An Easy Call In Judging Watada
Wednesday - July 19, 2006
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Lt. Ehren Watada
Letters to the editor on the Ehren Watada case have generally been emotional, ideologically motivated and ignorant of military law.
If you’ve been absent or are just absent-minded, Watada is the Army lieutenant who refused to go to Iraq with his unit.
Some cheer on the 28-year-old Honolulu officer. Some condemn him as a coward. There’s been a story going around that a personal matter between Watada and an enlisted man led to his deployment refusal out of fear of being “fragged” (shot in the combat zone) by his own troops.
This case will be defined by military law enacted by Congress - not by who yells loudest.
Article 87 of the Uniform Code of Military Justice (UCMJ) is specific about missing a troop movement. Unless Watada’s lawyer can show that the UCMJ is defective as statutory law, the lieutenant is up that famous creek without a paddle.
It’s a given that the military judge (colonel) using the latest Manual For Courts-Martial will not allow Watada to claim the rightness or wrongness of the Iraq war, and that the military court of appeals would not entertain that sideshow issue.
Then there’s Article 133. It says “any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.”
It’s almost impossible to beat, although the penalties are usually the smallest of the jail-able/discharge offense-articles of the UCMJ - the “penalty” articles. It’s the catch-all article in case everything else fails. Watada will be convicted on No. 133 even if he’s acquitted on everything else.
I agree with those who believe the Army’s on shaky ground on Article 88, where Watada’s accused of criticizing President Bush for taking America to war. That article reads:
“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”
It seems unlikely that on automatic appeal (if there’s a conviction) reasonable judges would say a soldier loses all his citizen rights to comment on current or past events. Soldiers have griped about their superiors’ judgments through military history. Thousands of GIs have uttered these words about a platoon leader, company or battalion commander: “He’s an idiot.”
They usually only get in trouble if they call him an idiot to his face and in front of others. What commander wants to press charges saying that some of his men think he’s an idiot? It might turn out at trial that he is one!
Criticizing a president is the most American of rights. In this case, Watada’s only said what most everyone has said - that Bush misled us. He did, with the intelligence available to him, which was wrong. Watada shouldn’t be penalized for speaking the truth.
Some Watada supporters ask why the Army didn’t just send the man to Afghanistan. He was willing to serve there. The legal answer is that GIs don’t get to choose their assignments. In the Air Force, I asked for Japan and my buddy Jay asked for Germany. I got Germany and Jay got Japan. We went where we were sent. It would not have been smart for us to have sat in Biloxi, Miss., and refuse to board our planes. Or to have offered to serve instead in Las Vegas or Hawaii.
You can be a Henry Thoreau and do civil disobedience, but you must also submit to the jail time - which Thoreau did. He did one night for refusing to pay taxes he said supported an illegal war in Mexico.
I’ve laid out the legal issues. But I know many of you will say “yeah, yeah, yeah” and go right back to your emotional ones.
Remember, this won’t be a civilian jury trial. The Army will only have to prove one essential element:
Did Ehren Watada miss his troop movement to Iraq?
Yes, he did. Guilty.
Then it’s only a matter of the sentencing.
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