Attorney Eugene Fidell on Military Law

DATE January 25, 2007 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Army Lieutenant Ehren Watada and lawyer Eric Seitz
discuss Watada's refusal to go to Iraq
TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

My guest, Lieutenant Ehren Watada, is the first American commissioned officer
to publicly refuse to go to Iraq. His reason? He says he believes the war is
illegal. His court-martial trial is scheduled to begin February 5th. If
convicted for refusing to deploy, he faces up to two years in prison. He's
also facing four charges of violating the uniform code of military justice for
public statements he made opposing the war and criticizing the Bush
administration. He could be sentenced to four years for those charges.
Lieutenant Watada's court-martial trial will be held at Fort Lewis in Tacoma,
Washington, where he's been on desk duty since refusing to deploy. Watada
enlisted in 2003, and after completing officers candidate school, was deployed
to South Korea, where he served with distinction.

Also joining us, by phone from Hawaii where Watada grew up, is his civilian
lawyer, Eric Seitz, who will enter into our conversation a little later.

Lieutenant Watada, welcome to FRESH AIR. Why did you refuse to deploy to Iraq
with your brigade?

Lieutenant EHREN WATADA: Well, I think, basically back in January of 2006, I
sent an unofficial letter of resignation to my chain of command. Prior to
that, I had started to do some research into the Iraq war based upon my
responsibilities as a leader and an officer, to prepare myself and also my
soldiers for our pending deployment. And in that research, I began to look at
the culture of Iraq, the history, the events on the ground, the conduct of the
military and how the civilians were reacting to that, the nature of the
insurgency and its causes and also how we had gotten into the war in the first
place. And I think I became very shocked at what I had found, in that not
only was the war illegal and immoral in and of itself, but the conduct of the
United States forces and the policy of the government were also very illegal
and immoral. And I had to look at myself and ask myself the question of who I
was in the military and what I was being asked to do. And I came to the
conclusion that I could not, as an officer, as a soldier who has sworn an oath
to protect the Constitution, the safety and the welfare of the American people
and uphold the treaties and laws that we were all beholden to, I could not
condone or enable the leadership within our government who were enacting these
illegal and immoral policies in Iraq.

GROSS: You've used the words "illegal" and "immoral." Can you briefly explain
why you've used those words to describe the war?

Lt. WATADA: Essentially, the war was started based upon false
misrepresentations of the facts of the justifications for going to Iraq. And
to me, that is a basic violation of our separation of powers when you have one
branch of government that is misleading the other branch of government in
order to gain an authorization of force to invade another sovereign country.
And not only that, but Article 6 of the Constitution specifically states that
all international treaties that we enter into, Congress ratifies to become the
law of the land, second only to the Constitution. It is illegal under our
Constitution and international law to invade and occupy another country that
is not an imminent threat to us or if this action is not authorized by the
United Nations Security Council.

The war is also illegal and immoral through its conduct in that the United
States military, through the rules of engagement and policies, are violating
international norms and laws daily. And that includes the illegal detention
of Iraqi civilians and the mistreatment, abuse and torture as a matter of
policy and also the mistreatment of civilians and the sieges of cities, the
use of illegal weapons. All those things are violations of the Geneva
Convention, the Hague Convention and many other humanitarian and international
laws.

GROSS: When you made your decision that you saw the war in Iraq as illegal
and immoral, and you therefore did not want to deploy with your unit to Iraq,
how did you go about refusing to deploy?

Lt. WATADA: At first I wrote a letter of resignation, kind of informal
letter, basically stating that I could not condone or enable something that I
felt was contrary to my oath and my duty as a soldier. And I asked
requestfully to resign my commission, and I was simply turned down at first.
I was told that I would be kicked out of the unit, be transferred somewhere
else. Then I was ordered to deploy on the unit's mission readiness exercise
over to Fort Irwin, California. And then when I came back, I was transferred
from, I guess, a combat position and a line company over into the battalion
headquarters. I was offered the job of staying within the bases, I guess.

I think they, at one point, they thought I was a conscientious objector, even
though I had stated that I wasn't, and they were essentially offering me a
safe position. And I said, `No, that's not the point. I am against this war
totally, not just because I'm a pacifist or conscientious objector.' And so I
turned down that offer, but they moved me anyway. And then they told me--they
revoked my leave. The rest of the unit went on leave, and they said, `By the
time we come back, if you have not changed your decision, we will start legal
proceedings.' And when they said that, that's when I felt I needed to have
legal representation and I asked Mr. Seitz if he would represent me.

