Before anyone ever heard of Terry Lakin, there was Ehren Watada, the young lieutenant who defied President Bush and challenged the United States Army over the invasion of Iraq. Though the campaign began before this former Eagle Scout decided to join the Army as a commissioned officer, he took his chances anyway. Then on 7 June 2006, Lt. Watada became the first commissioned U.S. military officer to risk a general court martial by publicly refusing to deploy as ordered to Iraq based on an argument that the war was “illegal and immoral.”
I have a legal and ethical obligation to speak out against, and refuse to fight, this patently illegal war in Iraq. Ehren Watada
A graduate of Punahou, Watada then transferred in his sophomore year to Kalani High School, where he played on the varsity football team. he then graduated from Hawaii Pacific University in 2003, magna cum laude with a degree in finance. This young man has always been a high achiever and well acquainted with delivering excellence in a timely manner. In an article published in the New York Times on 23 July 2006, John Kifner and Timothy Egan reported that when Lt. Watada’s mother, Carolyn Ho, learned of his decision, she was,
caught off guard, because her son had always admired the Army.
In fact he was so eager to join that he forked out $800 for a special medical test to prove he qualified despite childhood asthma. Watada did all that the Army asked of him, that is until deployment to Iraq as a next assignment became a hard reality, then his personal drama with it began.
Therefore, 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. 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.
When Lt. Ehren Watada released a video press announcement of his refusal to deploy to Iraq. He argued that the invasion was in violation of international law, as well as American law.
Any participation would make me party to war crimes. Ehren Watada
Consequently, the next day, Lt. Watada was charged with three counts of “conduct unbecoming an officer”, and two counts of “contempt toward officials.”
Ehren Watada is not a pacifist and he did try to offer an alternative solution to his objection of Iraq, by volunteering to serve in Afghanistan, but was turned down. To a civilian mindset, this may sound like a reasonable answer, but not to military ears. Certainly other soldiers in Lt. Watada’s command would have preferred to trade Afghanistan for Iraq, but regardless of what nation it defends, the nature of any military is and always has been, about sacrifice. Soldiers and sailors cannot dictate the terms by which they serve. Nor is it their place to argue foreign policy with the Commander in Chief. Soldiers are called in when diplomacy fails. Just as police officers serve warrants and enforce law in the civilian sector of society, it is not their place to question the judge who signed the warrant. So when their country calls, military service members answer, end of story!
Does this mean that I find no value in Lt. Watada’s claim of duty to refuse “illegal orders” of what he believed to be an “illegal war,” not exactly! In fact, Richard Swain, a retired military officer who teaches ethics at the U.S. Military Academy at West Point, testified at Lt. Watada’s trial that,
Officers are under no obligation to follow an order they deem illegal, but if they make that determination, they have to be right. and if they’re not right, they will be held accountable. – Richard Swain, Hal Bernton, 7 Feb. 2007, Seattle Times
As Richard Swain explains, the officer must be “right” about the status of legality with regard to the order that he or she refuses to follow. Was Lt. Watada right or wrong about Iraq as an “illegal” invasion? Some people say yes, others say no; persuasive arguments can be made to support both positions. However, the question of legitimacy with regard to the U.S. led invasion of Iraq was certainly not settled at Watada’s court martial. Yet, one fact became very clear to many of Watada’s supporters during this time. There is a difference between the public exercise of constitutional “rights” as enjoyed by civilians and what is allowed for active duty service members. When military “rights and duties” are interpreted within the context of civilian “rights and duties,” a problem of misunderstanding is bound to occur in translation.
Furthermore, though I do not discount Ehren Watada’s “belief” that the U.S. led invasion of Iraq was an “illegal,” act of aggression, another motive did emerge at his court martial. LTC. William James, one of Lt. Watada’s senior officers, testified that the Lt. had expressed in writing no desire to be a “tool” for the Bush administration. Consequently, LTC. James considered Watada’s statement to be in “direct conflict” with his “beliefs” and that is why his request for deployment to Afghanistan was refused. Hal Bernton, 7 Feb. 2007, Seattle Times
When that did not work, Ehren Watada was willing to face a nonjudicial hearing, accept a reprimand and even less than honorable discharge. Nonetheless, because his unit had been designated as ‘stop-loss,’ these solutions were also denied. During times of war, ‘stop loss’ is a policy implemented by the Dept. of Defense to halt separation of military personnel when concern arises about shortages of trained troops available to satisfy the needs of the mission. At one point the Army did appear to offer a compromise by suggesting a desk job in Iraq with only a remote possibility of direct combat involvement, but Lt. Watada declined the offer. He asserted that the purpose of his protest was not about combat, but simply about the “dishonesty” and “lawlessness” used by the Bush administration to justify the invasion. This was a wise decision as I suspect Watada was being tested.
At this time, I will be upfront about my own position with regard to Lt. Watada’s claim that the “legality” or “illegality” of the Iraq war, or any war, would be a valid determination that he, as a commissioned officer, was entitled to make. Though I have tried, I cannot see the logic and truth of this argument. Nevertheless, I do believe that in the near future we will all be challenged with a different reality of collectivist tyranny where this dispute will have whole new meaning. Therefore, I do not want to dismiss it altogether and will expand on that challenge in Part 3.
On the other hand, I think that LTC. Terry Lakin’s challenge to President Obama over his birth certificate exposed a fraud in the White House, plain and simple. Terry Lakin’s “position of conscience” I can back without hesitation. It was Lakin’s “right and duty” to make sure that the Commander in Chief had a “right” to send American troops to fight and die in Afghanistan and shame on those higher up in the Chain of Command who failed to do the same!! Shame on Congress!! Shame on the Supreme Court!! Most of all Shame on the Press!! Some people will agree with me and others will not. I am not looking for a fan club! Notwithstanding my opinion, I have tried to be fair and respectful to both Ehren Watada and Terry Lakin, because they deserve no less.
Did Ehren Watada Go Too Far?
At a Veterans for Peace rally in Seattle, on 12 Aug. 2006, Lt. Ehren Watada changed the conversation from a simple refusal to participate in what he believed was an “unjust” and “immoral” war based on an initial “act of conscience” to one of advocacy.
If soldiers realized this war is contrary to what the Constitution extols, if they stood up and threw their weapons down, no president could ever again initiate a war of choice. When we say ‘against all enemies, foreign and domestic,’ what if our elected leaders become the enemy? Ehren Watada,
So the “Dogs of War” do not want to be chained? This call to inaction may sound like a daisy placed into the barrel of a gun, but I agree with those who argue that it subverts the entire premise that the U.S. military was designed to be controlled by civilian authority. Though Lt. Watada’s suggestion may have been motivated by good intentions, once a precedent has been set, sooner or later deviant individuals obsessed with the need to obtain power and apply pressure, will change the nation’s course from that of a positive trajectory filled with noble ambitions to one that descends into totalitarian control. John Lennon’s “Just Imagine” would then become a bad trip that never ends.
Regardless of arguments for or against the legitimacy of the Iraq War, conscription ended in 1973. Since that time, all service members, have been volunteers. This fact cannot be dismissed. Soldiers cannot choose their battles, they are sent where they are needed. Do the orders always make sense, HECK NO! When I was a child, my father once told me that when you are ordered to jump (not off a cliff),
You do not ask why, but rather how high?
brown with blood and broken bodies of fallen men.
Who had time to stop and think? When he was shot, an older man picked him up and helped him to shore. Was it a young Lt. like Ehren Watada watching over him? Perhaps! After all, that is one of the many duties of officers and non commissioned officers (NCO)s. Yet, I have always believed that angels operate on both sides of the battlefield.
Many years later, I was born.
In this article I will:
- Compare and contrast the media coverage between the Watada and Lakin cases.
- Examine organizations that supported the two officers
- Compare and contrast the court martial proceedings between the Watada and Lakin cases.
Unlike the case of LTC. Terry Lakin, that of Ehren Watada was not unique and by that factor far more people could identify and support his cause. During the Vietnam and the First Gulf Wars, other dissenting service members also refused to fight, but unlike Lt. Watada who tried to offer other solutions and was willing to face a court martial, most fled to Canada or whatever country would take them. At least Ehren Watada stood his ground and gave a great show! Whether you agree with the young Lt., the older LTC., both or neither, they should be equally applauded for their moral courage.
