute Lt. Watada to the fullest extent under the Uniform Code of Military Justice."
Watada told Truthout's Olson that when he started to question the war, he he felt, like so many in and out of the military, that "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." But he realized that there was something he personally could do: "It is my duty not to follow unlawful orders and not to participate in things I find morally reprehensible."
"The one God-given freedom and right that we really have is freedom of choice," Watada says, echoing the profound message of Mohandas Gandhi. "I just want to tell everybody, especially people who doubt the war, that you do have that one freedom. And that's something that they can never take away. Yes, they will imprison you. They'll throw the book at you. They'll try to make an example out of you, but you do have that choice."
Even facing prison time, Watada is firm. "When you are looking your children in the eye in the future, or when you are at the end of your life, you want to look back on your life and know that at a very important moment, when I had the opportunity to make the right decisions, I did so, even knowing there were negative consequences."
Watada's recognition of his duty provides a challenge not only to those in the military but to all Americans: "We all have a duty as American citizens for civil disobedience, and to do anything we can within the law to stop an illegal war."
Statement on Behalf of Lt. Ehren Watada
By Francis A. Boyle
Professor of International Law
7 June 2006
One generation ago the peoples of the world asked themselves: Where were the "good" Germans? Well, there were some good Germans. The Lutheran theologian and pastor Dietrich Bonhoeffer was the foremost exemplar of someone who led a life of principled opposition to the Nazi-terror state even unto death.
Today the peoples of the world are likewise asking themselves: Where are the "good" Americans? Well, there are some good Americans. They are getting prosecuted for protesting against illegal U.S. military interventions and war crimes around the world. First Lieutenant Ehren Watada is America's equivalent to Dietrich Bonhoeffer, Vaclav Havel, Andrei Sakharov, Wei Jingsheng, Aung San Suu Kyi, and others. He is the archetypal American Hero whom we should be bringing into our schools and teaching our children to emulate, not those wholesale purveyors of gratuitous violence and bloodshed adulated by the U.S. government, America's power elite, the mainstream corporate news media, and its interlocked entertainment industry.
In international legal terms, the Bush Jr. administration itself should now be viewed as constituting an ongoing criminal conspiracy under international criminal law in violation of the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles, because of its formulation and undertaking of wars of aggression, crimes against peace, crimes against humanity, and war crimes that are legally akin to those perpetrated by the former Nazi regime in Germany. As a consequence, American citizens and soldiers such as Lieutenant Watada possess the basic right under international law and the United States domestic law, including the U.S. Constitution, to engage in acts of civil resistance in order to prevent, impede, thwart, or terminate ongoing criminal
activities perpetrated by U.S. government officials in their conduct of foreign affairs policies and military operations purported to relate to defense and counter-terrorism. If not so restrained, the Bush Jr. administration could very well precipitate a Third World War.
When he refused to deploy to Iraq in June, Army Lt. Ehren Watada said he was following his conscience and upholding his duty not to obey illegal orders. But that didn't impress military officials, who promptly charged him with violating Army rules and sent him on a path toward a likely court-martial.
In doing so, they set up an unusual collision between a man who is believed to be the first officer to refuse duty in Iraq and a military justice system that is now effectively being asked to rule on the war's legality.
In a packed hearing room on this Army base south of Seattle Thursday, lawyers for Lt. Watada used the opportunity to put the war itself on trial, trying to prove he was right to see the war as "manifestly illegal," and as a result, to refuse to participate. "A soldier has an obligation to disobey illegal orders," said Francis Boyle, a Harvard-trained professor of international law who testified on behalf of Lt. Watada and whose mentor wrote the Army's field manual for land warfare. "Under the circumstances of this war, if he had deployed, he would have been facilitating a Nuremberg crime against peace."
Boyle, along with a former United Nations Undersecretary-General and a retired army colonel, argued that the U.S. decision to attack Iraq in 2003 without U.N. authorization made the war illegal from the beginning. He went further, arguing that the failure of the Bush Administration to find either weapons of mass destruction or a provable link between Iraq and the Sept. 11 attacks showed that Congress was persuaded "by means of fraud" when it voted to authorize the war.
Lt. Watada, 28, is from Honolulu and was part of a Stryker unit that deployed to Iraq on June 22 — without him. He joined the Army after Sept. 11 and initially served in South Korea, where he received stellar marks from his superiors. As recently as last summer he was willing to go to Iraq. But the more he learned about the war, the more doubts he had, according to his public statements.
In January, after he became convinced that the war was illegal, he tried to resign rather than go to Iraq, but the Army wouldn't let him do so. As a compromise, he asked to be sent instead to Afghanistan, a war he supports. His request was not granted.
At the hearing yesterday — a precursor to a court-martial known as an ?Article 32 hearing? — Watada sat calmly in his fatigues, gave no statement, and during breaks answered no questions from the many reporters gathered to watch the proceedings. However, military prosecutors played several clips of Lt. Watada speaking in public about his reasons for not deploying.
In one clip, from a Veterans for Peace convention held last weekend in Seattle, Watada explained that he is trying to put forward a "radical idea" first born during the Vietnam War. "The idea is this," he said. "That to stop an illegal and unjust war, the soldiers and service members can choose to stop fighting it."
That, prosecutors said, is exactly what they most fear. To give credence to Lt. Watada's argument, they said, would create a breakdown in military order and discipline. "It's just dangerous in our Army to allow that to happen," said Capt. Dan Kuecker, one of the prosecutors. Whether the war is legal, he said, "is not a decision for a lieutenant to make — it's a decision for politicians and legislators." Watada's behavior, Capt. Kuecker told the hearing, "is dishonorable and it is disgraceful."
Lt. Col. Mark Keith, who presided over the proceeding, is expected to decide within the next few days whether to recommend a court-martial for Lt. Watada. If one takes place, and Watada is convicted, he could face up to seven years in prison.
in the case of United States vs. Lt. Ehren K. Watada,
Headquarters and Headquarters Company, I Corps, Building 2027B, Fort Lewis, WA 98433 - 17 August 2006, 9:08 a.m.
Reporter's Transcript of Audio Recording of Proceedings
LTC Mark Keith Investigating Officer
CPT Daniel Kuecker Trial Counsel
CPT Scott Van Sweringen Assistant Trial Counsel
CPT Mark Kim Assistant Defense Counsel
Mr. Eric Seitz Defense Counsel
SSG Richard M. Goldstein Reporter
1LT Ehren K. Watada Accused
LT. COLONEL KEITH: Okay. Mr. Seitz, the trial counselor has completed their witness list and has shown us their video footage for my consideration. Are you prepared at this time to call your first witness?
MR. SEITZ: Yes. At this time, we'll call Professor Francis Boyle.
. . . .
Q. Prior to today, have you ever testified in any other judicial proceedings?
A. Well, in terms of military proceedings, the court-martial proceedings of
Marine Corps Corporal Jeff Paterson; then Captain Dr. Yolanda Huet-Vaughn, the
Army; Captain Lawrence Rockwood, 10th Mountain Division; Staff Sergeant Camillo
Mejia. And then I testified many times in state and federal court, and also in foreign countries.
Q. And have you on those occasions been qualified as an expert witness?
A. Yes. In international law and especially the laws of war. The Field Manual 27-10, the man who drafted this for the United States Army, Professor Richard R. Baxter, was my teacher on the laws of war at Harvard Law School. And I was his top student while I was there.
. . . .
Q. Are you knowledgeable about the United States' obligations under international law?
A. Yes. I've studied and written about them repeatedly during the last 28 years as a professor.
Q. And in what manner does international law determine how and when the United States may wage war against another country?
A. Well, Mr. Seitz, it's not just international law, it's the U.S. Army Field Manual 27-10. Professor Baxter, who drafted this for the Army, incorporated international law directly into 27-10. And all the rules are here. I'm not going to go through them all.
But, basically, as drafted by Professor Baxter, 27-10 includes the Hague Conventions of 1899 and 1907, the Kellogg-Briand Peace Pact of 1928, the United Nations Charter, the Nuremberg Charter, Judgment and Principles, as well as the Tokyo War Crimes Tribunals. Again, this was published by the Army as of 1956. It was supplemented once. But it is still valid and binding on troops in the field, including Lieutenant Watada.
Q. What kinds of requirements must be met before the United States can enter into a war?
A. Well, again, the Law of Land Warfare does have a fairly extensive section on it. But there would be two basic requirements, to boil it down in a nutshell and not get into all of it, relevant here.
One, warfare would have to be authorized by the United States Congress, pursuant to the War Powers Clause of the Constitution.
And then, secondly, unless the United States itself is attacked militarily, or its troops, it would have to be authorized by the United Nations Security Council.
Otherwise, aggressive warfare would be a Nuremberg crime against peace. And that is stated quite clearly in the Law of Land Warfare. . . . So what Professor Baxter did in the Law of Land Warfare for the Army, he simply incorporated the Nuremberg Charter and Principles directly into the Law of Land Warfare 27-10, including its notion of a crime against peace. And you can read it right in there. It is clearly listed as an international crime.