I had submitted an official resignation in April. It was turned down by the
Department of the Army. I submitted another resignation through a different
channel in late May, and that also was turned down. And when I saw that there
was no other alternative, I believed that I needed to take this issue into the
public arena and let the people know why soldiers were dying in Iraq and what
their responsibilities were as Americans.

And even after I was charged, we also offered to take nonjudicial
punishment--well, I offered to take nonjudicial punishment, meaning loss of
rank and loss of pay, while not admitting any guilt to anything. And even
before that, I had offered to deploy to Afghanistan in lieu of Iraq, and I was
denied that, as well, because they said, `If we let you go to Afghanistan,
that means we would be admitting that there is something wrong with Iraq, and
we believe there is nothing wrong with it.'

GROSS: Let me ask you, if they let you deploy to Afghanistan instead of Iraq,
isn't that basically saying that officers can choose which country they want
to fight in or which war they want to fight in, that somehow you have a
choice? And soldiers aren't supposed to have that kind of choice.

Lt. WATADA: Well, I think we have to remember that we, as a country,
including all of her citizens and the military, operate under the rule of law.
And there is such a thing as an illegal war as determined after World War II.
And soldiers, you're right, they don't have the right to pick and choose, but
they have the duty and the obligation to determine if what they are being told
to do, including deploying to a war, is illegal or not. And, of course, that
is also our right under the uniform code of military justice, military law.
And you--every soldier who disobeys an order, based that it's unlawful, does
so at his own peril. But if you are court-martialed or if you face punishment
over it, you should be allowed, under the rule of law, in a court of law, to
bring witnesses and evidence on your behalf that could testify to that order
being unlawful. In this case, the judge has already predetermined that he
will not allow any evidence or witnesses to testify that the war is illegal or
immoral. He has already predetermined that the order is lawful. And in this
sense, by charging me with missing movement, they are skirting the issue of
the legality of the order, and they have also--they are also determining that
the order to get on a plane is legal and it has nothing to do with why you are
getting on that plane or what are you going to do once you disembark. And I
think that that's a disservice because the order I was given was to get on the
transport to go to Iraq and conduct combat operations, and what I'm saying is
the conduct of the combat operations in Iraq, as a matter of policy and rules
of engagement, are violating the law and have been in the past.

GROSS: My guest is Lieutenant Ehren Watada. He's being court-martialed for
refusing to deploy to Iraq. His civilian lawyer, Eric Seitz, will join our
conversation after a break.

This is FRESH AIR.

(Announcements)

GROSS: My guest is Lieutenant Ehren Watada. He's being court-martialed for
refusing to deploy to Iraq. He says the war is illegal. He's also facing
charges related to public statements he made opposing the war and criticizing
the Bush administration. Also joining us, by phone, is his civilian lawyer,
Eric Seitz.

Eric Seitz, thank you for joining us. I know one of the arguments you wanted
to make in the court-martial is that Lieutenant Watada, you know, refused to
deploy to Iraq because the war is illegal. Illegal because the US did not
have the backing of the UN Security Council. But in January, a military judge
ruled that you couldn't use that defense because the war's legality is a
political question and not a question that could be judged in a military
court. So where does that leave you in terms of the defense?

Mr. ERIC SEITZ: Well, as Ehren just said, basically, the judge has
predetermined the merits of the case, at least with respect to the missing
movement charge. In addition to the missing movement charge, which carries a
two-year maximum punishment and the equivalent of a dishonorable discharge
from the Army, Ehren is also charged with four specifications--four additional
charges of making statements that constitute conduct unbecoming of an officer.
So although we will not be able to defend as to the legality of the war and
the order, which he clearly violated, we certainly will be able to bring much
of that evidence in with regard to the conduct unbecoming as an officer
specifications because that's very vague and ill-defined. And we believe that
we're going to be allowed to raise many of those issues with regard to the
specific statements that he's alleged to have made that are punishable.

GROSS: Well, let me read the statements that Lieutenant Watada is being tried
for. Statement one: "I could never conceive of our leader betraying the
trust we had in him. As I read about the level of deception the Bush
administration used to initiate and process this war, I was shocked. I became
ashamed of wearing the uniform. How can we wear something with such a
time-honored tradition knowing we waged war based on a misrepresentation and
lies? It was a betrayal of the trust of the American people, and these lies
were a betrayal of the trust of the military and the soldiers. But I felt
there was nothing to be done, and this administration was just continually
violating the law to serve their purpose and there was nothing to stop them.
Realizing the president is taking us into a war that he misled us about has
broken that bond of trust that we had. That the president can betray my
trust, it's time for me to evaluate what he's willing to tell me to do."