When he learned that he would be shipped to Iraq, Lt. Watada began to read everything he could find about the war, on all sides, so that he could better motivate the troops under his command. Jeremy Brecher and Brendan Smith, The Nation. Also unlike the Terry Lakin court martial, I did not have the Watada transcripts for review. However, because Lt. Watada claimed these as valuable sources of information that opened his eyes concerning the truth of Iraq as an “illegal” and “unjustified” invasion, I read Pretext for War: 9/11, Iraq, and the Abuse of America’s Intelligence Agencies, by James Bamford and Chain of Command, by Seymour M. Hersh.
Just what Lt. Watada read that was “supportive” or “on all sides” other than that of the anti war position, I do not know. I could find nothing listed in the many articles that I read about his case. However, for those sources of insight that were listed, I found their merit as materials of inspiration to “better motivate the troops under his command” highly questionable.
Unfortunately, Part 2 has taken longer then I expected, so for those who have been waiting, thank you for your patience. It is always a challenge to provoke meaningful thought and open polite discourse among those on both sides of the political spectrum. When it comes to our future as freedom loving individuals, I think that we should make an effort to understand just what is required of our men and women in uniform and how they are expected to defend this nation.
A distinction must be made when referring to media coverage between that of professional or supposedly “unbiased” mainstream news (MSM) and special interest (SI).
When Ehren Watada publicly announced his decision not to deploy with his unit to Iraq, a whirlwind of support was unleashed from those who had been protesting the invasion of Iraq since 2003. Finally an active member of the military, an officer yet, ordered to deploy to Iraq was standing up and speaking out for the cause. They would focus a bright spot light on their new superstar!
MSM – I cannot list them all, so I am only listing the most affectively disseminated, thoroughly circulated and widely read publications, viewed and listened to television and radio news networks in the United States.
With hometown newspapers, from Honolulu and Greeley Colorado taken into account, the disparity of national coverage from well established news networks and publications between the Watada and Lakin cases is revealing and downright disgusting! CNN (Censored/Communist or Cresent News Network) – my view anyway) did not seem to think that either story deserved much attention and I did not waste my time with MSNBC. Yet, I was stunned that Fox News reported on the Terry Lakin case just once. When they did, it was with the kind of article that I would expect from MSNBC. To be fair though, Fox did a number of commentaries with two of their senior military analysts, retired Lieutenant ( LTG) Thomas G. McInerney and retired Major General (MG) Paul E. Vallely, both of whom were very supportive of LTC. Lakin. On the other hand, Fox made sure that Lt. Watada’s story was well presented. Even more bizarre, Glenn Beck’s “The Blaze” ignored LTC. Lakin altogether! As a kick in the pants, the liberal Huffington Post was more generous about covering Lakin’s case than it was with that of Ehren Watada and Brightbart News did only one article on Terry Lakin but ignored Lt. Watada altogether. It is important to note that the last three news organizations, The Blaze, The Huffington Post and Breitbart News are at this time still Internet based.’
Certainly, I have not included the entire press, but the ones listed are among the most influential publications and news organizations in the United States. You can see which story was considered more news worthy. Also, Ehren Watada was treated with far more dignity and respect than Terry Lakin. Even the Lt. must acknowledge that the good doctor was pretty much ignored, ridiculed and trashed.
It is important to note that both Lt. Watada and LTC. Lakin still enjoy many individual supporters, as well as critics. In this section I only refer to groups and organizations that offered additional media coverage of their own, organized visible public support and aided in legal fees through fund raising efforts. Most of Ehren Watada’s supporters had been established and well organized since the Vietnam War. Where as, Terry Lakin’s supporters primarily consisted of groups that had only recently arisen as a result of Barack Obama’s questionable eligibility under the Constitution to serve as President of the United States (POTUS).
- Asian Americans for Peace and Justice – Organized and hosted by a number of speaking engagements during the long period that Lt. Watada awaited trial.
- The American Civil Liberties Union (ACLU) – Touts itself as a nonpartisan, non-profit organization with a mission,
The ACLU is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country. ACLU.org
The ACLU works through litigation, lobbying and community education. It was established in 1920 by Roger Nash Baldwin (1884-1981), who served as its executive director until 1950 and Crystal Eastman, an attorney activist.
Now for the down and dirty on the ACLU:
- It opposes virtually all post-9/11 national security measures enacted by the U.S. government
- It is a key member of the open borders lobby
- It opposes virtually every traditional American value
Roger Baldwin was a socialist who suggested subterfuge as the preferable means to promote his political agendas in the United States. In a private letter (PDF) to journalist/activist Louis Lochner in 1917, Baldwin wrote:
Do steer away from making it look like a Socialist enterprise. We want to look like patriots in everything we do. We want to get a lot of flags, talk a good deal about the Constitution and what our forefathers wanted to make of this country, and to show that we are really the folks that really stand for the spirit of our institutions.
In the ACLU’s early years, Baldwin hailed the Russia of Lenin and Stalin as,
A great laboratory of social experimentation of incalculable value to the development of the world.
In 1928 Baldwin told his allies,
I am for socialism, disarmament, and ultimately for abolishing the state itself as an instrument of violence and compulsion. I seek social ownership of all property, the abolition of the propertied class, and sole control by those who produce wealth. Communism is the goal.
NOTE – This quote can be found in two variants on the Internet with regard to wording “sole control by those who produce wealth” and “sole control of those who produce wealth”. The words “of” and “by” have two different meanings, but if Communism is the goal then “by” doesn’t really work unless corporate fascism comes into play.
In an article published by Alan Sears in World Net Daily on 25 Aug. 2005 much of what is not commonly known about the ACLU is revealed. From the very beginning the real mission of the ACLU was to destroy America, her freedom and her values. As early as 1931, the U.S. Congress was alarmed by the ACLU’s devotion to communism. A report by the Special House Committee to Investigate Communist Activities stated,
The American Civil Liberties Union is closely affiliated with the Communist Movement in the United States, and fully 90 percent of its efforts are on behalf of Communists who have come into conflict with the law. It claims to stand for free speech, free press and free assembly, but it is quite apparent that the main function of the ACLU is an attempt to protect the communists.PDF,The‘AntiChristian Liberties’ Union (ACLU) – NJIAT
While many accept the ACLU as a mainstream organization, their history tells a drastically different story. The Alliance Defense Fund is dedicated to exposing the myth that the ACLU is working hard for the First Amendment rights of Americans. Instead of being an organization that simply took a “wrong turn,” the ACLU has devoted itself from the very beginning to the devastation of America’s most cherished traditions, values, and laws. – Alan Sears, 25 Aug. 2005, WND
- Not in Our Name (NION) – NION was founded on 23 Mar. 2002, to publicly denounce all subsequent U.S. government policies, both foreign and domestic, that resulted In the wake of the 9/11 attacks. As a self-described “peace movement” it was initiated by longtime Maoist activist and Revolutionary Communist Party (RCP) member C. Clark Kissinger.
NION considers America’s declared war on terrorism as nothing more than a fraudulent pretext for world conquest by a power-hungry Bush administration. That President Bush may have used the attacks of 9/11 as a convenient pretext to deal with Saddam Hussein does seem to have some merit, which I will address in Part 3. However, groups like this really don’t care about how the Iraqi people suffered under such a vicious dictator. After all, anyone that could embrace Mao Tse-tung and dismiss the atrocities that he committed would hardly be concerned about Saddam Hussein’s inhumanity!
Once the Iraq War was underway, nothing the American military could do was worthy of praise by this loathsome organization. Consider, for example, NION’s response to the December 2003 capture of former Iraqi President Saddam Hussein by U.S. forces:
This ‘new development’ in the ‘war on terrorism’ does not change the fact that this war is immoral, unjust, and illegitimate. It does not change the violations of international law, the lies used to justify the war … or the tens of thousands of Iraqi lives stolen, or the hundreds of U.S. lives lost…. And as they talk about finally seeking justice for the Iraqi people by putting Saddam on trial, they will conveniently leave out any mention of the crimes done to the Iraqi people by the United States.… It was the U.S.-led sanctions that killed over half a million Iraqi children since 1990. Who will put the U.S. administration on rial for war crimes?www.refuseandresist.org
NION closed its national office and related infrastructure (for now), on 31 March 2008. However, make no mistake, when this nation is attacked again, NION or some other like minded group will be there to defend our enemies and spew venom on the United States of America and it’s military, because for people like C. Clark Kissinger, Capitalism is the real villain.