Q. Did the United States comply with the appropriate procedures to obtain authorization before it invaded Iraq in 2003?
CAPTAIN KUECKER: Colonel Keith, just for the record, at this point, I don't think any of this testimony would be relevant to the actual charges against Lieutenant Watada. It's a nonjusticiable question, the question of whether to employ forces, based on a ruling that the witness was a witness to in Huet-Vaughn. The Court clearly said that it's a political question whether to employ troops and is nonjusticiable in this forum.
Also, being ordered to go to Iraq in the year 2006 is a separate issue as opposed to going after Iraq is a sovereign country, is a separate issue as opposed to what did or did not happen in 2003.
. . . .
MR. SEITZ: We can certainly argue the relevance if you want to. I understand there's an objection being made. Given the nature of these charges, particularly the missing movement charge, an order was given to a soldier to engage in some conduct, to participate in an action which could subject him to sanctions under any of the authorities which we've provided you exhibits of or to which Professor Boyle has alluded. Then that individual has not only the right, but an obligation to question those orders and to determine for himself or herself whether, in carrying out those orders, he or she would be compelled to do something which is a violation of law, not just international law, but international law as incorporated, as Professor Boyle has indicated, into domestic law and into rules of engagement for the United States Army.
So it isn't as simple as saying that just because you're given an order, that you have to abide by it. There is an obligation which is legally recognized at various different levels -- and we've given you some authorities for that -- which requires soldiers to make that determination for themselves. And that really is the relevance.
In addition, in this case, we have a number of statements which you've seen which are attributed to Lieutenant Watada which are alleged to be contemptuous or disloyal or disrespectful. It's our contention and certainly will be our contention at trial that those statements, if true, and if accurate commentaries as to what took place with respect to this particular war, cannot be punishable. They are absolutely protected. And they constitute political commentary, which is absolutely protected, because, in fact, among other reasons, they are true. And so, for that purpose, we seek to offer evidence to demonstrate that what Lieutenant Watada had to say about the war in Iraq was not contemptuous, it was not disloyal. It was, in fact, an accurate commentary on the history of how this war began and how it's evolved.
And to say that we're in a different position in 2006 than we were in 2003 is also an interesting issue we'd be happy to join at trial with counsel. In our view, the situation is far more serious, worse, knowing now what we know today than what we knew back in 2003.
. . . .
LT. COLONEL KEITH: Okay. Continue, please.
BY MR. SEITZ:
Q. So, Professor Boyle, my last question to you was, basically, in connection with the United States invasion of Iraq in 2003, did the United States go through the proper processes and meet its obligations before it engaged in that kind of military action?
A. Unfortunately, the Bush administration did not. There was no authorization for the United Nations Security Council for the United States to wage war against Iraq. And that made it a crime against peace, which is in paragraph 498 of the Field Manual.
"Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment. Such offenses in connection with war comprise" a -- "crimes against peace."
Professor Baxter incorporated that directly out of the Nuremberg Charter, Judgment and Principles.
Second, with respect to Congressional authorization, there was a War Powers Resolution adopted by Congress pursuant to the War Powers Resolution. But, unfortunately, the Bush administration procured that authorization from Congress by means of fraud. First, they lied to Congress that Iraq had weapons of mass destruction. And, second, they lied to Congress that Iraq had connections with the terrible tragedy of September 11th. Neither were true at the time, and this has been proven by everything in the public record since then.
This, in my opinion, as a professor that taught criminal law, constitutes a conspiracy to defraud the United States government, which is a felony.
Q. Does the fact that Congress was induced to authorize the military exercise which led to the invasion of Iraq, does that act as a substitute for obtaining consent or approval from the United Nations?
A. No. There are two sources of approval you have to get: Both the Security Council and Congress. Congress has no authority to authorize a crime against peace or war of aggression.
And here I would compare what the Bush, Junior, administration, did to the Bush, Senior, administration. The Bush, Senior, administration first obtained authorization from the Security Council, and then, second, obtained authorization from the United States Congress, to enforce that Security Council resolution.
The Bush, Junior, administration tried to get authorization from the Security Council and failed. I regret to say the President did not even follow his father's precedent.
Q. You heard a little discussion a minute ago about events that have ensued since 2003, and here we are in 2006. Do you have any opinions with respect to the conduct of the war which would raise issues pertaining to whether or not the United States is conducting that war in conformity with its obligations under international and domestic law?
A. Right. Well, under the Field Manual, the same paragraph 498, also using the same language that I won't bother to repeat, says: "Such offenses in connection with war comprise, B, crimes against humanity, and, C, war crimes." Those are the three classic Nuremberg crimes, again, which Professor Baxter directly incorporated into Field Manual 27-10.
And certainly, based on my analysis of the situation since the war started, regretfully, we have seen war crimes committed in Iraq, for example, the Abu Ghraib torture scandal, which, in my opinion, the primary responsibility for this goes to the very top of the chain of command. This was authorized certainly by the Secretary of Defense and straight on down through the top. And, yet, so far, the only soldiers to have been prosecuted are lower-level individuals. And the chain of command, from Lieutenant General Sanchez straight on up, has escaped any responsibility at all.
We also have the use of cluster bombs in civilian areas. If you were to use a cluster bomb on a tank formation or troops or something like that, in my opinion, there really is nothing illegal about that. But if you use a cluster bomb in a city with substantial civilian presence, I think that does not comply with the laws of war.
There's also the use of depleted uranium, which violates the Geneva Protocol of 1925, which is also found in the Field Manual. It's a war crime. And the depleted uranium is not only poisoning Iraqis, it is poisoning our own troops.
And this goes back, actually, to Gulf War I. There is extensive documentation on this by Major Doug Rokke, who undertook the DU investigation for the Pentagon in Gulf War I and, a very conscientious soldier, contracted Gulf War Syndrome himself.
Shock and awe to start the war -- of course, that was the Air Force, not the Army -- again, a war crime. The wanton devastation of a city, town, or village is a Nuremberg war crime.
So, there are others that we can talk about, but I think those are the four major categories I would look at. You have others: murders, rapes, et cetera. You know, it seems to me the military authorities are attempting to deal with those.
But the top of the chain of command either has authorized or has certainly not dealt with those other major crimes that I see.
Q. You have mentioned several times the Nuremberg Judgment.
How is that applicable -- How does that become enforceable in the context in which we're dealing with soldiers, and Lieutenant Watada in particular, in this period of time?
A. Yes. The United States government set up the Nuremberg Tribunal. It was our idea.
The Nuremberg Charter is an executive agreement concluded by the President in his authority as Commander in Chief of U.S. forces. You can find it in statutes at large.
The Nuremberg Judgment is reported in Federal Rules Decisions. It is a valid, binding decision that applies in U.S. federal courts. It's not a foreign decision, but it is a decision that flows from the President's authority as Commander in Chief.
And, finally, of course, Judge Baxter incorporated the principles of the Nuremberg Charter, Judgment, and Principles right here in Field Manual 27-10. He did not attempt to write a scholarly treatise or anything, but he distilled the essence of the Nuremberg Charter, Judgment, and Principles as well as the Tokyo proceedings, and put them in 27-10, which is still valid and binding in the field 50 years later, today. And it remains substantially the same except for one revision that has not changed any of the principles I'm discussing here today.
Q. And also, similarly, with respect to the Geneva conventions, which has been mentioned at various different times, how do the Geneva conventions become applicable to the factual situation in which we find ourselves in this case?
A. Yes, the four Geneva conventions of 1949, are treaties to which the Senate has given its advice and consent. They are the supreme law of the land under Article VI of the United States Constitution. And, once again, they are incorporated in haec verba, in those words precisely, right here in the Law of Land Warfare, where Judge Baxter put them, with some commentary, where necessary, where the exact words needed to be supplemented by further practice. But they are right there in the Field Manual. You can read the references and citations.
So, again, it's made very clear that all members of United States armed forces, especially the Army, is bound by the Geneva conventions.
Q. And are you aware of any recent decisions in which the United States Supreme Court has emphasized the applicability of the Geneva conventions?
A. Yes. United States versus Hamdan, that just came down this summer. As you know, the President is not a lawyer. But, unfortunately, he got very terrible, I would say criminal, legal advice from his White House Counsel, Alberto Gonzales at that time, and his Attorney General, John Ashcroft -- Gonzales is now the new Attorney General -- that the Geneva conventions did not apply to his so-called war on terrorism.
This advice that he received from these political appointees directly contradicted the advice that was given to him by the professional military lawyers, the JAG lawyers, at the highest level, who were all of the position that the Geneva conventions must be applied by United States armed forces. It also directly contradicted advice that the President was given by the professional international lawyers at the State Department that the Geneva conventions should apply.
Indeed, then Secretary of State Colin Powell, who, as you know, had been Chairman of the Joint Chiefs of Staff, sent a memo directly to the President, argued to the President that the Geneva conventions should be applied, must be applied.