Statement number two: "I was shocked and at the same time ashamed that Bush
had planned to invade Iraq before the 9/11 attacks. How could I wear this
honorable uniform now knowing we invaded a country for a lie?"

And statement three: "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. 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. The wholesale slaughter and mistreatment of Iraqis is not only a
terrible immoral injustice but it's a contradiction to the Army's own law of
land warfare. My participation would make me party to war crimes."

So Lieutenant Watada is accused of conduct unbecoming an officer for making
those three statements. And let me ask you--this is Lieutenant Watada lawyer,
Eric Seitz--how do you plan on defending him on those charges of conduct
unbecoming?

Mr. SEITZ: Well, first of all, in the motions hearing that we had in
January, we argued that the statements are perfectly permissible. There is
certainly no doubt that even people on active duty in the military have the
protection of the First Amendment. And we argued that those statements are
nothing more than statements of a political nature, which you hear on military
bases or in barracks and you've been hearing increasingly from military
leaders, including several generals and other people who have been critical of
policy in Iraq so that he's being singled out for saying the same things which
everybody is saying and which is entitled to say. Now, the judge denied our
motion to dismiss based upon that, and so now we're faced with the question of
whether or not those charges and that language constitute conduct unbecoming
of an officer, which typically involves adultery, writing bad checks, the kind
of conduct which is clearly inconsistent with the moral obligations of
somebody who is put into a position of responsibility. Our argument simply is
going to be that in making those statements, Lieutenant Watada was, in fact,
exercising all of the moral authority which he has to exercise as an officer
in the military, and it is entirely conduct becoming of an officer and that
more officers ought to be making those kinds of statements. So we are going
to go right up against those charges basically and say that the statements
that he made are not only true and responsible and thoughtful and sincere but
that they constituent carrying out the obligations which he was sworn to do.

GROSS: Now, Lieutenant Watada, you made those statements to the press and, I
believe, at a demonstration. Was that right?

Lt. WATADA: I made these comments to reporters and also at a press
conference in which that was when I first announced to the public the reasons
why I was refusing deployment to Iraq.

GROSS: Mm-hmm. Now, the judge in the pretrial hearing said that there are
limits to the free speech rights of military personnel and that a military
panel should decide whether these criticism of the war could have endangered
the morale, loyalty and discipline of troops. Eric Seitz, as a lawyer, what
is your understanding of the limits to free speech for military personnel?

Mr. SEITZ: Let me answer that in two different ways.

First of all, there is a misconception that when you put on the uniform and
take an oath that you give up your rights, that you're sworn to protect for
everybody else. And that's absolutely untrue. The limitations historically
that have been applied by the courts, both military and civilians, to people
in military service, are that they cannot participate in activities in uniform
which are not approved by their command. They cannot say contemptuous and
disloyal things about the president or the secretary of defense or other
leaders that would undermine discipline and authority, specifically within
their ranks. That they cannot represent themselves as spokespeople for the
military when they're making statements of personal opinion in which they may
be criticizing or opposing official views. And, obviously, they cannot do the
same kinds of things that you and I can't do. They cannot incite riots. They
cannot incite violence. They cannot do those kinds of things which cross the
line from speech to conduct and are impermissible for all of us as well.

But short of that, they can criticize. They can make statements, both
publicly and privately, as long as they do it within those parameters. And so
there's no question that Lieutenant Watada has a right to speak out on
controversial issues. The question really is time, place and manner, and in
this situation, he certainly was very respectful of the way he expressed his
views. The problem we have with the judge's ruling is that he's going to
leave it up to a panel of officers as to whether or not this speech is
permissible. And when this decision is reviewed by higher military courts and
up to and including perhaps the Supreme Court of the United States, they are
going to be appalled that the limits of free speech are going to be decided by
military line officers because that's not something that I think ought to be
done.

GROSS: But they're deciding the limits of free speech for the military, not
for civilians.

Mr. SEITZ: They are. But it's really a question that the military judge
should decide as a matter of law because speech is something that's obviously
very highly respected in our system of justice, and it's being left up to a
number of people who have no training and obviously have biases and
experiences from the offices that they hold. There isn't going to be a single
person on that panel who hasn't either been to Iraq or doesn't know people who
have been to Iraq and are there now. And all of them probably also know
people who have been killed or severely injured or wounded in Iraq. And so
the presumption is that we're dealing with a body of people who are going to
make a decision as to free speech who come to this decision with very severe
biases. And that's why we're very concerned that this is not really so much a
justice proceeding but a disciplinary proceeding.

