Mistrial declared in lieutenant's refusal to deploy to Iraq

The Baltimore Sun

FORT LEWIS, Wash. -- A military judge abruptly declared a mistrial yesterday in the court-martial of an Army lieutenant who refused orders to go to Iraq, handing a temporary reprieve to the elated officer and leaving military prosecutors visibly stunned and angry with the ruling.

The decision by the judge, Lt. Col. John Head, turned on the contentious issue of whether factual stipulations agreed to earlier by the prosecutors and the defense team amounted to a confession of guilt by the lieutenant, 28-year-old Ehren Watada, on the Army's charges of failure to deploy.

Prosecutors argued, in effect, that they did, and that Watada's reasons for refusing direct orders to fly to Iraq with his unit last summer were irrelevant.

An illegal war

Watada said he had admitted to the facts of deliberately missing his flight, but that he did so because he considered the war illegal.

Watada's line of argument is essentially a version of the Nuremberg Defense, or the idea that a soldier can be justified in refusing an order if he believes carrying it out would force him to commit an illegal act.

Under the military code, however, there is a heavy burden of proof on the refuser to justify disobeying the chain of command, since the chain itself is vital to the effective functioning of military forces.

While Watada will likely face a retrial, the judge's ruling nonetheless amounted to a temporary moral victory for the lieutenant in a case that many legal observers had considered a virtual slam-dunk for the Army.

'A major mess'

His lawyer, Eric Seitz, said that Watada's intent in refusing deployment orders was at the heart of his defense and that it was ridiculous for prosecutors -- and, perhaps, the judge -- to suggest that he had no right to explain why he did what he did.

"The government has created a major mess here, and that's clearly why they had to move for a mistrial," said Seitz. "Any time the government tries to suppress a defendant's attempt to explain his actions, that's not a good thing."

Anti-war forces wasted no time in declaring the mistrial to be a huge victory, with banner signs saying as much at a rally held just outside the base here, a few miles south of Tacoma.

But Army officials said the ruling really showed how the military system bent over backward to be fair to the defendant.

"Throughout the military justice system, the Army steadfastly protects the rights of the accused," said Lt. Col. Robert Resnick, a legal adviser in the Army's staff judge advocate's office at Fort Lewis.

"The judge's ruling today in this case provides further evidence of that."

Watada smiled and hugged his mother, Carolyn Ho, after the judge declared the mistrial. But he left public comments to Seitz, who said that Watada was exhausted, suffering from a cold and disappointed that he was not able to present his defense before the seven-member military jury that was to decide his fate.

Seitz adamantly rejected any assertion that the stipulations were tantamount to an admission of guilt.

"Absolutely no way," said Seitz. "He's a smart guy. He knew exactly what he was agreeing to."

Sam Howe Verhovek writes for the Los Angeles Times.

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