- Democracy Now – A progressive left-wing flagship of the Pacifica Radio network. Its aim is to provide, perspectives rarely heard (except at college campuses) in the U.S. corporate-sponsored media
In other words, the views of radical and foreign journalists, left and labor activists, and ideological foes of Capitalism every where. As of 2009, this morning weekday news cast could be heard on at least 800 radio stations in the U.S. and Canada, and on a number of additional stations in Europe, Australia, Mexico, and South America. Democracy Now is hosted by co founder Amy Goodman who often speaks at anti U.S. and anti Israel rallies. Regardless of opposing perspectives, one value with which I am in complete agreement with this organization is on their statement that,
For true democracy to work, people need easy access to independent, diverse sources of news and information.
- Courage to Resist – Primarily focuses on supporting public GI resisters, the organization also strives to provide political, emotional, and material support to all military objectors critical of our government’s current policies of “empire.”
Perhaps in the not to distant future the day will come when even I will stand against U.S. military participation in a preemptive or questionable act of aggression, especially if it is given a full blessing by the international community. However, even then I would caution military members against any affiliation with organizations that encourage and abet acts of desertion and mutiny.
- Amnesty International (AI) – Draws attention to human rights abuses and campaigns for compliance with international laws and standards. It works to mobilize public opinion to put pressure on governments that let abuse take place. In the “Who We Are” section of their website they declare,
Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. We are independent of any government, political ideology, economic interest or religion, and are funded mainly by our membership and public donations.
AI’s statement of support for Lt. Watada:
USA: Conviction of war objector would violate international rights – Press Release
However, it appears that AI has lost it’s way, so lets take a good look at it’s track record in recent years.
- AI aims a disproportionate share of its criticism for human rights violations at the United States and Israel
- Often accuses the U.S. and Israel of war crimes
With credit given for their good works in the past, some now argue that over the years this organization has transformed into just another voice of the globalist Left. For more juicy information on AI without all the hype:
Soft on tyrants and terrorists and hard on the free nations that confront them, AI has squandered its reputation as an impartial advocate for human rights. – Alex Svetlicinli, May 2006, Amnesty International’s Gulag Confusion, PDF file
Amnesty International (AI) represents itself as a human rights watchdog organization that likes to style itself “the world’s largest private human rights organization.” Up to a point, it is. It has done valuable work in many countries on behalf of human rights and has shown light upon abuses of those rights in many a dark corner of the world. But Amnesty International has never restricted itself to protection of civil rights. It has long been a highly politicized organization that has ties with and identifies with the political agenda of the left. In particular, it has vehement anti-American and anti-Israel political biases. This leftist orientation has resulted in AI acting less and less as a human rights watchdog, and more and more as an anti-American and anti-Israel pit bull. – Steven Plaut, 2 June 2003, FrontPageMagazine.com
In this article, Adrian Karatnycky and Arch Puddington discuss the response of human-rights organizations, including Amnesty International and Human Rights Watch, to the terrorist attacks of September 11. They look at how most of the human-rights community has treated the question of terrorism in general in recent years, and also how it has treated the U.S.
Major human-rights organizations argue that the term ‘terrorism’ lacks a clear definition in international law—which happens not to be the case. – Adrian Karatnycky and Arch Puddington, March 2002, The Human-Rights Lobby Meets Terrorism, PDF file
In 2007, Amnesty International singled out Israel for more condemnation than Syria, Saudi Arabia, Libya, Lebanon, and Algeria. More items were published condemning Israel, than the Palestinian Authority, Hamas and Hezbollah combined. – NGO Monitor, 27 May 2008, Review of Amnesty International in 2007: Attacking Democracy instead of Oppression in Middle East
Amnesty International’s new website headlines the statement,
Stop the human rights meltdown.
Make human rights real.
However, detailed and systematic research published by NGO Monitor and others, and cited by the Economist and the Wall Street Journal, have demonstrated that this “meltdown” has resulted from the failures of NGO superpowers. Amnesty’s only researcher for Israel and the Palestinian territories, Donatella Rovera shares the responsibility for this situation. – Sarah Mandel, 20 Dec. 2007, Amnesty’s “Human Rights Meltdown”
Former Gitmo detainee Moazzam Begg is a committed jihadist and unabashed supporter of the Taliban. (See this Weekly Standard essay by Tom Joscelyn, which collects other Begg links.) In the fashion of CAIR — a creation of the Muslim Brotherhood formed to support its causes, such as Hamas, in the camouflage of a “civil rights” organization — Begg shrewdly realized he could win fawning admirers and allies on the Left by posing as a human rights activist. So he formed a group in Britain, Cageprisoners, which claims to be a civil rights organization whle promoting the Islamist agenda — and aligning with such other anti-American jihadist terrorists as would-be Christmas bomber Umar Abdulmutallab and Anwar al-Awlaki (an imam to some of the 9/11 hijackers and an inspiration to both Abdulmutallab and Fort Hood mass-murderer Nidal Hasan). – Andrew McCarthy, 3 April 2010, Amnesty International Comes out of the Closet: Endorses “Defensive” Jihad
Veterans For Peace (VFP) – Founded in 1985, this organization consists of U.S. military veterans from all wars and conflicts since World War II. Though their main mission is to promote alternatives to war, they also:
- Supported the Marxist Sandinista regime in Nicaragua in the 1980’s
- Oppose the U.S. embargo of Cuba
- VFP Seeks,
To protect our civil liberties threatened by the ‘Patriot Act’ and other repressive legislation
I could go on and on but you get the idea. Anyway, these are just a few of the primary players that supported Lt. Watada in his time of need. Certainly the voices of many other everyday Americans were also raised in his defense and I stand by their right to argue against the invasion. To question is always a good thing. Question the President, the Congress, absolutely! Why not question the United Nations? Why do so many anti war activists attack the motives and honor of this nation, but not the U.N.? Sure there is room for criticism, whether it be the United States or any other country but Americans are not imperialists! The United States has made mistakes but it is a great nation founded on noble principles. Where is all that oil that we were accused of fighting so hard to exploit from Iraq and Vietnam?
At this time I want to thank Jamie Glazov, New Zealand research blogger Trevor Laudon and former Commie turned intellectual conservative activist David Horowitz (he saw the Right) for their hard work and dedication to reveal the truth about so many individuals and organizations that strive to deceive us.
- American Patriot Foundation (APF) – Also referred to as Safeguard Our Constitution, this organization was founded on the uncertainty of Barack Obama’s questionable identity, citizenship status and constitutional eligibility to hold office as President. As a new foundation, it jumped at the opportunity to defend the U.S. Constitution through LTC. Terry Lakin. APF paid the legal fees of Paul Rolf Jensen and Neal Puckett through the Terry Lakin Action Fund.
This was the only fund authorized directly by Dr. Lakin to pay his legal efforts and support his family when he was in prison. Even though Dr. Lakin’s ordeal with the Army is over, his family will continue to feel financial pain through the loss of their savings, his pension and benefits for years to come. Furthermore, after prison, when Dr. Lakin tried to establish himself in the civilian community and renew his medical license in Topeka, Kansas, it was suspiciously denied.
They hammered me for my political views. Terry Lakin
The board repeatedly refused comment on their decision, but when KCTV 5, a local station in Kansas City checked the transcript of Dr. Lakin’s case, they discovered that board members were in no way concerned with Lakin’s 18-year spotless medical record. Yet, what they did find was that in 2008, the Kansas Board of Healing Arts (KSBHA)
approved the license of another doctor with a history of medical mistakes and malpractice payouts. One patient died after a drill mishap in the operating room. A surgical error caused repeated electrical shocks to a second patient. And a third patient wasn’t even that doctor’s patient. The physician didn’t notice, ended up performing brain surgery on the wrong man and caused permanent damage. 15 May 2012, Kelly Just KCTV 5
Since the board refused KCTV 5’s repeated requests for an interview about their decisions between these two cases, Dr. Art Caplan, a renowned University of Pennsylvania medical ethicist, agreed to weigh in on the situation. What, if anything came of that I do not know, because I could find no further information on the subject.