GROSS: And what's the distinction between a justice and a disciplinary
proceeding?

Mr. SEITZ: Well, if this were a court in a trial, we would be able to air
the issues in a fairly defined manner. And we've been precluded from raising
defenses. We've been told that all of our witnesses have been denied, that
we're not going to be allowed to call any of our witnesses. And so,
basically, the only real determination here is going to be not whether
Lieutenant Watada is guilty or innocent of the charges against him but what's
the punishment going to be. And that's more the nature of a disciplinary
proceeding, which is, in fact, what military courts are set up to do.

GROSS: So how much leeway do you have now in arguing Lieutenant Watada's
defense?

Mr. SEITZ: Well, as I said earlier, we're going to have some leeway with
respect to arguing to these court members that he should not be punished for
making statements which he's entitled to make. But I'm not overly confident
that they're going to be sophisticated enough to make the distinctions that
the law requires of them under those circumstances. And we're also going to
be able to argue in any punishment phase of the case that he was very sincere.
He was very thoughtful. He was very respectful, and that the kind of
statements and the thought process that he's gone through is something that
ought to be respected and not heavily punished. But that really is the extent
to which we're going to be allowed to make those arguments.

GROSS: What are the larger principles that you feel are on trial in this
case?

Mr. SEITZ: First of all, I think that at the time that Ehren spoke out and
this began to unfold in June of this year, the war was going on and the
anti-war movement in this country was minimal at best, and I think that there
was a lot of frustration on the part of people who realized what's been
happening in Iraq and how horrendous it is that there wasn't more
outspokenness in opposition and more people putting themselves in positions
where they were actually having an impact on whether or not this war can
continue. I think it was pivotal for Ehren to speak out when he did, and I
think, to a certain degree, we've seen a very significant change in public
opinion in this country in part because of the actions that he and a handful
of other people have taken with enormous courage. And that really was
reflected in the election results this last time around and in a climate where
now as many as 70 or 80 percent of the people in this country are calling for
an end for this war and are criticizing the basis upon which it was initiated.

GROSS: Lieutenant Ehren Watada's court-martial trial is scheduled for
February 5th. We'll talk more with Lieutenant Watada and his lawyer, Eric
Seitz, in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.

(Announcements)

GROSS: This is FRESH AIR. I'm Terry Gross, back with Lieutenant Ehren
Watada, the first American commissioned officer to refuse to go to Iraq. He
says the war is illegal. His court-martial is scheduled for February 5th. He
faces up to two years for refusing to deploy and four years for violating the
uniform code of military justice in public statements he made opposing the war
and criticizing the Bush administration. Also joining us, by phone from
Honolulu, is Watada's civilian lawyer, Eric Seitz.

Lieutenant Watada, you're at Fort Lewis, and that's in Tacoma. Do I have that
right?

Lt. WATADA: Yes.

GROSS: And the Seattle Times, which is in the same area, the Seattle Times
had an editorial about your case, and I want to read an excerpt of it. The
editorial says, "He, Lieutenant Watada, says he opposes the war. Not all
wars, but this one. So do we, but we cannot support his request to be excused
from a posting to Iraq. Soldiers have to go where they are ordered. That is
the rule here and everywhere and for reasons of military necessity. Watada
was a volunteer and knew that when he signed up. He knew about the Iraq war
as well. He signed up in 2003, the year of the US invasion. He also should
have known that once one joins the military, one loses the freedom to speak in
ways that could damage soldiers' morale, a restriction that includes political
criticism of the military's mission." And what this editorial recommends is
convicting you on all charges and then giving you a dishonorable discharge.

What's your reaction to what they say there that you should have known that
you had to obey orders and that the Army can't afford to let you get away with
this, basically.

Lt. WATADA: Well, the fact is that there's a higher law. When we join the
military, we don't swear an oath to a person or especially officers. In our
oath, we do not swear an oath of loyalty to any one person or any group of
people or even an institution. We swear an oath to protect the Constitution
and also the American people as a whole. And we have to follow the rule of
law, as it says in the Constitution. And when we have--when I joined the
military back in March 2003, I believed the administration when they said
there was weapons of mass destruction in Iraq, there were ties with Saddam to
al-Qaeda and 9/11. We all know those things were false now. And there has
been many reports coming out from former retired CIA analysts and officers
saying that the intelligence was not bad, it was intentionally falsified to
fit the policy. And when we have, as I said, a group of people within our own
government who mislead the public, who mislead the other branch of government
in order to justify their war, that is a violation of the Constitution.