Unfortunately, he listened to these political appointees, and we had the torture scandal at Guantanimo, which, due to the major general there, acting pursuant to orders of Secretary of Defense Rumsfeld, then went to Iraq to "Gitmo-ize" Iraq. And then, unfortunately, we have the torture scandal in Iraq.
It is my personal opinion that if these orders had not been given by Secretary of Defense and presumably with the approval of the President, none of this scandal would have happened.
The Army's current manual for interrogation of prisoners of war is impeccable. It was drawn up by professional JAG Corps lawyers. I have reviewed it. It's perfect. There's nothing wrong with it. And if not for these orders that were given, the Army, following standard operating procedure, would have applied the currently existing manual and none of this gross, widespread torture would have happened.
Obviously, in wartime, abuses happen, but it would have been sporadic and I think immediately repressed. But here we had wholesale torture. And that was Major General Miller, who was in Guantanimo, then went to Iraq, and with the consent of Lieutenant General Sanchez, proceeded to "Gitmo-ize," as he put it, Iraq. And that was the origin of the torture scandal in Iraq.
Torture is a grave breach of the Geneva conventions. It's a serious war crime. Moreover, the International Committee of the Red Cross that has supervisory jurisdiction over the Geneva conventions determined that the torture, since it appeared to be widespread and systematic in Guantanimo, Iraq, and, as you know, it also unfortunately, gravitated to Afghanistan, the Gitmo practices, since it was widespread and systematic, constituted a crime against humanity. When you have war crimes that are widespread or systematic, they become more serious. They become crimes against humanity.
And that, too, is found in paragraph 498 of the Field Manual, paragraph B. Such offenses in connection with war comprise crimes against humanity.
Again, Professor Baxter took that directly from the Nuremberg Charter, Judgment
LT. COLONEL KEITH: Let me interrupt you for a second. Because I'm struggling with the connection between what we've just discussed in terms of Geneva convention and Guantanimo and those war crimes that you have discussed, that you have alleged have occurred and how that relates to Lieutenant Watada and his refusal to deploy.
THE WITNESS: Colonel, let me do clarify the chain of events here.
That is, before the terrible tragedy of September 11, the Army had an interrogation manual which I had read and reviewed and was impeccable. There was no problems at all. It was drawn up by professional JAG Corps lawyers at the highest level, everything you would expect from JAG Corps lawyers, and no problems at all.
Then, acting pursuant to the advice of Alberto Gonzales and John Ashcroft, and rejecting the advice of Colin Powell and the JAG Corps lawyers, the President determined not to apply the Geneva conventions to al-Qaeda or Taliban. That decision, then, not to apply the Geneva conventions was implemented on Guantanimo under Major General Miller.
Then Secretary of Defense Rumsfeld and his deputies instructed General Miller to go to Iraq, and, as he put it, to "Gitmo-ize" Iraq, to apply the same type of abusive and violative procedures in Iraq, that were applied in Guantanimo.
Again, I think if not for these orders, the Army would have followed the basic interrogation manual and I don't believe any of these abuses would have occurred. There would have been abuses, but not widespread, systematic, as we have seen in -- regretfully, in the news media coming out of Abu Ghraib.
LT. COLONEL KEITH: But that chain of events would have changed nothing for Lieutenant Watada in his decision not to deploy. I mean, is that what I'm -- is that what I understand?
. . . .
A. Well, in the charge on missing movement, it says (reading): "Any person subject to this chapter who, through neglect or design, misses the movement of a ship, aircraft, or movement with which he is required in the course of duty to move shall be punished as a court-martial may direct."
So it raises the question, what is the course of Lieutenant Watada's duty under these circumstances of widespread crimes against peace, crimes against humanity, and war crimes? And, in any event, under Mullaney versus Wilbur, the government must prove beyond a reasonable doubt that Lieutenant Watada had a duty to participate in this war that is based on crimes against peace, war crimes, and crimes against humanity.
LT. COLONEL KEITH: Let me ask you one question, and that's, if we're discussing, for sake of argument, a declared war that's been declared legally through Congress and through all of those provisions that you discussed with me earlier, is it still possible, then, to have war crimes occur during those legal wars?
THE WITNESS: Yes. That is correct, Colonel.
LT. COLONEL KEITH: So the fact that there are war crimes, in your opinion, occurring in this war, what relevance does that have to Lieutenant Watada's decision not to deploy, and the fact that, from your perspective, this war is illegal and unjust to begin with?
In other words, I'm trying to distill your argument to the basic pieces of it. Which is, I believe, the fact that you believe that this war is unjust or illegal in that, from the beginning, there was no authorization legally to enter into it. All of the remaining arguments in terms of war crimes, what happened at Abu Ghraib, what's been going on in Guantanimo, et cetera, are really ancillary to the fact that you're saying this war was illegal to begin it; correct? I mean, is there any more to it?
THE WITNESS: They're cumulative, all three grounds. That is, under the Nuremberg Charter, Judgment, and Principles, a soldier has a right to absent himself or herself from committing international crimes. Indeed, under certain circumstances, you have an obligation.
That was decided at the Tokyo tribunal, in dealing with high-level military officials and government officials. But it did establish that those in command, not civilians, but those in command, have a right, if not a duty, to absent themselves from committing international crimes, meaning crimes against peace, war crimes, and crimes against humanity.
LT. COLONEL KEITH: In this circumstance, if we argue that, from your perspective, the war is illegal, does the addition of war crimes or the addition of further crimes that were conducted in the engagements of this war make it -- add anything to Lieutenant Watada's decision?
THE WITNESS: Definitely, yes.
LT. COLONEL KEITH: In other words, does it make it worse for him to have made that decision not to go? Does it make it easier for him to have made that decision not to go?
THE WITNESS: I think it would make it easier, Colonel, in the sense that he would be commanding troops in the field, and he would have a special obligation as a commander to make sure that none of his troops committed war crimes. And if they did commit war crimes, in this situation of pervasive, I would say, regretfully, war crimes going on here, he could be held criminally accountable for war crimes committed by his own troops.
That, too, is found in the Law of Land Warfare.
LT. COLONEL KEITH: But that is true for every circumstance of war when in combat; correct?
THE WITNESS: Any commander, yes.
LT. COLONEL KEITH: Regardless of the war, he is held responsible --
THE WITNESS: That is correct.
LT. COLONEL KEITH: -- for the commitment of his troops in their -- in their execution of their duties; correct?
THE WITNESS: That is correct. And, unfortunately, if -- in a situation like this war, where you have, I would say, pervasive war crimes, it really raises the question of the right, if not the obligation, of Lieutenant Watada to say, "I don't want to participate in this."
And the authority for that really goes to the Tokyo War Crimes Tribunal, where that tribunal was set up by General MacArthur. And we tried the Japanese war criminals ourselves. It was not like Nuremberg. That rule, that commanders, both military and civilian, have an obligation to prevent war crimes.
LT. COLONEL KEITH: But, again, I'm trying to understand your argument. You mentioned "pervasive war crimes" several times in terms of the prosecution of this war. Those -- those war crimes are independent actions, are they not? Or are you indicating that just the fact that had Lieutenant Watada decided to deploy to this conflict, anything he did during that conflict would be considered a war crime? Is that the line of reasoning I understand you to be saying?
THE WITNESS: No, I'm not saying anything he did. The -- the problem here --
LT. COLONEL KEITH: So is it possible for him to have deployed and not committed a war crime in this circumstance?
THE WITNESS: Well, the problem here is that we have people at the very top of the chain of command, up to and including the Secretary of Defense, authorizing war crimes. So it would be very difficult, if not impossible, for Lieutenant Watada not to be committing war crimes.
LT. COLONEL KEITH: Would it be possible for him to have deployed in this circumstance and not commit war crimes?
THE WITNESS: Under the circumstances of this war, if he had deployed, he would be facilitating a Nuremberg crime against peace for sure.
LT. COLONEL KEITH: So just in the -- just in the sheer fact that he deployed, he would be committing a war crime?
THE WITNESS: He would be facilitating a Nuremberg crime against peace.
LT. COLONEL KEITH: So currently, everyone in theater, by this argument, by this reasoning, if you will, everyone in theater, in your opinion, who has deployed in support of this operation has committed a war crime just by the sheer nature of their deployment?
THE WITNESS: No, I'm not saying that.
LT. COLONEL KEITH: Then I --
THE WITNESS: It depends on the extent of your knowledge, judgment, and experience.
LT. COLONEL KEITH: Okay.
THE WITNESS: And in the case of Lieutenant Watada, as I understand it -- I've only talked to him once before coming here -- he made a very extensive study of the facts and the law involved here. And the more you know and the higher your rank, the more your responsibility.
So I'm not saying that everyone over there at all is. Again, we're dealing with questions of criminal intent here. They have to be proven beyond a reasonable doubt. And I'm certainly not saying everyone over there is facilitating a Nuremberg crime against peace.