Political beliefs, I think, should play no role. Dr. Art Caplan
At least one little local news station in America remains uncorrupted! With that thought in mind, should I ever visit Topeka, Kansas, I hope never to have need of a physician, since we see what kind of individuals that KSBHA prefers to license!
However, Topeka’s loss is Colorado’s gain, Dr. Lakin is now licensed to practice family medicine in the city of Pueblo and enjoys a good life with his family and friends.
- Taxed Enough Already, (TEA) – The TEA Party is an ongoing, nationwide mainstream movement of grassroots protesters, encompassing millions of individuals and thousands of self organizing groups, all united in accomplishing a single goal: to return fiscal responsibility and limited government to the United States through the exercise of political activism. Conservapedia
In a riveting essay published in Foreign Affairs in 2011, Walter Russell Mead analyzed the foreign policy of this movement in two camps:
Jacksonian populists who combine a belief in American Exceptionalism and its role in the world with skepticism of America’s ability to create a liberal world order.” When necessary, they favor total war and unconditional surrender over limited wars for limited goals.
- Ron Paul “Paulites” have a Jeffersonian approach that seeks to avoid foreign military involvement.
- Sarah Palin, personifies the other group, which Mead refers to as “Palinites.” The position of this group prefers to avoid being drawn into unnecessary conflicts, but when it can’t be avoided, they favor a more aggressive response so that America’s primacy in international relations will be maintained.
Mead identifies both groups as sharing a distaste for “liberal internationalism.” Wikipedia
- ATLAH Media Network – Through “The Manning Report” James David Manning, chief pastor at the All The Land Anointed Holy, (ATLAH) World Missionary Church, located on 123rd Street in New York City, offered as much support as he could for LTC. Lakin, before, during and after his court martial, which Dr, Manning attended. The congregation of this African American church has been dynamic in spreading the gospel of Jesus Christ in their community. Through their Internet broadcasts, ATLAH’s impact has become global.
Formerly known in Harlem as the Bethelite Missionary Baptist Church, the name was changed to ATLAH when James Manning became it’s leader in 1981. A strong critic of Barack Obama’s constitutional eligibility to serve as president, Dr. Manning also overseas the ATLAH Theological Seminary, which offers classes on preaching and prophecy. Sometimes in conflict with neighboring churches, as not all of Harlem agrees with him about Obama, this African American pastor is ‘old school’ Jesus Christ gospel and a lover of the Constitution.
Unlike other supporters, on the second day of Terry Lakin’s trial the Army’s treatment of Dr. Manning and his team was bizarre! Check out his testimony of what happened. Did anything like this happen to any of Lt. Watada’s supporters? I looked but could find no evidence of such disrespect and hindrance.
James David Manning is an increasingly rare type of pastor in the African American community. He preaches a Gospel that leaves race out of the “equal justice” equation. In reference to the George Zimmerman trial, he instructed his congregation that it is wrong to view the world through their “black eyes” and start looking at it through the “blood of Jesus”. 18 July 2013, Jason Howerton, The Blaze
What a great message!
Then I Found This Ridiculous Video!!
This sermon is so outrageous and absent of the Holy Spirit, that even I had to laugh and cannot ignore it. The logic and truth in this well meant but rambling monologue is terribly flawed and racist. The graphic detail in which he mentions Tony Morrison’s book The Bluest Eye is amusing as he delivers his message with a straight face. Oh dear, not exactly what I would expect, or hope to hear from a pastor on Sunday morning. Thankfully, I have found no other sermons like this one. Yes, sometimes even religious leaders make mistakes, as far as I am concerned, this is one of Manning’s. Honor killing is honorable? Unbelievable!! Come on Dr. Manning, get a grip!
- Opinions and Armpits – A group of concerned citizens who did what they could by setting up a site that sold t-shirts and mugs with such messages as “all he wanted was the truth, instead he got prison” allprofits went to support LTC. Lakin.
Public Announcement of Intent to Defy Orders
Since so many similarities exist between these two cases, shall we start from the beginning with the way that both Lt. Ehren Watada and LTC. Terry Lakin announced their intention to challenge a system in which their “rights” were very limited.
On 7 June 2006, Lt. Ehren Watada presented a public video announcement on YouTube about his intent to refuse orders to deploy to Iraq, because the war was “illegal” “immoral” and “unconstitutional.” As a result, Watada argued that he was forced to uphold the oath that he took to “preserve and protect” the Constitution by refusing to obey such orders as “illegal”.
Throughout the trial period Lt. Watada’s previous glowing job performance evaluations remained a strength in his favor. When Lt. Watada made public speeches about his belief that the Iraq War was illegal and denounced President Bush as a “criminal,” the Army slapped a “Conduct Unbecoming of an Officer and Gentleman” charge on him, but never did they touch his prior job performance evaluations to reflect lies about his ability and character. In fact, the Lt.’s job performance report card remained a strength that the press emphasized often.
On 30 March, 2010, LTC. Terry Lakin posted a public announcement video on YouTube of his intent to disobey what he believed to be “illegal orders”, because President Barack Obama had not satisfactorily proven his constitutional eligibility to hold presidential office and act as Commander in Chief. Lakin argued that since “all orders have their origin with the Commander in Chief” he was forced to uphold the oath that he took to “preserve and protect” the Constitution by refusing to obey such orders as “illegal,” until proven otherwise.
Unlike Ehren Watada, Terry Lakin’s job performance evaluation was adjusted. As reported on 15 June 2010, by Bob Unruh of WND, it was rewritten from one with rave reviews of excellence and recommendation for promotion, to one that reflected mediocrity and poor judgment. Perhaps in the view of Lakin’s superiors, to challenge Barack Obama’s identity and right to send our troops to die in Afghanistan certainly was poor judgment. So with regard to this issue, why was LTC. Lakin treated with less respect than Lt. Watada?
It is good to remember that within the military’s structure and traditions breaths the heart of a a political beast. By this statement, I do not mean that the military dabbles in the nation’s political machine, but rather that it is still composed of flawed human beings with the same strengths and weaknesses as anyone else. Therefore, regardless of a strong sense of focus and determination among it’s members to “serve and protect,” concerns of career survival and development will often arise. Consequently, the dynamics of particular policies launched and attitudes formed within a command, will often be reflected.
Detention Before Trial
Neither LTC. Lakin, nor Lt. Watada were held in detention during their court martial process. Ehren Watada lived in an apartment off base and Terry Lakin returned home to his wife and children every night. One of the more interesting and obvious differences between these two cases is that regardless of Lt. Watada’s numerous public speeches and media appearances he was never incarcerated, under house arrest or to my knowledge, under any gag order. In contrast, Dr. Lakin was assigned an escort “to assure his presence at trial”, but I suspect that the insult was motivated by an effort to isolate him from the possibility of meeting with any true news professionals who might have actually cared.
Watada and Lakin Court Martials
- Article 32 Hearing (Military version of a Grand Jury)
Unless waived by the accused, a pretrial investigation is required under Article 32 of the Uniform Code of Military Justice (UCMJ), before a case moves forward to a general court-martial.
such investigation shall include inquiry as to the truth of the matter set forth in the charges, consideration of the form of charges and recommendation as to the disposition which should be made of the case in the interest of justice and discipline.
Now with “truth of the matter set forth in the charges raised”, both Watada and Lakin may have mistakenly interpreted this as an opportunity to expose “truth” both ways, the “truth” they were fighting for, as well as “truth” that satisfies the Army.
It’s not our intention to put the war on trial, but the nature of the trial makes it necessary. We want the Army to get an idea about the kind of testimony we are going to be presenting at trial, if Watada’s case proceeds to a court-martial. Eric Seitz – 17 Aug. 2006, Mike Barber, Seattle PI
Lt. Watada’s original civilian legal counselor was Eric Seitz, a well respected attorney from Honolulu, who according to an article published on 6 Apr. 2007, in the Seattle Times, largely dedicated his services “for free.” Bravo Mr. Seitz!! The military lawyer assigned to the case was Capt. Mark Kim. One of the first things that jumped out at me about the difference between these two cases is that unlike Lt. Watada’s attorneys who were pretty much on the same ‘sheet of music’ and worked together as a team with a united focus, LTC. Lakin’s defense team did not.
