Short history: Ehren enlisted in the military very shortly after our invasion of Iraq believing what the Bush administration had told us, that the war in Iraq was necessary per what our GOVERNMENT officials were telling us. Ehren enlisted as an officer and first went to Korea where his commanding officer told him that he should study, study, study about what he would be leading his men into-the war in Iraq. So Ehren did that, he began studying. Ehren was an Eagle Scout, he took serving his country VERY seriously, but as he read, that we were lead into a war under COMPLETELY false circumstances, he began to doubt that he should be serving towards that end. He read about the devastation in Iraq, he read about the lies, and he determined for HIMSELF as an individual officer that he could not follow orders to deploy in what he felt was an illegal war, because a soldier takes his military oath which rests on upholding the CONSTITUTION, which is bound by treaty to the Nuremberg Principles which do NOT allow for pre-emptive wars of aggression.
In January of 2006 Ehren submitted a letter of resignation to his commanding officer. He was told he would be transferred out of his unit, but would still be going on a training exercise to lead his men (which he did) In April he was told there were procedural mistakes in his letter of resignation and was offered a"safe" position within his Battalion headquarters (these are given to conscientious objectors) but having NOT claimed CO status (Ehren is NOT a CO-he believes the war in Iraq is illegal), he turned down that offer. Ehren turned down the offer because it would have been a LIE, and Ehren is a man of HONOR and INTEGRITY. He was denied a two week leave given to all others and advised he would face legal proceedings if he did not change his stance. A SECOND letter of resignation was submitted but denied because at that time his unit was on "stop loss designation" which requires all to stay on active duty while their unit is in deployment (From the timeline at Thankyoult.org). He advised his commanding officers that he would NOT deploy in June as was scheduled, but continued to serve with honor and high marks as an officer.
On June 13, 2006 Ehren made a public statement, FULLY following procedure been told to him by officials at Fort Lewis-what he could and could NOT do, that he would not be deploying to Iraq seen here. On the day of deployment, June 22, 2006 he missed movement as he had TOLD the military he would do. Then he began speaking publicly about his decision. Charges of conduct unbecoming of an officer were brought against Ehren (in addition to missing movement charges) for his initial statement as well as his speech made here on August 12, 2006 speaking at the Veterans for Peace 2006 National Convention.
Between the time he made his public statement, missed movement, and spoke publicly about his actions and the court marshal in February 2007, Ehren continued to report to Fort Lewis to a desk job he was assigned to. In December 2006, Ehren's service to the military as a commisioned officer ended, yet til this very day, Ehren has not been released from the military and has been confined to travel within a 200 mile radius of Fort Lewis. A blatant violation of his habeas corpus rights.
What Ehren is facing NOW, is a second court marshal on the same charges as the first court marshal. But in order to understand WHY this double jeopardy case is so important, one must look back to that first court marshal which should have NEVER happened as it did. On that day Ehren was PREPARED to testify on his own behalf, having been completely denied of all witnesses his defense (Eric Seitz) had called pertaining to the illegality of the war. On the third day of the trial, after the prosecution had RESTED their case, it would have only been Ehren and a sargeant flown in from Iraq as a character witness who would be testifying. Ehren's apartment was packed up, and he was prepared to be arrested and taken to prison if found guilty.
But what happened, in a total Twilight Zone daze to all of us sitting in the court room that day was an egregious miscarriage of justice directed and manipulated by Judge James Head, the SAME judge who later denied Ehren's submission of a double jeopardy plea, the SAME judge who refused to recuse himself from the case, and the SAME judge who will be residing this coming Tuesday and has denied a postponement even though Ehren's case is still on appeal in other courts on grounds of double jeopardy. Legally speaking, since Ehren's case IS on appeal, if the court marshal goes forward as planned, it is a CLEAR violation of Ehren's Constitutional rights because the second trial has ocurred WHILE on appeal, therefor his rights have been denied.
Yesterday, Ehren's lawyers argued his case before a Federal Appeals Court:
Judge will wait on Watada decision
MICHAEL GILBERT; The News Tribune
A federal judge indicated he won’t likely decide whether to halt Lt. Ehren Watada’s second court-martial until Tuesday morning, when the proceeding is scheduled to begin in an Army courtroom at Fort Lewis.
U.S. District Judge Benjamin Settle in Tacoma listened Thursday afternoon to arguments by lawyers for Watada and the Army, and gave both sides until 10 a.m. today to submit additional points in writing.