But certainly that's the way Lieutenant Watada saw it, based on his knowledge, judgment, experience, and study. And I agree with his conclusions.
But, again, it goes to his intent and his knowledge.
LT. COLONEL KEITH: So in that line, then, it is possible for a soldier to have deployed in this conflict and not commit a war crime?
THE WITNESS: It is possible if that soldier had not studied anything at all about the origins of the law.
LT. COLONEL KEITH: Well, if they were ignorant of the origins of the conflict, in your opinion, is it possible that they could have deployed, could be there currently, and not have committed a war crime?
THE WITNESS: If they had not studied any of the law or any of the facts and simply showed up, I'm not saying they are war criminals themselves, no.
Again, I still practice criminal law. I'm not saying any member here of U.S. armed forces. Nuremberg established also, there is no such principle as collective guilt. Every question of guilt or innocence under war crimes is individual. So each soldier would have to be looked at in accordance with his knowledge, judgment, and experience about what was going on.
I suspect that the vast majority of U.S. armed forces might conclude that there are no problems with deployment. I don't know. I haven't talked to them.
But certainly in the case of Lieutenant Watada, he is an officer. He had an obligation to inform himself. He was commanding, was going to be commanding troops in the field. He did study. He did research the facts and the law. And he reached these conclusions. And he is held accountable to what he knows.
And, again, paragraph 501 of the Field Manual makes that clear.
"Such responsibility arises directly when acts in question have been committed. The commander is also responsible if he has actual knowledge or should have knowledge through reports received by him or through other means that troops or other persons subject to his control are about to commit or have committed a war crime," et cetera, et cetera.
So, clearly, in this case, Lieutenant Watada had knowledge. He had gone out, he had done his job as a conscientious officer, he had studied the facts and the law, and he had reached the conclusions that he did.
There might be other officers who haven't engaged in the type of study that Lieutenant Watada did. I'm not expressing any opinion about that.
LT. COLONEL KEITH: And had they not, would they therefore not be guilty of war crimes?
THE WITNESS: Well, they're not here and I'm not expressing an opinion about them one way or the other.
But certainly in the case of Lieutenant Watada, he had studied. And so his knowledge is higher. And as a commander, you're charged with the knowledge that you have.
LT. COLONEL KEITH: But in the case of another lieutenant, would it be possible that they would, then, therefore be absolved of guilt for a war crime had they not studied and done the things that Lieutenant Watada had done?
THE WITNESS: Unfortunately, that wasn't what happened with General Yamashita in World War II.
General Yamashita was the commandant of the Philippines. And troops subject to his control committed atrocities against United States armed forces. There was no evidence that he had authorized it or approved it or anything else. Indeed, apparently, he had issued instructions that this shouldn't happen. Nevertheless, he was tried by a U.S. military tribunal and sentenced to death.
And he petitioned for a writ of certiorari to the United States Supreme Court. And the Supreme Court denied the writ of certiorari on the grounds that commanders must know -- if a commander knows or should know that troops or others subject to his control either commit or are about to commit war crimes and fail to do anything about it, they are responsible.
And General Yamashita was hanged.
And that principle of law was directly incorporated into U.S. Field Manual 27-10 by Professor Baxter.
MR. SEITZ: I have no further questions of this witness. Thank you.
LT. COLONEL KEITH: Trial counsel?
CROSS-EXAMINATION BY CAPTAIN KUECKER:
Q. You commented on your previous proceedings, the Huet-Vaughn case, the Paterson case, and Mejia.
Was your role the same in each one of those? Can you describe briefly what your role was as an expert witness.
A. Yeah. I was an expert witness, and I was not paid. And I have not been paid for my appearance here today.
Q. Did you -- Was your focus the same as it is here today or did you comment on other aspects? What was the focus of your testimony?
A. Well, I covered much of the same ground here today in Huet-Vaughn, Paterson.
In the court-martial of Captain Rockwood at Fort Drum, we dealt primarily with the laws of belligerent occupation that were applicable in Haiti. So that was somewhat more technical -- it didn't get into the origins of the war of Haiti. We dealt with the laws of belligerent occupation.
Q. But all of them were with regard to criminal court-martial procedures, --
Q. You say the -- the current mission in Iraq is illegal.
Why hasn't Congress or some other agent, body, taken -- Why does Congress continue to fund it if it's illegal?
A. Actually, in today's "New York Times," Senator Warner, the chair of the Senate Armed Services Committee and a Republican, said that, in his opinion, Congress is going to have to reexamine the War Powers Resolution authorization it has given.
Q. But there is an authorization right now on the table that Congress is operating under?
A. Right. And I've already pointed out, and here I agree with Lieutenant Watada, that was procured by fraud. The Bush administration lied about nonexistent weapons of mass destruction in Iraq and lied about Iraq's nonexistent connection with Afghanistan and September 11th.
Q. In spite of all that, Congress continues to fund the mission?
A. Well, when you have troops in the field fighting and dying, of course you're going to pay for them.
Q. Who in Congress is stating the same rationale as you are with regard to --
A. Congressman John Conyers. And I believe Mr. Seitz is or will introduce the report prepared by his staff. He's the senior ranking member of the House Judiciary Committee.
And they have produced a comprehensive report. I read the report, the first version, as of December. I haven't read the current version. It just came out last week. I was on vacation.
And I've been consulting with Congressman Conyers' office on many of these points and providing him advice and information.
Q. And has -- have any bills gone in front of Congress with regard to that?
A. I -- you know, I can't recall.
Q. How about in the courts, has this issue been raised and had any success in the courts? Federal court?
A. Not that I'm aware of right now, no.
Q. And with regard to the Huet-Vaughn case that you testified in, isn't it true that the court there -- and that's the Court of Appeals for the armed forces -- stated that it's a nonjusticiable question whether to deploy troops or not, that's a political question, not for the courts?
A. I don't recall that, no.
The issue was -- In the Army Review Board, actually, they agreed with her civilian attorney position that she was denied due process of law. And I was there. I regret to say, it was -- it was sort of a kangaroo court proceeding. Her defense was completely shut down. And the Army Review Board did agree.
Then the Court of Military Appeals reversed on the grounds that, on their reading of the record, they felt she had been given due process of law. There might have been some ancillary comments on the rest of it. But the real issue was, was she afforded due process of law at the court-martial proceedings.
Q. From that case, Huet-Vaughn here, finally, to the extent that Captain Huet-Vaughn intended to contest the legality of the decision to employ military forces to the Persian Gulf, the evidence was irrelevant, because it pertained to a nonjusticiable political question, citing U.S. Supreme Court, Flast v. Cohen, political questions not justiciable by federal courts. Another appellant court, the decision to -- whether to employ United States troops is not a judicial function.
It also goes on:
"We finally turn to the military judge's instruction that quitting one's unit because of one's conscience, religion, personal philosophies, ethical or professional considerations is not a defense."
A. Well, you know, finally, at the end of the day, that's what they ruled. But the essence of it was whether or not she was afforded due process of law at the court-martial itself. And her complete defense was totally shut down. She was not afforded the opportunity to have any witnesses on her behalf on substantive issues. I was on the stand for about 30 seconds, answered one question, and was thrown off by the military judge. Now, if you think that's fair, I think you might be living in the wrong country. But that's my opinion.
Q. Lieutenant Watada getting on a plane and going to Iraq, that's facilitating a war crime, just that alone?
A. If he went to Iraq to facilitate a Nuremberg crime against peace, yes.
Q. Any -- any evidence that you have heard that he would be required to do that?
A. To do what?
Q. To facilitate a Nuremberg-type offense?
A. Well, my understanding is that he was going to be commanding troops, that it was a Stryker Brigade here.
. . . .
Q. So anyone who deployed with a Stryker Brigade would be facilitating a war crime?
A. I didn't say that at all. But certainly that was the conclusion that Lieutenant Watada reached, based on his study of both the facts and the law.
Q. And you said earlier that somebody who is well read, has studied the origins of the conflict, who would deploy over there, that alone could be a facilitator or a war crime in itself, by being there?
A. I didn't say that. What I said was that based on his study of both the facts and the law, he concluded that he had a right to absent himself from committing a Nuremberg crime against peace. And I agree with him.
Q. Okay. So, in his mind, he would have been required to do a specific act over there that would have been a Nuremberg crime?
A. The war itself is a crime against peace. In addition, again, -- Again, the Field Manual makes it clear there are three different types of crimes here: crimes against peace, crimes against humanity, and war crimes.
And my understanding -- again, I only spoke with Lieutenant Watada once -- was, the objection to deploying was not participating in a crime against peace.
Second was, again, you have a chain of command here at the highest levels who apparently have either authorized or approved pervasive war crimes.
Q. Let me ask it this way, then. I think I understand.
Let's take a hypothetical where Lieutenant Watada, based on his study of the conflict in Iraq, says, "No. It's unlawful. I can't go."