From the beginning Jensen and Kemkes had different agendas. Jensen wanted to get at Obama’s eligibility; Kemkes wanted to get me off the hook. These strategies were at odds with each other. In addition, any number of outside attorneys offered advice. Terry Lakin, Officer’s Oath, pg. 87
The Army initially preferred seven specifications of various offenses under the UCMJ, against Lt. Watada, but before the trial began only three remained and were sent forward:
- Conduct Unbecoming an Officer and a Gentleman (for statements made in speeches and interviews) (Article 133) – 2 counts
- Missing Movement (for refusing to deploy to Iraq) (Article 87) – 1 count
On the charges of “Conduct Unbecoming an Officer and a Gentleman” Lt. Watada’s attorney Eric Seitz was “surprised” and “somewhat astounded?” As reported on 6 July in the Seattle Times, by staff writer Hal Burton, Mr. Seitz raised issues about Lt. Watada’s First Amendment rights.
Well, we expected him to be charged with missing movement or violating an order to get on a bus to accompany his unit to Iraq. We did not really anticipate that they would charge him with additional offenses based upon the comments and the remarks that he’s made. And that opens up a whole new chapter in this proceeding, because what the Army has clearly tried to do by the nature of these charges is send out a message to people in the military, that if you criticize the war and if you criticize the decisions that were made to bring the United States into this war, that you, too, could be charged with disloyalty, contemptuous remarks and disrespect for higher officers, and in this case, specifically in this charge, the President. 7 July 2006, Democracy Now
The American Civil Liberties Union (ACLU) even rose to the occasion and filed an amicus brief, claiming that soldiers should not be court martialed for explaining their views.
As much as I hate to date myself here, in the summer of 1974, the presidency of Richard Nixon was in serious trouble. I was very young but already in the Army at that time. Believe me, many of the older women that I worked with had opinions and said plenty, but all of us were warned to “keep our mouths shut!” Mumbling and grumbling may be a fact of life within the lower ranks, but accusations of malice against those of senior rank and national leadership can and will have a detrimental impact on the morale, unit cohesion and readiness of a command. That is why freedom of speech is not quite the same among service members of the Armed Forces as that which civilians enjoy. Soldiers and sailors who have a problem with that fact, really should consider getting out, or at least educate themselves about the “safe/authorized” way to proceed.
In a historic hearing, Lt. Watada presented expert testimony and argued to the investigative officer that because the war in Iraq was initiated without a proper legal basis and was being prosecuted in violation of international law he not only was entitled to refuse to deploy to Iraq but was obligated to do so. 13 Nov. 2006, The Jurist
LTC. Mark Keith, was the investigating officer who presided at Lt. Watada’s unprecedented Article 32 hearing. LTC. Keith allowed Watada’s attorneys to raise the issue of Iraq over the objections of the prosecutor, Capt. Dan Kuecker by calling three expert witnesses to testify about the war’s illegality as justification for the Lt.’s actions:
Francis Boyle, University of Illinois law professor and international law expert testified that the war was illegal because it was not authorized by the U.N. Security Council, and claimed that Congress approved the war on the basis of faulty intelligence.
- Denis Halliday, former United Nations Undersecretary-General
- Ann Wright, Army Col. retired – Known as an expert and instructor of the Army field manual. She became a member of the U.S. Diplomatic Corps, but resigned in 2003 because she too considered the war to be illegal.
Unlike Col. Wright, I was no expert on the Geneva Convention. Yet, there was a time when I too, had to be familiar with it. So I was eager to hear what she had to say in this interview with Bill O’Reilly. His questions about the Iranian hostage crisis of British citizens were good; However, rather then answer them, Ms. Wright tried to change the conversation. Some people may think that O’Reilly was rude and wrong in the way that he treated her, but I disagree. If I want to hear “blame America” “the Bush administration is really the problem” “Americans should see ourselves through the eyes of our enemies,” blah, blah, blah, then I will return to college.
On the other hand, LTC. Lakin’s Article 32 hearing was a very different story. His legal defense team had requested the testimony of Dr. Chiyome Fukino of the Hawaii Dept. of Health, as well as all records concerning the facts surrounding Obama’s birth. In addition, Terry Lakin also requested the testimony of other custodians in charge of Obama’s other records from financial aid, if any existed, with regard to Punahou, Occidental College, Columbia University and Harvard Law School. All were denied!
In an article written by Bob Unruh and published by World Net Daily (WND) on 3 June 2010, LTC. Daniel J. Driscoll, the “investigating officer” charged with the responsibility to determine what, if any evidence, Lakin’s defense team should be allowed to present at the Article 32 hearing, wrote in a memorandum,
In my view our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the president’s credentials on trial. It is my opinion the discovery items pertaining to the president’s credentials are not relevant to the proof of any element of the charges and specifications set forth in the charge sheet. Consequently I will not examine the documents or witnesses pertinent to the president or his credentials to hold office. LTC. Daniel J. Driscoll – Bob Unruh, 3 June 2010, WND
The ruling to deny all discovery requested by LTC. Lakin’s defense team came prior to his scheduled Article 32 event, so Dr. Lakin waived the hearing altogether. Terry Lakin was right, why waste whatever valuable free time he had remaining on a part of the judicial process that did not respect his rights anyway?
This makes it impossible for me to have a fair hearing, Terry Lakin
- Article 39 (Pretrial Hearings and Arraignment)
If after an Article 32 hearing, enough evidence has been presented to support the recommendation of a court martial, then the process proceeds to an Article 39. As with a civilian trial, this part of the procedure permits the military judge to hold informal conferences “off the record/in chambers” or by phone with both the Prosecution and Defense to discuss and coordinate aspects of the trial. During this phase the judge may consider arguments to settle contested legal or procedural issues, such as what witnesses will be heard and new evidence presented. Yet, all contested procedural or legal issues must be resolved in court, on record.
Rules Of Evidence – What evidence is admissible in a court-martial is spelled out in the Military Rules of Evidence (MRE), as required by the UCMJ. Though these rules are closely patterned after the Federal Rules of Evidence used in United States District Courts for civilian cases, they are certain to be different from what most civilian attorneys will expect. Again, it behooves a civilian attorney who wants to represent a service member in the Armed Forces to become well acquainted with the way of the UCMJ.
Other than arguments and opinions from expert witnesses and scholars as presented at his Article 32 hearing, I could find no list of documented evidence requested by Lt. Watada’s defense counsel. Where as, LTC. Lakin’s attorneys submitted a very specific and detailed list of documents, as well as witnesses to Col. Lind, the military judge assigned to preside over his case. Yet, all requests on Lakin’s behalf were denied. I argue that the discovery of these documents and testimony from requested witnesses would have either served to defend this nation against the unthinkable, a usurper/foreign dictator in the White House, or forever silenced all doubt about Barack Obama for good. Instead Dr. Lakin, the U.S. Military and the American people were denied any resolution of the truth and continue to live under a dark cloud!
Arraignment – Here the accused/defendant is informed of the charges against him/her and offered an opportunity to make a plea of guilty or not guilty. If a guilty plea is entered, the judge then ensures that the defendant is acting voluntarily and with complete understanding of the possible consequences. This part of the trial process is open to the public.
The strategy of Lt. Watada’s defense team was to reveal the invasion of Iraq as illegal by arguing:
- That the required congressional approval was granted only on the basis of the existence of weapons of mass destruction (WMDs) supposedly still on Iraqi soil.
- Claimed connection between Saddam Hussein and al-Qaeda was a lie.
- Nuremberg Principles that require soldiers to disobey illegal orders
John M. Head, the judge assigned to the case ruled that Lt. Watada would not be allowed to present any defense based on the Nuremberg principles and further stated that the legality of the Iraq War was for Congress, not his court to decide. So at this point Lt. Watada and LTC. Lakin stood on even ground. Both were prohibited from any defense that could have turned their trials into public spectacles against the U.S. government. As I stated earlier, except for some false hope raised during Lt. Watada’s Article 32 hearing, where a few scholars and expert witnesses were allowed to testify, the arraignment procedure sifted all issues away from the government (the Military’s boss) and down to the simplicity of military concerns.