Below are the notes I took on my laptop that day the mistrial occurred. It is important to note, that it was the JUDGE who insisted on the mistrial, the prosecution felt they had an open and shut case, Ehren had stipulated that he missed movement, he NEVER denied this. He stipulated he made the statements he did, he NEVER denied them either. HOWEVER, Ehren plead not guilty to missing movement. NOTE: The judge said," Mistrial is in order, government has no case because you will not stipulate to fact. We will have to set a new trial date."
Ehren DID stipulate to fact of missing movement!!! But plead NOT GUILTY. This was KNOWN BY ALL PARTIES, was accepted by the court and this was NOT something NEW!!!!!!
This is where the crux of Ehren's defense at that first court marshal laid, he ADMITTED he missed movement but was PREPARED to say why he did so, that he was INNOCENT because HE felt the war in Iraq was a war crime (the notes below contain his actual statement that day in court). He plead NOT GUILTY to missing movement. The prosecution and the judge were WELL aware of his plea. But Ehren was never allowed to give that testimony, because the JUDGE said that Ehren misunderstood his actions when he signed the stipulation that he DID miss movement. Ehren did NOT misunderstand. But the case was going SO poorly for the prosecution who thought it was a slam dunk case that the judge stepped in. At that time even the prosecution stated, "He thinks he has a case, we don't" So the prosecution was WELL aware of what Ehren was going to say, but with their "military minds" they thought, he missed movement, he even admitted it, HA! Case closed.
As read in the petition of habeas corpus submitted on appeal:
"When trial resumed on February 7, 2007, the military judge announced that he had discovered a problem with the Stipulation of Fact the parties had entered into, and which the Military Judge had approved. Counsel for both the Government and the Petitioner repeatedly advised the Military Judge that they did not see any defect or problem with the Stipulation of Fact and did not see any reason existed for setting aside that Stipulation. Over the objection of both parties, the Military Judge set aside the Stipulation of Fact. The Military Judge then invited Council for the Government to move to reopen or to move for mistrial. Following the recess, Council for the Government made a motion for a declaration of mistrial. Council for the Petitioner then immediately objected and opposed the motion for a mistrial. The Military Judge then immediately declared a mistrial without considering any alternative procedure for continuing the trial with the panel of officers that had been hearing the case. The members of the court marshal panel were then dismissed."
The prosecution KNEW what Ehren was prepared to say in his testimony that day and thought it wouldn't fly for a minute with the jury. But Judge Head wasn't going to take that chance, so with HIS urging, the prosecution asked for a mistrial and it was granted. BOTH sides argued against the Judge who wanted the mistrial that day, but behind closed doors, the decision was made and Ehren was NOT allowed to give his testimony except briefly when the judge himself questioned him, something again, that legally Ehren did NOT have to answer at that point (notes below indicate this-"reopening")
Now an appeal is pending in federal court on the basis of double jeopardy. Legally the prosecution can ONLY ask for a mistrial under extraordinary circumstances. Read from the appeal submitted on double jeopardy:
"A mistrial granted over the defendent's objection deprives the accused of his "valued right to have his trial completed by a particular tribunal"Wade vs Hunter 336,US. 684, 689 (1949). Accordingly in this situation "the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one". Arizona vs Washington, supra, 434 US. at 505. Petitioner respectfully requests Government cannot meet burden in this case"
First Lieutenant Ehren Wadada's request for resignation from the military SHOULD have been accepted but was not. Ehren's right to a fair trial SHOULD have been granted at the first court marshal in February, but it was NOT. Now his CONSTITUTIONAL rights are being violated in a second court marshal. This is NOT just happening to Ehren, this is happening to ALL of us who hold our Constitution dear and who SHOULD be able to trust our government to abide by it but CANNOT now since this administration has torn it asunder in EVERY manner.
Ehren's website has been UPDATED to reflect the current situation. PLEASE go there to see his campaign's plea and SIGN THE PETITION in support of First Lieutenant Ehren Watada, a TRUE American hero, a MAN who is standing up for EACH AND EVERY ONE OF US and is facing SIX YEARS in prison for his actions. Go through the site THOROUGHLY to understand more.
And DO SOMETHING!! Call the media in your area, organize a vigil, SPEAK OUT!!!