Me, on the other hand, I study, study the same works, and I come to a different conclusion.
Is it your position that the military should allow Lieutenant Watada to stay here and not deploy, whereas I would have to deploy, if we just came to different conclusions?
A. The Nuremberg Judgment made it quite clear that where a soldier knows to a moral certainty, as he sees it, that an order is illegal, he has to disobey that order.
Q. And that's subjective for each individual service member?
A. Yes. It’s subjective.
Q. Good order and discipline is important for the military, of course. Do you agree with that? It's a hallmark condition of --
A. Sure. My -- my father, after Pearl Harbor, enlisted in the Marine Corps. He invaded Saipan, Tinian, and Okinawa.
Q. So Congress and the country as a whole has a vested interest in maintaining good order and discipline within the ranks of the military?
Q. Based on your philosophy, where one soldier's subjective mind can say something's illegal, so that soldier doesn't go, you don't think that would affect the good order and discipline of a unit where --
A. A soldier has an obligation to disobey illegal orders. That's very clear from Winthrop and Little v. Barreme, decided by the United States Supreme Court. And you'll find it in Field Manual 27-10.
Q. With regard to the Nuremberg defense that you talked about with regard to the obligation to refuse an illegal order, doesn't that -- again, to Huet-Vaughn, doesn't that apply to individual acts committed in wartime? It does not apply to government's decision to wage war? It's directly from the case.
A. That's not what the Field Manual provides. The Field Manual provides quite clearly that the decision to wage war itself must follow both Constitutional procedures in Congress and authorization from the Security Council when -- if the United States government itself is not attacked.
Now, if Iraq had actually attacked the United States militarily, that would be a different story. But Iraq never attacked us. We attacked Iraq. And that made it a crime against peace under the Nuremberg Charter, Judgment, and Principles.
And Lieutenant Watada, then, was correct to say, "I don't want to have anything to do with a crime against peace."
Q. Isn't there a legal argument where the U.N. resolution from back in 1990 was still ongoing?
A. Even the Bush administration didn't accept that argument. And that is why, finally, they tried to get a second Security Council resolution at the beginning of 2003, and failed.
Q. Isn't it -- isn't it true that Iraq was in breach, material breach, and there even was a U.N. resolution on that, they were in material breach of that initial resolution?
A. That was for the Security Council to decide, not any state.
They did not authorize the use of military force in that resolution.
If you study Security Council resolutions authorizing use of force -- which, by the way, President Bush, Senior, did get. I ask the question, if President Bush, Senior, got authorization for war from the Security Council, why didn't President Bush, Junior?
And the answer is, he couldn't get it. The President Bush, Senior, resolution authorized the U.S. government to use all necessary means to enforce that -- to expel Iraq from Kuwait.
The Bush, Junior, administration tried to get a similar authorization, and failed. They tried twice, and failed.
Q. That initial resolution said, "And to restore international peace and security to the area."
. . . .
A. It -- that resolution was limited to expelling Iraq from Kuwait, which the Bush, Senior, administration did.
And, indeed, at that point, the question was, under Bush, Senior, should the United States government go all the way to Baghdad and depose Saddam Hussein. And President Bush, Senior, said publicly, "I did not have authorization from the Security Council to do that, and so I did not do it."
And Bush, Junior, did not have authorization, either, none.
Q. But the 1990 resolution says, legally, he had -- though there might be a political reason not to at the time, in 1991 or whatever, but it was a political reason. He had the legal basis for doing it based on that 1990 resolution?
A. Well, he's contradicted by his own father. President Bush, Senior, specifically said that, "That Security Council resolution gave me no authority to send U.S. armed forces to Baghdad."
Q. I just --
A. It was limited.
Q. I just read to you the authority.
A. Right. To expel Iraq from Kuwait. That's it.
Q. And to restore international peace and security to the area.
A. Right. With respect to the Iraqi invasion of Kuwait.
CAPTAIN KUECKER: I have nothing further. Thanks.
LT. COLONEL KEITH: Two quick questions, Professor.
One, who has the authority to declare this war illegal?
THE WITNESS: Well, of course, the International Court of Justice could do so.
LT. COLONEL KEITH: Who in the United States has the authority?
THE WITNESS: A United States federal court could do so as well. Or the U.S. Supreme Court could do so as well.
LT. COLONEL KEITH: To declare the war illegal?
THE WITNESS: Yes, they could.
LT. COLONEL KEITH: Had weapons of mass destruction existed and/or the tie to 9/11 been founded between Iraq and the 9/11 event, would that change your professional opinion on the conduct of this war and the legality of this war?
THE WITNESS: No. Because at the time in August of 2002 when the Bush, Junior, administration was making these allegations, I was involved in public debates and interviews, even with lawyers on the other side, pointing out, one, there were no weapons of mass destruction in Iraq, and anyone who had studied the situation knew that, --
LT. COLONEL KEITH: I understand. But I'm saying --
THE WITNESS: -- and, two, --
LT. COLONEL KEITH: -- had there been --
THE WITNESS: Well, there weren't.
LT. COLONEL KEITH: -- weapons of mass destruction.
THE WITNESS: Well, that –
LT. COLONEL KEITH: I'm asking, in your professional opinion, --
THE WITNESS: Well, there --
LT. COLONEL KEITH: -- had there been weapons of mass destruction and/or a tie to 9/11, would that change your opinion in terms of the prosecution of the war, in terms of the legality of the war?
THE WITNESS: It would all go back to the authorization of the Security Council, which was not there, and also authorization by Congress. And Congress, was lied to on both accounts, by weapons of mass destruction and by the tie-in to 9/11.
LT. COLONEL KEITH: Okay.
THE WITNESS: And, by the way, those --
LT. COLONEL KEITH: Congress did authorize action, you allege --
THE WITNESS: They –
LT. COLONEL KEITH: -- with bad information.
THE WITNESS: They were defrauded; right.
LT. COLONEL KEITH: Had 9/11 been tied to the Saddam Hussein regime and Congress authorized action, as they did, and a soldier such as Lieutenant Watada deployed in the early days of 1993 or the early -- early -- I'm sorry, not '97 -- 2003, excuse me, --
THE WITNESS: I understand your question; right.
LT. COLONEL KEITH: -- would that change -- would that change the prospect for you, in your mind, --
THE WITNESS: Right. There was still --
LT. COLONEL KEITH: -- as a student of the law --
THE WITNESS: There was still no authorization from the Security Council.
LT. COLONEL KEITH: Okay.
THE WITNESS: Which made it a crime against peace.
And, again, compare what happened here with what President Bush, Senior, did, where he did get first authorization from the Security Council and then authorization from the United States Congress.
LT. COLONEL KEITH: No, I understand that.
So your point -- your perspective is still that even independent of that, if weapons of mass destruction had, in fact, been found or there had been a tie to 9/11, it still would be unlawful in that the U.N. hadn't resolved to do anything about it?
THE WITNESS: The U.N. had refused twice to give President Bush, Junior, authorization to use military force against Iraq. Twice.
He tried, and he failed twice.
LT. COLONEL KEITH: Okay.
REDIRECT EXAMINATION BY MR. SEITZ:
Q. First of all, if in fact there had been a tie-in between Iraq and the attack on the United States in 9/11, wouldn't that have justified the United States then, on grounds of self-defense, to have unilaterally attacked Iraq?
A. Well, that's a far more complicated question.
. . . .
Q. No, I understand.
But I'm asking, I'm saying to you, again, hypothetically, if it had been shown that Iraq was involved in an attack on the United States, that would have been a sufficient basis for the United States, if it could demonstrate that, to take unilateral action on its own?
A. The United States would have a right, under the Constitution and Article 51 of the U.N. Charter, to defend itself with necessary and proportionate means.
And, secondly, if in fact there had been a determination that Iraq did have weapons of mass destruction that were threatening the United States and/or any other countries, in that situation, at least hypothetically, the United Nations might have been in a different position to act than what subsequently transpired; isn't that also true?
A. Well, there it's useful to compare it to the Cuban Missile Crisis, where Cuba actually had weapons of mass destruction targeted on the United States, unlike Iraq. And on missiles.
And President Kennedy refused the advice of his top advisors to attack Cuba. And he also refused to invoke Article 51, because Cuba had not attacked the United States.
So if, under those terrible circumstances, myself having lived through the Cuban Missile Crisis and remembering it quite well, President Kennedy did not attack Cuba, I don't understand what the legal basis was at all for President Bush, Junior, to have attacked Iraq, even if they had some weapons of mass destruction. He should have gone to the Security Council, which he did twice, and gotten authorization, which he twice failed to do.
Q. Now, going back to your last colloquy with Captain Kuecker, I want to just ask you, you would agree, a decision for an individual soldier under the legal authorities that you've cited is a subjective decision that has to be made individually based upon what that soldier knows?
That's what you said; correct?