Was Paul Jensen (LTC. Lakin’s first civilian attorney) aware that Lt. Watada’s argument of duty to refuse illegal orders as based on the Nuremberg Principles, disallowed as a valid defense? Civilian attorneys who want to represent military service members could benefit greatly by reading transcripts of similar court martial cases. Unlike a civilian court, it is rare for the Prosecution to loose a case in this arena.
Both Watada and Lakin were also served by military lawyers, so why were they not warned that a military court would never consider arguments that subject “decisions” by the Commander in Chief or his “eligibility” for review? That a civilian attorney would be unprepared for such restrictions is understandable but Judge Advocate General (JAG) attorneys? My guess is that because both cases were unknown territory for the military courts as well, the JAG lawyers appointed were just as curious as everyone else. Even so, I believe that such knowledge gained from the Watada trial could have served to protect Terry Lakin from some unnecessary heartache. Yet, I do not think that it would have made any difference for Ehren Watada. Why? Lt. Watada was not allowed to substitute Afghanistan for Iraq or to resign his commission, so unlike LTC. Lakin who would gladly have deployed as ordered, Ehren Watada was against a brick wall with no way out but to make his predicament public.
Unlike LTC. Lakin’s 2 day nightmare, Watada’s ordeal was a longer painful journey but he did enjoy well organized and experienced support from numerous anti war organizations, anti George Bush fans and regular people who just admired his courage. According to Zoltan Grossman, Professor at Evergreen State College in Olympia, Washington, an eye witness at the Lt.’s trial,
Defense Attorney Eric Seitz opened with a motion to ask Judge LTC. John Head to consider the Article 32 (indictment) hearing transcript on the Nuremberg defense. The transcript describes the case that he would have offered in the court martial– on the illegality of the Iraq War–if he had been allowed (to put it all on record for an appeal). The motion was denied. The Judge warned Seitz not “to hold a constitutional law class. All the law is going to come from me.”
Seitz then attempted to reopen the witness question, asking the court to reconsider its claim that testimony (by Richard Falk, Denis Halliday, Marjorie Cohn, Michael Ratner, Ray McGovern, LTG Neubold, and others) would be “irrelevant” to the case. Not only did Judge Head deny these witnesses in the trial phase, but even in the sentencing phase. Seitz called these decisions, “almost comical…there is nothing for us to say…an atrocity”. Zoltan Grossman – Notes from inside the Watada Trial
That Judge Head ruled against LTC. Gary Solis, a defense expert witness but allowed a prosecution witness Dr. Richard Swain whose only role had been to rebut Solis!
I admit, this particular ruling to be a bit bizarre, even for the military and can provide no answer. So if anyone reading this article can enlighten us with understanding, please do!
One final observation from Mr. Grossman that is worthy to note,
The media coverage was phenomenal, with three reports on Northwest Cable News 2 CNN, Japanese & German TV, AP,Reuters, etc.
International news networks, interested in Lt. Watada’s story, absolutely!
Justice is not always blind!
There is a very important difference to understand about the perception of justice as known and practiced in military courts and that of civilian. The Military, regardless of whatever nation that it defends is one of the oldest organized institutions on Earth. It’s primary universal mission is to defend and protect. Certainly conquest, is also a historic truth of this institution, but that subject extends far beyond the scope of this article. My point here is that the individual has value, yet that value is always subject to the needs of the mission. The individual is appreciated but always part of a team, a unit, a command. The purpose of the UCMJ is to determine if a breach of discipline has occurred and if so, to promote good order and discipline within the ranks by governing the conduct of service members. Hopefully individual rights and fairness get in there somewhere, but don’t expect too much!
Trial on the Merits
Once the court-martial members are selected, the case is ready to proceed “on the merits,” that is, evidence will be presented about the guilt or innocence of the service member. As with any civilian case, the military prosecutor presents evidence on the charges. The service member or accused may confront this evidence and cross-examine any witnesses. The service member may also present evidence and compel witnesses to appear, that is unless they work for the government.
- Trial of Merit – Day 1
With the jury present on 5 February 2007, Lt. Watada’s court-martial began with his plea of not guilty to all of the remaining charges against him:
- 1 – for missing movement
- 2 – for “conduct unbecoming an officer and a gentleman” which were related to critical comments he made publicly against the Bush administration, as well as the war.
Since LTC. John Head had already ruled in a pretrial motion that the legality of a war is for Congress, not an individual soldier to decide, the argument of Iraq would not be heard. So what was accomplished?
- Lt. Watada carefully reviewed a 12-page pre-trial agreement which affirmed statements he made criticizing the war.
Eli Sanders, an intern for The Stranger.com. was present on the first day of Lt. Watada’s trial and had this to say about what he witnessed.
One of the quietest moments I have ever been witness to in a room full of people, Lt. Watada was asked to read over all twelve pages of his statement- quietly, to himself—before he agreed to them. It takes a long time to read 12 pages. Eli Sanders, 6 Feb. 2007, The Stranger.com
- One defense witness, a Georgetown professor was allowed to testify about freedom of speech in the military.
At the last minute, the judge did agree that the defense could furnish one of their contested witnesses (Professor Gary Solis from Georgetown University), but only on their own dime (normally, the prosecution pays for expert witnesses) and only with a very limited possible area of comment. Seitz said in a press conference afterwards that he wasn’t sure it would be worth it to pay for Solis to get here by tomorrow, given the narrow scope of what he would be allowed to say. Eli Sanders, 6 Feb. 2007, The Stranger.com
- It was determined that Lt. Watada would take the stand in his own defense.
- Jury selected
Selecting The Jury or Members – Court martial members are officers or enlisted persons from the same community or command as the service member who is on trial. However, just as in a civilian trial, the potential individuals selected for this duty are screened by both the Prosecution and Defense for voir dire/bias and challenges, such as the inability to deal with the issues fairly, acquaintance with either party, witnesses or attorneys; occupation which might lead to bias; prejudice against the death penalty; or previous experiences. To be judged by one’s “peers” is not always as comfortable as some people may think, especially within the military, so the “accused” does have the option to let the judge decide. In both the Watada and Lakin cases a jury was involved.
An eye witness to the jury selection process, freelance writer Jane Stillwater, author of Bring Your Own Flak Jacket: Helpful Tips For Touring Today’s Middle East, had this to say about the jury members chosen to decide Lt. Watada’s fate.
The jurors were selected and that is a bit brighter because they were all very well educated, some PhDs and all with at least masters from non-military universities. There was only one officer from West Point. Two were divinity graduates, two had MBAs and two had degrees in psychology, one therapist and one with a degree in history.
I felt okay about these guys and although I think they will have to say he is guilty because of the limited scope of military law, I think they will be open to lenient punishment and then the case will go to appeals where hopefully a more experienced judge will preside. 6 Feb 2007, Jane Stillwater
There were roughly 30 reporters and camerafolk there, about half of whom seemed to be foreign press. There were probably as many people from Japan as there were from the local Seattle area. Eli Sanders, 6 Feb. 2007, The Stranger.com
- Trial of Merit – Day 2
The day began with opening arguments from the Prosecution that declared Lt. Watada had
abandoned his soldiers and disgraced himself and the service
Lead defense attorney, Eric Seitz rebutted that accusation by claiming that his client was acting in good conscience, based on his understanding of the war and military law.
At most, he engaged in an act or form of civil disobedience. No way does that add up to conduct unbecoming an officer. – Eric Seitz, 6 Feb. 2007, by Melanthia Mitchell (AP), Forbes
One of Watada’s commanding officers, LTC. Bruce Antonia, testified that when he learned of the Lt.’s concerns he urged him not to make any public statements. Yet, the next day Lt. Watada released a video announcement, which was played in court.
The wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it’s a contradiction to the Army’s own law of land warfare. My participation would make me a party to war crimes. – Ehren Watada, 6 Feb. 2007, by Melanthia Mitchell (AP), Forbes
Hal Berton of the Seattle Times, 7 Feb. 2007, reported that even though Lt. Watada’s brigade commanders, LTCs. Bruce Antonia and William James knew they had failed to change his perspective on Iraq, that they had reason to believe an understanding had been reached, because “Lt. Watada had given his word.”