Thursday, February 8, 2007
Currently I am sitting in the courtroom awaiting the trial’s opening for the day. The first day we were here I assumed laptops would not be allowed accept for the press. Yesterday I noticed that laptops for the “invited guests” are allowed. So with a great deal of help from others here, hat-tip to Nina, I am going to do my best to write what is happening. Ehren is going to be first on the stand this morning after any legal stipulations are gotten out of the way. Then after that, an army captain currently serving in Iraq, has flown in to serve as a character witness on Ehren’s behalf. After that we will be hearing closing arguments and the case will go to the panel for their decision. Please excuse typos or quickness, because I am going to do my best to cover what is being said today, as First Lieutenant Ehren Watada takes the stand to testify on his own behalf. I won’t be doing too much editing either as this will be raw coming as best I can and as quickly as I can to you my readers. I have to leave to Sea-Tac at 3:00 so I won’t be covering after that. I apologize for not getting the first two days out but our time has been taken with the campaign itself and as I said yesterday, my room-mate was asleep and I could not turn on the light to transcribe the notes here. We have been keeping LONG hours, up EARLY in the morning to get here to get our passes. Security is much tighter today and yesterday the press was told they were not allowed to fraternize with any of the activists or talk to us. They were even told not to go eat at the same place we were eating and to avoid all contact. I really have to wonder why this was told to them because as I read the new’s accounts of what occurred yesterday many key statements in the testimony were excluded in the press accounts. For instance, when asked by Eric Seitz why he insisted on issuing deployment orders to Ehren when he deemed him unfit as an officer for his statements and attempted resignation since January of last year, Lt. Col William James could not give an answer, in fact he ignored the question altogether. James also testified that he counseled Ehren not to make a “young man’s mistake”, based on emotion. Seitz asked him if he took Ehren’s request to resign or be reassigned seriously James said “Up until that time Watada had been an exempliary officer” and that he felt that Ehrens’ requests and statements were purely based on emotion. So in other words (my take) if you question, if you do all you can to follow military rules and do not agree with those higher than you, you are simply being “emotional” and are dismissed.
10:10: We were told about a half an hour ago that the proceedings were to begin at 10:00. No reason was given. Now we were just told it would be another half hour. No reason given. 10:25, they just closed the doors to our room and we are awating the judge walking in to be sen on the live feed. 10:42, the judge just entered.
(I do not claim to be a court reporter, but this is what I was able to type as fast and as accurately as I can)
JUDGE: there have been issues raised with defense counsel,regarding conflict with stipulation of fact.
Seitz: You are not entitled to ask my client questions at any time. If you insist on doing so, I will advise my client to not to answer the question. It has always been my client intention to not only miss movement, but it was based on Intent, that the war was illegal. You have ruled that the order which was given to him was legal, we contend it is not legal, there is nothing in his stipulation that goes to intent. It has always been the intention to follow the instructions to follow the instrurctions given him, there is nothing in there that has been proven. We did not plead guilty because there is nothing in stipulation going to that.
Prosecution: His argument is irrelevant
Seitz: There is nothing in the stipulation that is contradictory to what was given to us.
Prosecutor: The accused willingly missed movement.
Judge: That’s why I feel I need to reopen the inquiry, because your client doesn’t seem to understand.
Seitz; He does UNDERSTAND, but you have undercut our ability to defend our client. You MUST submit the questions to us. This is NOT allowed at this point in the case.
Judge: I am going to reopen the inquiry. COUNSEL SIT DOWN
Seitz: I will not sit, I will stand.
Judge:. Judge: Mistrial is in order, government has no case because you will not stipulate to fact. We will have to set a new trial date.
Judge: When you come back, let me know if you will direct your client to answer.
Recall members at 12:30, stand-by 12:15
Judge: Do you remember what I asked you before regarding the stipulation?
Paragraph 4, page 7: What does it mean that you intentionally did not board the aircraft.
Ehren: Your honor, in that sentence, is that intentionally missed movement because I believe it would lead me to participate in war crimes in an illegal war.
Judge: Do you believe you had a duty to make that movement?
Judge: What do you think this paragraph means?
Ehren: I have always believed I had a reason to miss movement. That has been my contention all along that I have the legal and moral right
Judge: Do you believe that paragraph 4 gives every reason ?(why you missed movement)That’s the problem I am having the problem, because you don’t think you had the duty, regardless, what do YOU believe?
Ehren: Your honor I did not miss boarding the aircraft out of negligence or because it was a mistake, I was being asked to do something I could not do.
Judge: Let me read to you what you read before: the government has the duty to prove beyond a reasonable doubt that you missed movement, by stipulating that you missed movement, that you stipulated and that relieved the government’s burden. What did you understand that to mean?
Ehren: I do understand, that I stipulated, but there is additional evidence that goes to my defense.
Prosecutor: His motives are irrelevent,
Judge: Do you believe the government proved by stipulation, that the burden was removed.
Seitz: That does not mean that there was not motive, which you have stripped us of.
Judge:That is a completely different matter
Seitz: I believe that the government believes that, but our interpretation is different.