A. That is correct. And that's true for all criminal law.
Q. But that subjective decision which goes to intent and state of mind, that occurs within an objective factual situation such as the one we have here, where you have stated that there is a problem under international law with respect to the initiation of this war. And within that objective context, Lieutenant Watada has decided that's something that he cannot participate in?
A. That is correct as well.
Indeed, I -- I certainly wouldn't be here if I did not believe that the facts and the law back up what -- the conclusions that Lieutenant Watada, who is not a lawyer, reached of his own accord.
Q. So with respect to some other military action which has been properly authorized, if in that context some individual soldier subjectively decides for himself or herself not to participate, as Captain Kuecker correctly pointed out, that would be a problem for discipline and good order in the military, which could properly be prosecuted; isn't that fair to say?
A. That's correct.
Q. Thank you.
in the case of U.S.
LTC Mark Keith
CPT Daniel Kuecker
CPT Scott Van Sweringen
Assistant Trial Counsel
CPT Mark Kim
Assistant Defense Counsel
Mr. Eric Seitz
SSG Richard M. Goldstein
1LT Ehren K. Watada
The Article 32(b) Investigating Officer called the Article 32(b) session to order at 0908 hours, 17 August 2006, Building 2027B, Fort Lewis, Washington 98433, pursuant to the attached orders.
The following witness was called, advised of his rights, sworn, and testified in substance as follows:
Professor Francis Anthony Boyle, civilian, Professor of Law at University of Illinois, College of Law, Champaign.
Questions by Defense Counsel:
In terms of military proceedings, I have testified in the court-martial proceedings of USMC CPL Jeff Paterson, CPT Dr. Yolanda Huet-Vaughn from the Army, CPT Lawrence Rockwood from 10th Mountain Division and SSG Camillo Mejia. Those are some of the military proceedings that I have testified at and I also have testified many times in state and federal court.
I have been qualified as an expert witness in Military Court Proceedings and Federal and State Courts in International Law and especially the Laws of War under the Field Manual 27-10. The man who drafted this for the US Army, Professor Richard R. Baxter, was my teacher on the Laws of War at Harvard Law School and I was his top student while I was there.
Yes, I am knowledgeable about the US obligations in International Law and have studied and written about them repeatedly over the last 28 years.
The US Army Field Manual 27-10 incorporates International Law directly into 27-10 and all of the rules are there. Basically as drafted 27-10 includes the Hague Conventions of 1899 and 1907, the Kellogg-Briand Peace Pact of 1928, the United Nations Charter, and the Nuremberg Charter, Judgment and Principles as well as the Tokyo war crimes tribunal.
This was published by the Army as of 1956. It was supplemented once and is valid and binding on troops in the field including 1LT Watada.
In order for the United States to enter into a war there are two basic requirements. First, warfare would have to be authorized by the US Congress pursuant to the War Powers Clause of the Constitution; and secondly, unless the US itself is attacked militarily or its troops, it would have to be authorized by the UN Security Council. Otherwise, aggressive warfare would be a Nuremberg Crime against Peace and that is stated in the Law of Land Warfare.
Professor Baxter incorporated the Nuremberg Charter, Judgment and Principles directly into the Law of Land Warfare in 27-10 including the notion of a crime against peace.
The Defense Counsel asked the witness if the US complied with appropriate international procedures to obtain authorization before it invaded Iraq.
No, the Bush Administration did not go through the proper processes and meet its obligations before engaging in the military action of 2003. There was no authorization from the UN Security Council for the US to wage war against Iraq and that made it a crime against peace which is in violation of Paragraph 498 of FM 27-10.
Secondly, there was a War Powers Resolution adopted by Congress but that resolution was procured from Congress by fraud. First, the administration lied to Congress about Weapons of Mass Destruction and then they lied to Congress about Iraq having connections to Sept 11th.
Congress has no authority to authorize a crime against peace or a war of aggression. The current administration tried to get authorization from the Security Council and failed. Since the war started we have seen war crimes committed in Iraq such as the Abu Ghraib torture scandal. The primary responsibility goes to the top of the chain of command. It was authorized by the Secretary of Defense and straight on down from the top, but so far the only soldiers to be prosecuted are lower level individuals.
Separately we have the use of cluster bombs in civilian areas. They are allowed on troop formations and tanks, but if used in a city with a substantial civilian presence that does not comply with the Laws of War.
Next there is the use of depleted uranium. This violates the Geneva Protocol of 1925. This is also found in the Field Manual as a war crime. The depleted uranium is not only poisoning Iraqis but also our own troops.
Last is the use of “shock and awe” to start the war which was a war crime due to the wanton devastation of cities, towns and villages which is also a Nuremberg war crime.
The Nuremberg Tribunal was set up by the United States and the Nuremberg Charter is an executive agreement concluded by the President within his authority as the Commander in Chief. It became part of U.S. government statutes. Therefore the Nuremberg decision is reported as a Federal Rules Decision and is now binding in US Federal Court.
The Geneva Conventions are applicable because they are treaties that the Senate has given their approval for. The four Geneva Conventions were written right into the 27-10 Field Manual by Professor Baxter.
The US Supreme Court has recently emphasized the applicability of the Geneva Conventions in the decision of US v. Hamdan which occurred this past summer. The Bush administration got very terrible and I would say criminal legal advice from his White House Counsel Alberto Gonzales and his Attorney General John Ashcroft. The advice was that the Geneva Conventions did not apply to the war on terrorism. This advice directly contradicted the advice given to President Bush by the professional military lawyers. It also directly contradicted the advice given to him by the international lawyers at the State Department. Secretary of State Colin Powell also sent a memo to the President that the Geneva Conventions not only should be applied but must be applied. The President chose to listen to his political appointees which resulted in the torture scandal at Guantanamo. With that the Major General there acting under the orders from Secretary of Defense Rumsfeld went to Iraq with the mission of "Gitmoizing" the country and that led to the torture scandal at Abu Ghraib.
It is my opinion that if these orders had not been given by the Secretary of Defense and presumably with the approval of the President none of this scandal would have happened. The Army's manual dealing with the interrogation of prisoners of war is impeccable. There is nothing wrong with it. If not for these orders given, the Army would have applied that manual and none of this gross, widespread torture would have happened.
This was Major General Miller who went from Guantanamo to Iraq and with the consent of Lieutenant General Sanchez proceeded to "Gitmoize" Iraq. This torture is a grave breach of the Geneva Conventions and is a serious war crime. The Red Cross has determined that the torture has been widespread in Guantanamo, Iraq and also spread to Afghanistan. This determination described the torture as widespread and systematic which brings the situation to the level of Crimes against Humanity, that is also found in FM 27-10.
The Investigating Officer interrupted the witness to ask him to clarify his response.
Before the tragedies that occurred on September 11th, the Army had an interrogation manual which was impeccable. Then, acing pursuant to the advice of Alberto Gonzales and John Ashcroft and rejecting the advice of Colin Powell and the JAG Corps lawyers the President determined not to apply the Geneva Conventions to Al Qaeda or the Taliban. That decision was implemented on Guantanamo under Major General Miller. Then Secretary of Defense Rumsfeld instructed General Miller to go to Iraq and "Gitmoize" Iraq.
Questions by Defense Counsel continued:
In regards to the charge of missing movement, it raises the question of, what is the course of 1LT Watada's duty under these circumstances of widespread crimes against peace, crimes against humanity and war crimes.
Under Mullaney v. Wilbur the government must prove beyond a reasonable doubt that 1LT Watada had a duty to participate in this war.
Questions by Investigating Officer:
It is still possible to have war crimes occur in a war that is legally declared and has gone through the provisions as discussed earlier such as being declared by Congress.
Under the Nuremberg Judgment and Principles a soldier has a right to absent himself from committing international crimes. The Soldier actually has an obligation to do so. The Tokyo Tribunal established that those in command have a duty to absent themselves from committing international crimes; meaning crimes against peace, war crimes and crimes against humanity.
The addition of war crimes and the addition of further crimes during the engagements of this war make it easier for him to have made the decision not to go in the sense that he would be commanding troops in the field and he would have an obligation as a commander to make sure none of his troops committed war crimes because if they did occur he would be held accountable for them.
Yes, that is true for a commander for any war regardless of what war we are talking about.
In the situation of this war, where we see pervasive crimes we come to the right if not the obligation of 1LT Watada to choose not to participate in this war. The authority for that choice goes to the Tokyo War Crimes Tribunal where that Tribunal, (set up by General MacArthur) tried the Japanese War Criminals ourselves. That tribunal ruled that commanders have an obligation to prevent war crimes.
The problem you have here is that the people at the very top of the chain of command, up to and including the Secretary of Defense authorizing war crimes so it would be very difficult if not impossible for 1LT Watada not to be committing war crimes.
Under the circumstances of this war, if he had deployed he would be facilitating a Nuremberg crime against peace.
So, in the sheer fact that he deployed he would be facilitating a Nuremberg crime against peace.