In my eyes, I thought it was a mutual understanding between two officers that it not be made public. I told him I was concerned. I did not want this to turn into a big media event. – LTC. Bruce Antonia, Hal Bernton, 7 Feb. 2007, Seattle Times
I was dismayed, probably a little bit betrayed. I believe what he said was that the Commander in Chief made decisions based on lies, that he specifically deceived the American people. That is nowhere in the realm of a lieutenant in the United States Army. –LTC. Bruce Antonia, 6 Feb.2007, Melanthia Mitchell (AP), Washington Post
Even though LTC. Antonia was right, in that it is not the place of an individual soldier, officer or enlisted, to challenge the decisions of the Commander in Chief, it is every soldier’s duty to “protect and defend the Constitution” as sworn by all members of the Armed Forces. Whether misapplied or not, the interpretation of this duty is what made this case so politically and intellectually intriguing, as well as so useful to the anti war crowd in the first place. Interesting how that same argument failed to ignite their concern with respect to LTC. Lakin’s case?
With that platform in mind, Eric Seitz was credited by many present at the trial for conducting a “brilliant” cross-examination of all witnesses produced by the Prosecution and more or less compelled LTC. Antonia to admit that soldiers must determine for themselves whether or not they have been given an illegal order.
I would expect him not to obey if the order was illegal.
However, Antonia also clarified that if the Chain of Command has determined an order to not be “illegal,”
I would expect that officer to obey. – LTC. Bruce Antonia, 6 Feb.2007, Melanthia Mitchell (AP), Washington Post
Here, I again must interject. The “legality” or “illegality” of an order that a soldier is expected to identify can best be understood with respect to two factors:
- The UCMJ, which would prosecute any order or act that is criminal or immoral on it’s face. For example, only in the military can service members be court martialed for adultery Yet, if some members of Congress and at least three presidents (Andrew Jackson, John F. Kennedy and Bill Clinton) had been held to the same standard, the words “immoral” and “adulterey” would have been redefined long ago. Common sense applies here.
- As I explained so meticulously in Part 1 of LTC. Lakin’s court martial, duties and responsibilities within the contours of two different oaths, as sworn by all members of the Armed Forces, on the day of initiation.
- Trial of Merit – Day 3
Did the Prosecution present evidence before the military jury that directly raised the issue of the legality of the war in a manner favorable to Lt. Watada’s defense?
Mike Barber, who covered the case for the Seattle PI, reported that Lt. Watada had originally been charged with two additional counts of “conduct unbecoming” for interviews granted to the public, but in return for Watada’s signature on a stipulation to that fact, the Prosecution had dropped those particular charges. The specification also acknowledged that the Lt. didn’t go with his unit to Iraq, yet never admitted to any guilt of the missing movement charge. So with the jury of officers out of the courtroom Judge Head directed an inquisition at Watada over the stipulation to assure it’s accuracy and eliminate any possibility of misunderstanding.
Certainly, LTC. Head did not want this court martial to become a tribunal on the legality of the Iraq War. Yet, in the course of his examination a disagreement arose between him and Lt. Watada. Many present at the trial said that Watada remained resolute about his position, regardless of the judge’s “badgering” and continued to credit the “illegality” of the war for his failure to deploy as ordered. Furthermore, he remained steadfast in his determination to so testify. Since all facts pertaining to this specification would have been included with any instructions given to the jury, Judge Head decided that when Watada agreed to the condition it was never with the intent to admit that he understood his duty had been to deploy as ordered to Iraq with his unit.
To prove a charge of missing movement, the Prosecution had to show that the Lt. did not report when he had a duty to do so. The confusion of the disagreement that prompted the mistrial was about whether Watada admitted missing troop movement and having a duty to report, or only missing troop movement. Consequently, since much of the Army’s evidence was laid out in the document that Watada had signed, to reject it would hurt the Prosecution’s case, so the judge granted their request for a mistrial, which Eric Seitz opposed.
Bill Simpich a civil rights attorney and an antiwar activist in San Francisco who attended the trial had this to say about what he observed.
Here’s what really happened.
Lt. Watada repeatedly told the judge on Monday and Tuesday morning, before the trial began, that he agreed with the 12-page “stipulation of facts” that was provided to the panel of seven officers as evidence of most of the key events 0n this case. The lieutenant reminded the judge in every response that he continued to believe that his orders to go to Iraq were illegal.
I was there, with a roomful of media, military and civilian observers. We all saw the judge review the document at length and offer a number of suggested factual corrections.
The judge also asked Lt. Watada if he felt “compelled” or “coerced” in his decision to not board the plane to Iraq. The lieutenant assured him that it was an intentional act and that his failure to board the plane was not due to any fear for his personal safety, while carefully reasserting his belief that he had no duty to obey an illegal order.
The judge reminded him that he had already ruled that the order was legal. Lt. Watada responded that he understood what the judge was saying, and then repeated his belief once more.
The stipulation specifically stated that Lt. Watada did not waive any legal defenses not addressed in the document.
The purpose of this stipulation was to drop two charges against Lt. Watada (sparing him exposure to two additional years in prison) in exchange for a written agreement that most of the facts would be admitted into evidence, and thereby evaporate any purported reason for subpoenaing journalists to testify against the lieutenant at the trial.
The document was prepared by the government. When construing a document, it is interpreted in favor of the person who did not prepare it.
It was signed by all parties over a week ago. This was not a last-minute task.
The judge was satisfied. The stipulation was accepted by the court and distributed to the panel Tuesday morning.
The panel proceeded to hear the entire prosecution case on Tuesday: the 12-page written stipulation, two videos that were also part of the stipulation, and three prosecution witnesses that appeared to aid Lt. Watada’s theory of the case.
The judge raised concerns about the document on Wednesday morning, moments before Lt. Watada was set to take the witness stand.
The judge had just received a new proposed legal instruction from Seitz. Since the judge had recently ruled that the order given to Lt. Watada to deploy to Iraq was “legal,” Seitz took the logical next step. Entitled “Reasonable Mistake of Fact/Law,” his new instruction was designed to inform the panel that even if Lt. Watada were “mistaken” in his belief that the order was illegal, a defense to the “missing movement” charge would be viable if the panel made a finding that Lt. Watada’s belief that the order was illegal was “reasonable.”
Shaken by this instruction, the judge tried to claim that Seitz had introduced some error by submitting this instruction, forgetting that the panel had not seen the instruction and hence any error was literally impossible!
Realizing the error of his ways, the judge then tried to speak to Lt. Watada about his understanding of the stipulation without asking Seitz for his permission. After initially warning the judge that he might not let him speak to Lt. Watada, Seitz relented and told the judge that he would let him speak to him over objection.
The judge repeatedly tried to shake Lt. Watada’s insistence that he reasonably believed that he was following an illegal order, all the while insisting that he wasn’t trying to mislead him in any way. Lt. Watada again respectfully but firmly punctuated his remarks with his state of mind.
Unsuccessful in his apparent effort to derail the defense, the judge then claimed that “I’m not seeing we have a meeting of the minds here,” Head said. “And if there is not a meeting of the minds, there’s not a contract.”
At this point, both the defense and the government figuratively “threw their arms around each other” and repeatedly told the judge that they wanted the trial to go forward. Courtroom observers agreed that they had never seen such a thing in their lives.
The SeattleTimes reported that “The defense and prosecution teams both believed the agreement did not constitute an admission of guilt. But the judge on Wednesday said the agreement included all the elements required to find Watada guilty. It was more than an agreement, Head said: It was what he termed a “confessional stipulation,” with whatever reasons behind the action irrelevant to the question of guilt.”
Lt. Watada’s attorney, Eric Seitz, said that the stipulation was not an admission of guilt.
“No. Absolutely no way,” he said. “Lt. Watada’s a smart guy. He knew exactly what he was agreeing to.”
The judge turned to the prosecution and said “I can’t unring that bell.” But then, in what appeared to be a moment of panic, he suggested to the prosecution that they recall their witnesses. He warned them that he was considering issuing a mistrial. He offered to let them reopen their case if they wanted to. He offered them whatever time they needed to make a decision “thirty minutes, an hour, or more.” When the prosecution assured the judge that they only needed thirty minutes, there was a disappointed look on his face.