Judge: (to the prosecution) (questions how this happened that there is this misunderstanding.
Prosecutor: I wasn’t present, I didn’t do this. (this prosecutor is new on the case)
Judge: Did the government enter into this agreement?
Prosecutor: We believe that paragraph 4 provides all the facts, we have evidence. They believe they have a defense, we disagree.
Judge: We cannot have disagreement as to what the pretrial agreements mean. I am having problems, we do not have a meeting of the minds, no contract, am I missing something here?
Prosecutor: I think there is a meeting, there is an agreement, the defendant wants to raise the why, of course we disagree?J.
Judge: He believes he has a defense, whether or not it is valid, is not the point!
Prosecutor: I don’t see it, you can decide.
Judge: But as to this defense, you have to treat it as a guilt admission, you don’t shortcut the system
Prosecutor: I don’t see how this is shortcutting the system. I don’t see it , he has plead guilty
Seitz: He has always pled NOT
guilty, but stipulated to the fact. He believes he is entitled to plead not guilty
Judge: He has stipulated to fact
Seitz: We will not come to the same conclusion as you
Judge: How does his subjective belief fit into this? He did this deliberately, he has made this argument all along
Judge: I understand, he stipulated to the material elements.
Seitz: He stipulated to the facts, but not to intent.
Prosecutor: We need additional time. At least 15 minutes.
Judge: Do you understand my problem? There is a material misunderstanding. You believe that it fits a guilt. The defense does not believe that
Prosecutor: What part doesn’t he understand?
Judge: That he had a duty, one the intent element, Lt Watada, didn’t think he: he had a duty, because he doesn’t have the legal duty because he believes the war is unlawful, is that what you believe Ehren?
Ehren:“Yes your honor”.
Judge: It’s the intent element, it’s 12:45, give you 15 minutes to come back, with a meeting of the minds, I see no meeting of the minds, an inconsistancy of fact, I cannot accept the prosecutors’ evidence 4, as it stands. We will have to set a retrial date. Back in 15.
Judge: What does that mean to you, that document?(addressing Ehren)
Ehren: It means to get on the bus and board the plane.
Judge: What did you understand that to mean? What does that mean to you?
Ehren: To me sir in means to participate in war crimes.
Judge: Do you believe it (what you signed admitting missing in movement) is a stip to guilt?
Ehren: No (S) only sitipulation to fact.
Judge: How can I accept this when the defense doesn’t accept it as a stipulation of guilt?
Prosecutor: If he has evidence to present, then of course he could present that evidence
Judge: Stipulation of fact, please read further. This is a stip of fact, as to charge there of,the defense doesn’t agree to.
Prosecutor: It is stip of fact
Judge: Prosecutor is disputing stip to fact. Close the case, do you wish to reopen it, at this point you don’t have evidence? You have rested your case
Prosecutor: We are not prepared, we need a recess,
Judge: I will allow you to reopen it because no defense has been presented.
Prosecutor: if we were to procede forward, what would the instuctions be to the jury concerning this
Judge: I would instruct to ignore it. (what has occurred today)
Prosecutor: 30 minutes requested.
Judge: Let’s take up the stipulation of fact on the record, I do believe this is a stipulation of guilt, so I agree, they have the right to withdraw.
Seitz: No I will not withdraw (refuses to take back the stipulation of FACT that Ehren missed movement, this does NOT go to intent)
Judge: I will entertain motion to mistrial, there is room to come to an agreement which will allow for the trial to be taken up again. Even a tangible reading, every statement, I did not intend to employ. What we are left with I can instruct the government, should you wish to go forward.
Prosecutor: move to mistrial.
Judge: March 19 set.
Prosecutor: We have other trials, we don’t have time
Judge: You’ll have to GET ready, give good cause to delay.
Prosecutor: Lt. Watada is not the only case, at least wait till May ?th, that is a possibility,
Judge: No I will set March , come back later and give good reason, do you have witnesses available 19th March
Prosecutor: Yes In writing please
Judge: Yes absolutely, I will rule in writing. The date is Feb, 7, counsel, when do you think you can prepare for this date? Check your office,
Seitz: Won’t be back in office til Feb 21, give me til Feb 23 to respond
Judge: Cpt Kim, will you be available? Give you til 23 of Febrary to respond. That will be the due date for any continuances. This case moves to the top of the docket. And, if you have other army cases who need your attention, you need to contact those judges concerning this matter. This issue needs to be solved soon. You are not free to talk to anyone, thank you for your service.
You may not talk to any one.
The government motion to grant mistrial is granted. Motion to resume March 19,