No, I am not saying that by just deploying in this war all soldiers have committed a war crime. I am saying that depends on the extent of your knowledge, judgment and experience. In the case of 1LT Watada he made a study of the facts and the law involved here and the more you know, and the higher your rank, the greater your responsibility. I am not saying that everyone over there is committing a war crime or facilitating a Nuremberg crime against peace. We are dealing with questions of criminal intent.
So, by that line of reason it is possible for a soldier to deploy in this war and not commit a war crime if that soldier was ignorant of the origins of the conflict and the laws involved.
Nuremberg also established that there is no such principle as collective guilt. Every question of guilt under war crimes is individual. I suspect that the vast majority of US forces see no problems with deploying. But in the case of 1LT Watada, he had an obligation to inform himself, he was going to be commanding troops in the field, he did study and research, and he reached the conclusions that he did, and because of that he is held accountable to what he knows.
Paragraph 501 of the Field Manual makes it clear that the commander is responsible for war crimes that have occurred or are about to occur. With this reasoning 1LT Watada had the knowledge of war crimes and he was required to act on that knowledge.
There might be other officers who haven't engaged in the type of study that 1LT Watada has. I cannot judge if they would be guilty or not because they are not here.
The US Supreme Court turned down a Writ of Habeas Corpus in the case of General Yamashita because they determined that if a commander knows or should know that troops subject to his control either commit or are about to commit war crimes and fails to do anything about it, they are responsible--and the General was hanged for that.
Questions by Trial Counsel:
My role is the previous cases that I mentioned were as an expert witness and I was not paid.
The focus of my testimony covered much of the same ground as I have spoken about here today in the case of CPT. Dr. Huet-Vaughn. In the court-martial of CPT Rockwood at Fort Drum we dealt primarily with the laws of belligerent occupation that were applicable in Haiti.
All of these were in regards to criminal court-martial procedures. CPT Rockwood did not refuse to follow an order; he attempted to stop torture at the main prison in Port-Au-Prince Haiti.
In the New York Times today Senator Warner, the chair of the Senate Armed Services Committee said that Congress is going to have to re-examine the War Powers Resolution authorization that was given for the war in Iraq.
Right now there is an existing authorization that Congress is operating under. I have already pointed out that that authorization was procured by fraud. The Bush administration lied about non-existent weapons of mass destruction in Iraq and lied about Iraq's connection with Afghanistan and 9/11.
Congressman John Conyers, the senior ranking member from the House Judiciary Committee has produced the report that was just issued and introduced into evidence here. I have been consulting with the Congressman's office on many of these points and providing him advice and information.
I am not going to speak for the Congressman about his position on the legality of the war.
In regard to the Huet-Vaughn case, I was there and it was a kangaroo court proceeding. Her defense was completely shut down and the Army Review Board did agree that she was denied due process of law. Then, the Court of Military Appeals reversed.
The Trial Counsel cited two cases where the court decided that the decision of troops deploying is not a justiciable matter but a political question as was the case decided by the Court of Appeals in Huet-Vaughn.
At the end of the day that is what the Court of Appeals ruled in part in the Huet-Vaughn case but the essence of the case was whether or not she was afforded due process of law at the court-martial itself.
By getting on a plane and going to Iraq 1LT Watada would be facilitating a Nuremberg crime against peace. From my understanding he would be commanding troops in a Stryker Brigade.
No, I did not say that anyone deploying with a Stryker Brigade would be facilitating a war crime. But certainly that is the conclusion that 1LT Watada reached based on his study of both the facts and the law.
I did not say that someone who is well read and studied the origins of the conflict and would deploy over there that alone would be a facilitator of a war crime in of itself. I said that based on his study of both the facts and the law 1LT Watada concluded that he had a right to absent himself from committing a Nuremberg Crime against Peace.
The war itself is a Crime against Peace and my understanding is that 1LT Watada's objection to deploying was not participating in a Crime against Peace.
If you have this hypothetical where one soldier thinks the war is legal and another does not the Nuremberg Judgment made it quite clear that where a soldier knows to a moral certainty that an order is illegal he has to disobey that order, and that is subjective for each individual service member.
Yes, good order and discipline is a hallmark of the service and Congress has a vested interest in maintaining that.
But a soldier has an obligation to disobey illegal orders. The Field Manual states that the decision to wage war itself must follow both Constitutional procedures and authorization from the Security Council itself if the United States is not attacked.
The Bush Administration did not accept the argument that the UN Resolution from 1990 is still ongoing. That is why they tried to get a second resolution at the beginning of 2003 and failed.
The Security Council did not authorize military force in that 2002 resolution. The Security Council did authorize the US to use all necessary means to enforce and expel Iraq from Kuwait. The Bush Jr. administration tried to get a similar resolution and failed twice.
There was no language in the resolution to use all necessary means by force. Yes, going back to the 1990 resolution it did say by all necessary means. The resolution was limited to expelling Iraq from Kuwait; the language about restoring peace and security to the area was accomplished by that. The question at the point of the ceasefire was should the US go all the way to Baghdad and depose Saddam Hussein and President Bush Senior said publicly that he did not have authorization from the Security Council to do that.
Questions by the Investigating Officer:
The International Court of Justice has the authority to declare this war illegal. In the United States a Federal Court could do so as well or the Supreme Court.
In the Fall of 2002 I was engaged in public debate that there were no weapons of mass destruction in Iraq.
The Investigating Officer asked the witness to answer if hypothetically there were weapons of mass destruction found in Iraq and/or the tie of Iraq into the attacks on Sept 11th would that change the opinion of the witness with regards to the legality of the war.
There weren't any weapons of mass destruction found. That would all go back to the authorization of the Security Council, which was not there and also authorization by Congress. And Congress was lied to on both counts.
Congress was defrauded but with that did authorize action. It is hypothetical: there is no tie between Iraq and 9/11. There was still no authorization from the Security Council so that made it a crime against peace. The UN refused twice to give President Bush Jr. authorization to use military force against Iraq.
Questions by Defense Counsel:
The hypothetical idea of Iraq having weapons of mass destruction and the US responding to that can be compared to the Cuban Missile Crisis. President Kennedy refused the advice of his top advisors to invoke Article 51 of the U.N. Charter because Cuba had not attacked the United States.
Yes, I would agree that the decision by a soldier is a subjective decision based on what that soldier knows. It is correct that based on what is going on with the questions surrounding the legality of the war. I would not be here if the facts and the law did not back up the conclusions that 1LT Watada reached of his own accord.
The Trial Counsel objected for the record based on relevancy, speculation, hearsay and the issue of the lawfulness of the war being non-justiciable.
There being no further questions the witness was permanently excused.
Putting the War on Trial
by D.D. Delaney (14 Nov 2006)
It may be a tough sell -- drumming up public support in a military town for a commissioned Army officer expected to be court martialed for refusing deployment
But Bob Watada will try to do just that at Norfolk's 40th Street Stage on Wednesday, Nov. 15, when he speaks in defense of his son, 1st Lt. Ehren Watada.
On June 22, Watada, stationed at Fort Lewis near Seattle, did not join his battalion onboard an airliner bound for Kuwait to prepare for the war in Iraq. He is the first U.S. commissioned officer to refuse service there. The case is attracting widespread media attention, not only for its first-of-a-kind drama, but because Watada's defense intends to put the legality of the Iraq war on trial.
The elder Watada's appearance here, with Ehren's step-mother, Rosa Sakanishi, comes near the end of a nation-wide tour which they've named "Putting the War on Trial." Their mission, says Watada, is "to inform people about why my son has taken his stand...and made public statements as to the war being illegal and
"In past cases where there has been considerable public support for the defense," he says, "the Army has mitigated the charges." But Watada also hopes to educate a "very complacent" American public about what his son discovered when he "researched the reasons" for the war and "found out the President had lied --about weapons of mass destruction, about chemical weapons, about the connection between Osama bin Laden and al Qaeda in Iraq, and about our being there to make a democracy.
"We are there," he says, "because Bush wants to colonize and privatize Iraq for multinational corporations."
After a final stop in North Carolina, the couple plans to return home for a Nov. 19 appearance at the University of Hawaii in Honolulu, where they'll await a pending decision by Fort Lewis Commanding Lt. Gen. James Dubik on whether to try Lt. Watada. His father says his civilian lawyers expect a trail but hope for
negotiated disciplinary measures.
Military law provides justification for those who refuse to obey orders they consider illegal, and in an Article 32 hearing on Aug. 17, a proceeding similar to a grand jury investigation in civilian court, prosecuting Investigating Officer Lt. Col. Mark Keith agreed to consider Watada's issues.
Watada contends, as he says in a video he released to the media on June 7, "that the war in Iraq is not only morally wrong but a horrible breach of American law.... My participation would make me party to War Crimes."
Both Francis Boyle, law professor at the University of Illinois, and retired Army Col. Mary Annette Wright, former instructor of land warfare law at Fort Bragg, NC, seemed to corroborate Watada's position at the Article 32 hearing.