Apparently the defense was also asked if it would be willing to withdraw the stipulation and let the case proceed on that basis. As the panel had been relying on the stipulation throughout the prosecution case, the defense was not willing to do anything of the sort.
Upon the prosecution’s return, they asked for a mistrial. The defendant opposed it. The motion was granted, and a new trial date was set. But now there was a new problem that may make any new trial impossible.
Once the trial commenced, “jeopardy attached.” Once jeopardy attaches, a second trial is generally not possible. This is known as “double jeopardy.”
Like all maxims, there are exceptions to the rule of double jeopardy. For example, if a verdict cannot be reached by the finder of fact, defendant cannot object to the resulting mistrial. Nor can the defense create error in order to get the defendant off the hook.
But a mistrial caused by judicial or prosecutorial error is another story. Generally, the charges must be dismissed in order to ensure that the authorities are not tempted to commit error in order to obtain a second trial when events are not going their way.
This is what happened here. The prosecution knew that Lt. Watada was not waiving his right to defend himself against the charges. Again, the stipulation specifically stated that no such waiver was being made.
The judge tried to make some mileage by reciting on the record a warning that he had previously given to Lt. Watada that by signing the stipulation, he was admitting that there was sufficient evidence on each element of the “missing movement” offense (for failing to board the plane to Iraq) for the panel to find him guilty.
“Sufficient evidence,” however, is a far cry from any kind of admission that there was no evidence to rebut the prosecution’s evidence. It may be news to the judge that trials are conducted for defendants who have pleaded “not guilty,” not for those who admit guilt. Was the judge considering what kind of trial he was suggesting? A trial where the determination of guilt or innocence by a panel of seven officers was literally meaningless? – Bill Simpich, 8 Feb.2007, Truthout
That Judge Head could believe and would force an argument that Lt. Watada and his attorney Eric Seitz had somehow unknowingly agreed to stipulate guilt before the trial began was very odd. To agree to the facts is not necessarily the same as admitting to criminal intent.
When the judge declared a mistrial the Prosecution had already rested it’s case. However, Lt. Watada had yet to testify on his own behalf, so double jeopardy should have applied to prevent a second prosecution, but we are talking about a military court here!
That some who attended the trial claim that Judge Head goofed and lost control of the situation is a tale that I am not quick to believe, but then I was not there, According to a statement released by Fort Lewis,
That judge became concerned that the stipulation amounted to a confession by Lieutenant Watada to an offense to which he intended to plead not guilty. William Yardley, 8 Feb. 2007, New York Times
In any case the Army decided to dangle Lt. Watada like a tea bag a bit longer. Judge Head proposed to retry Watada on the same charges. However, Eric Seitz held a press conference and declared that since both Prosecution and Defense had presented their full cases (except for Lt. Watada’s testimony), that to “retry his client twice on the same charges” would be an obvious breach of the Constitution’s safeguard against double jeopardy.
Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
A second trial was originally scheduled for 18 July 2007, but in the course of that development Lt. Watada retained the services of another law firm from Seattle to defend his case. So Carney Badley & Spellmancontinued the fight where Eric Seitz left off. Mr. Seitz had served the Lt. very well, but much of it was “pro bono.” Perhaps that was why Watada decided to lift the remaining burden from his shoulders.
My staff is very relieved because we were spending so much time and money on the case. Eric Seitz, 6 April 2007, Seattle Times
In an article published by The Nation, on 9 Nov. 2009, Jeremy Brecher and Brendan Smith, informed those who followed Lt. Watada’s story that in the subsequent months three military courts rejected Watada’s double jeopardy claim. Yet, when the case was appealed to a civilian court. US District Court Judge Benjamin Settle issued a stay blocking the retrial and charged that,
The military judge likely abused his discretion.
The Army countered that it would appeal but did nothing for eighteen months. After Barack Obama secured the White House, a campaign launched by Watada’s supporters, secured the new President’s support and the Department of Justice dismissed the Army’s appeal. When the Army threatened to court martial the Lt. on other charges, it finally recognized the futility of any further advance and surrendered in defeat.
How Can A Civilian Court Override The Military Judicial Process?
Military courts have exclusive authority over purely military crimes. Some examples of purely military crimes include:
- Failure to obey an order
- Insubordinate conduct
The military has always resisted civilian courts exercising jurisdiction over its personnel on military related cases. It is part of a separate military society model that can be traced back to Gen. Sherman after the Civil War. Johnathan Turley, 6 October 2007, johnathanturley.org
However, even within a military judicial system the Constitution still applies.
Col. Dwight Sullivan, an attorney who founded CAAFlog, a blog devoted to concerns in U.S. military law and the UCMJ had this to say on 7 Oct. 2007,
Lt. Watada’s first court-martial ended in a mistrial, and U.S. District Court Judge Settle is concerned with a potential double jeopardy violation from proceeding with a second court-martial. In his order, Judge Settle goes so far as to say that “the record indicates that Petitioner’s double jeopardy claim is meritorious.” Watada, No. C07-5549BHS, slip op. at 3.
Judge Settle ordered Army officials to file a response by 12 October and Lt. Watada’s counsel to file a reply by 17 October 2007. He set the case for further consideration of 19 October 2007. It looks like we’ll be following this case closely over the coming month. Col. Dwight Sullivan, 7 October 2007, CAAFlog.com
Lt. Ehren Watada on Citizen Responsibility
Questions from the Left that remain, as proposed by Jeremy Brecher and Brendan Smith, 9 Nov. 2009, The Nation – Which I will explore in Part 3.
- Does a soldier have a right and obligation to resist? Lt. Watada raised the fundamental question of whether authority in the military or in society more generally is something to be blindly accepted, or something to be subject to rational moral and legal examination. He asserted that,
The American soldier must rise above the socialization that tells them authority should always be obeyed without question. Rank should be respected but never blindly followed. Ehren Watada
- Should the military hear claims that orders are illegal?
I understand that under military law, those in the military are allowed to refuse and in fact have the right to refuse unlawful orders–a duty to refuse. In a court of law they should be given the opportunity to bring evidence and witnesses to their defense on how that order was unlawful. In this case I will not be, and that is a travesty of justice. Ehren Watada
- Should the law recognize selective objectors?
The Selective Service Act provides conscientious objector status to those who oppose all wars on grounds of moral conscience. However, it takes the position that objectors can’t pick and choose their wars. Yet today there are strong moral grounds to oppose many, if not most, of the wars that occur, even for those who might admit in principle that some wars might be justified. Amnesty International takes the position that there is a right to such “selective objection” and that those who are punished for refusing to participate in a war they consider immoral are “prisoners of conscience.”
Watada recognized that,
In opposition to my position, the argument will be made that soldiers don’t have a right to pick and choose their wars. I would respond that it is not only our right but our constitutional and moral duty. Ehren Watada
Is it time to recognize conscientious objectors to particular wars?
- How can illegal wars of aggression be prevented?
There is currently a broad debate on torture in policy circles, the public and to some degree in the courts. But torture is only one war crime, and it’s not the most severe. Yet there is virtually no effort to question or establish accountability for the most important war crime by the United States in Iraq: illegal pre-emptive war.
I think the greatest crime that the leaders of a country could commit–the leadership of a country–would be to take their people, their country, into war, based upon false pretenses.Ehren Watada
In addition to these questions I will present and answer a few of my own:
- Was U.S. invasion of Iraq “illegal and immoral?”
- Do service members have a duty to refuse “illegal orders” of what they may believe is an “illegal war?”
- Lt. Watada’s “soldier of conscience” argument.
- Was the invasion in violation of international law, as well as American law?
- Are military service members allowed to exercise their constitutional “rights” in public? If so, how?
- Is a commissioned officer entitled to determine the “legitimacy” of a war?
In the course of developing this project I have come to see a larger issue here than just the legitimacy of the Iraq War, freedom of speech for active duty service members and “soldier of conscience” etc. Therefore, it will probably be in the later part of 2014, before Part 3 will be ready. However, until then I will present other articles that should serve to edify the ‘Big Picture’ of what I think is going on. I cut this article down to 14,584 words, because I do try to be brief!
Mahalo and Aloha!
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- Ruling of the Court: Defense Request for Hearing on Nuremberg Defense – PDF – Judge John M. Head (January 16, 2007).