Boyle argued, principally, that the Bush administration acted illegally when it committed aggression against Iraq without prerequisite authority from the U.N. Security Council and engaged in fraudulent claims to elicit Congressional authorization under the War Powers Act. He also testified that the Abu Ghraib torture incidents and the "shock-and-awe" bombing of civilian areas, including the use of cluster bombs and depleted uranium, constituted war crimes.
Wright confirmed a soldier's right, guaranteed in military code, to refuse to obey an illegal order.
"You don't want personnel who will carry out illegal orders and say that they were told to do it," said Wright, who resigned her National Guard commission in
March 2003, in protest of the invasion.
"A solider has an obligation to disobey illegal orders," Boyle also told the court.
Watada, however, faces eight-and-a-half years in prison for the charges the Army has brought, which, in addition to missing movement, include contempt toward officials and conduct unbecoming an officer and a gentleman, these last two resulting from a series of public statements he has made critical, in particular, of President Bush and senior members of the administration.
His case has become a cause celebre among opponents of the war, who remember how opposition within the military was key to ending the Vietnam War. But it has also created a divisive debate among Asian-Americans, particularly on the Pacific Coast, where loyalty issues are particularly sensitive after the Japanese internment in American prison camps during World War II.
Watada is of Japanese descent.
But for Bob Watada, a retired Hawaiian state government worker, protesting war is nothing new.
"I was very much against the U.S. invasion of Vietnam," he says. He enlisted in the Peace Corps to avoid the draft and served two years in Peru. Upon his return, found a draft notice waiting for him. He beat that order with a student deferment to graduate school, eventually earning a doctorate in agricultural and resource economics, a field natural to him, having been raised on his parents' farm in rural Colorado.
Because of his Japanese-American background (his parents were born in Japan), Watada says he's "always been very aware of civil rights, which His present tour began with a few appearances in the San Francisco Bay area and grew from there spontaneously, sponsored largely by Veterans for Peace but also by Iraq Veterans Against the War (his son's strongest supporters, he says), Military Families Speak Out, Gold Star Families for Peace, Code Pink, and interested Asian-American organizations.
Additional sponsors in Hampton Roads include the Norfolk Catholic Worker and the Active Duty Military Project.
The latter, a national movement originating in Norfolk, seeks to gather thousands of signatures from active-duty military on a petition - or Appeal for Redress - asking Congress "to support the prompt withdrawal of all American military forces and bases from Iraq." The group plans to deliver the appeal to Congress on Martin Luther King Day in January.
Bob Watada will speak on behalf of his son on Nov. 15 at 40th Street Stage, 408 W. 40th St., Norfolk, beginning at 7 p.m.
FOR IMMEDIATE RELEASE
January 2, 2007
Sarah Olson, Journalist: (415) 298-5573, firstname.lastname@example.org
Dahr Jamail, Journalist: (206) 384-6601, email@example.com
David Green, Attorney representing Sarah Olson: (510) 208-7744
Dan Siegel, Attorney representing Dahr Jamail: (510) 839-1200
Army Seeks Journalist Testimony in Political Speech Prosecution
San Francisco, CA – In a move that threatens the First Amendment rights of journalists, the U.S. Army has subpoenaed journalist Sarah Olson to testify at the January 4 pre-trial hearing in the court-martial of Lt. Ehren Watada. The Army placed another journalist, Dahr Jamail, on the prosecution witness list.
Both journalists say the Army’s attempt to compel their participation in the court-martial threatens press freedom and chills free speech.
U.S. Army 1st Lt. Ehren Watada became the first commissioned officer to refuse his orders to deploy to Iraq on June 22, 2006. In his upcoming February court-martial Lt. Watada faces one charge of missing troop movement, and four counts of conduct unbecoming an officer. Each of the later four charges relates to Lt. Watada’s public explanations of his refusal to deploy to Iraq. If convicted of all charges Lt. Watada faces six years in prison, four of which would be for speaking to the press.
Independent journalist Sarah Olson interviewed Lt. Watada last May. The Army says statements Watada made during Olson’s interview constitute one charge of conduct unbecoming an officer, and wants Olson to verify those statements in a military court. Olson says: “It’s my job to report the news, not to participate in a government prosecution. Testifying against my source would turn the press into an investigative tool of the government and chill dissenting voices in the United States.”
Independent journalist Dahr Jamail reported on Lt. Watada’s address to the Veterans for Peace convention last August. The Army says it wants him to authenticate his reporting of the event. Jamail says: “I don’t believe that reporters should be put in the position of having to participate in a prosecution. This is particularly poignant in this case, where journalists would be used to build a case against free speech for military personnel.”
The journalists say once the press is seen as the eyes and ears of the government, dissenting voices are less likely to express themselves publicly. A free and open exchange of ideas is the life-blood of democracy, and it is in the public interest to have a free debate on disparate views of current political issues.
By Hal Bernton
Seattle Times staff reporter - 04 Jan 2007.
The opening round in the court-martial of 1st Lt. Ehren Watada could be key to defense hopes of putting the Iraq war on trial along with this Fort Lewis Army officer who refused to deploy to Iraq.
At a pretrial hearing today, Watada's attorneys will try to persuade a military judge that they should be allowed to argue that the war is illegal, in part because it violates military regulations that wars be fought in accordance with the United Nations charter.
That stance is crucial to the defense of Watada, who faces charges of missing a troop movement and conduct unbecoming an officer.
"The entire scope of the trial is going to be pretty much decided by the judge's ruling," said Eric Seitz, Watada's civilian defense attorney.
The hearing, expected to last at least a day, is a prelude to a court-martial scheduled to begin next month.
Watada, one of the first commissioned Army officers to refuse to serve in Iraq, has drawn international attention for his stand. He also has joined with peace groups to attack the Bush administration's handling of the war.
"Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and the rules of engagement of desperate field commanders will ultimately force them to be party to war crime," Watada said in an Aug. 12 speech to the Veterans for Peace in Seattle. That speech is cited by the Army as evidence of misconduct.
Watada says he is not a conscientious objector opposed to all wars. He has offered to serve in Afghanistan, but the military rejected that offer.
Prosecutors say it's not up to Army officers to determine the legality of a war and have noted that no U.S. court has ever ruled that the Iraq war is illegal. At today's hearing, they are expected to argue that quitting one's unit because of conscience, religion, ethical or other considerations is not a valid defense, and that Watada's views on the war are irrelevant.
A military judge will preside over the hearing. At the actual court-martial, Watada will be judged by a panel of soldiers, the military equivalent of a jury.
If convicted on all charges of missing a troop movement and conduct unbecoming an officer, Watada risks six years in prison.
Since refusing to deploy to Iraq, Watada has worked a desk job at Fort Lewis while his unit served in Mosul, and more recently, Baghdad. In the months after the June deployment, the Fort Lewis brigade of more than 4,000 soldiers has lost 11 soldiers in Iraq.
"People say, 'He is a coward. He deserted his soldiers,' " Watada said in an interview earlier this week. "I am here because I care about my soldiers, the ones who died and the ones who are going to die."
Watada said his refusal to serve in Iraq was based, in part, on his review of the Army Field Manual, which states in a section entitled "Commencement of Hostilities" that "The Charter of the United Nations makes illegal the threat or use of force contrary to the purpose of the United Nations."
Watada said he believes the United States did not get the necessary U.N. approvals to launch the invasion that began in March 2003.
U.S. officials dispute that analysis, saying the invasion was authorized by a November 2002 Security Council resolution, which threatened "serious consequences" should Iraq fail to fully comply with terms of weapons inspections.
That resolution gave the United States full authority to invade Iraq, according to Richard Grenell, a spokesman for the U.S. mission to the United Nations.
But other diplomats — including former U.N. Secretary-General Kofi Annan — have questioned whether that resolution legalized the U.S. invasion and noted that the United States was unsuccessful in an effort to get a more explicit resolution approved in winter 2003.
Some scholars of international law also have questioned the legality of the invasion. One of the most outspoken has been Francis Boyle, a University of Illinois law professor and vocal critic of the Bush administration. Watada's attorney wants to call Boyle as a witness at the court-martial.
Boyle said the Army Field Manual references to the U.N. charter were inserted in 1956, by Army attorney Richard Baxter, and reflected the experiences of World War II and the wars of aggression waged by Germany and Japan.
"It is a field manual intended primarily for officers," Boyle said. "It is not intended as a treatise on international law, but it made clear the United Nations charter covers the use of force."
The pretrial hearing also is likely to include some sparring over prosecutors' efforts to compel journalists to testify about the accuracy of their articles. At least two journalists have been subpoenaed in the court-martial case, including Oakland, Calif.-based Sarah Olson, an independent journalist and radio producer who interviewed Watada in May.
Olson said the government subpoena is a threat to the free press, since it would chill the voices of military personnel who want to express dissenting views to the media.
Olson did not say whether she would comply with the subpoena.
Seattle Times researcher David Turim contributed to this report.