And I just have to say that regardless of what they convict me on--if they
convict me or sentence me to--I am doing what I swore an oath to do when I
joined the military three years ago. And, as I said, I did not realize the
extent of the deception that was waged upon us three years ago that I do now.

GROSS: I know that some people listening to you are thinking, `That
lieutenant is really just a coward. He's hiding behind all this intellectual
stuff but really he just didn't want to risk his life in Iraq.' I know some
people are thinking that, so would you answer them?

Lt. WATADA: Well, I think the more cowardly thing for me to do was to betray
my own conscience and do something that I knew was totally wrong and order
others to do that as well. And, you know, I'm not--I'm facing some pretty
serious consequences here. The fact that I will be going to prison for up to
six years, facing a dishonorable discharge and all the ramifications that come
from that, and I did not make this decision lightly.

GROSS: So are you prepared to go to prison? I mean, are you trying to
mentally prepare yourself if in case that is the outcome?

Lt. WATADA: You know, when we join the military, we say we will sacrifice
whatever it takes to protect our country, the safety and the welfare of the
American people and our time-honored laws and traditions. And in some wars
and in some instances, even in the present, many men and women are sacrificing
their lives and their bodies in order to uphold this belief. And I believe
that I am doing the same thing. I'm sacrificing my freedom in order to uphold
the same belief in our laws and in our traditions and the safety and the
welfare of the American people.

GROSS: Now, there is a Japanese-American veterans group that is opposing you,
and they're saying that you're bringing shame to the Japanese-American
community by not following orders. What's your reaction to that criticism?

Lt. WATADA: I think what's important to understand is there are individuals
within these veterans groups who are opposed to what I'm doing, just as there
are individuals within these groups who are very supportive. And when I was
in Hawaii, there was a gentleman who served in the 442nd Infantry Regiment in
World War II. And he used to be the head of the organization, he is not
anymore. And he told the head of the organization now, who had said publicly
he was opposed to what I was doing, that he does not speak for all
Japanese-American veterans.

Mr. SEITZ: You know, that's an interesting question because the debate over
Lieutenant Watada's position has really raged in the Japanese community, but
it really has rekindled a debate that began during World War II when the
Japanese were incarcerated as a race, and there was a debate as to whether or
not they should defend the country that had put them in concentration camps.
And that same debate has really raged, in many respects now, as a result of
Ehren's actions. And, frankly, from our standpoint, that's a good debate.
And it certainly has been joined equally, as far as we can tell, on both
sides. There are people who think that he should serve and there are people
who think that he shouldn't serve. But all of those people have had to
examine the basis for this war and what it is that Ehren has been saying about
why he isn't going to serve. And that's a good thing because it has brought
into the fray and into the discussion thousands and thousands of people who up
until the time that Ehren refused to go have pretty much been silent.

GROSS: Eric Seitz, let me ask you what you--what the format will be of the
court-martial trial on February 5th.

Mr. SEITZ: Well, we'll start out initially, as you do in any civilian trial,
with a selection of the court members who are the military jury. And we will
have the opportunity of questioning them individually to determine what their
beliefs are and what their experiences are that they bring to bear in this
case.

Once the court is seated or impanelled, the government will then present its
evidence, which in this case will take probably less than an hour or two given
the judge's rulings. And after that we will have an opportunity to put on
witnesses in defense--although they've denied all of our witnesses--so the
extent to which we're going to be allowed to do that remains unclear. In all
likelihood, Ehren will testify during that phase of the trial. And then after
the court members make a determination as to the guilt or innocence on all of
the pending charges, we will then have a punishment phase in front of the same
court members who will decide the ultimate punishment, to include the
likelihood of a discharge from the Army and some period of incarceration.

GROSS: What's the outcome you're hoping for?

Mr. SEITZ: Well, you know, with all due deference to the Seattle Times, if
the Army were simply willing to discharge Ehren, we would take that. We've
offered that a number of times. But they want to imprison him and make an
example out of him. And that has not only to do with the fact that he dared
to refuse an order to go to Iraq but that he did it publicly and spoke out and
has given the reasons for that. The Army has taken the position that they
want him to serve a minimum of 18 months or longer. And I think when we get
to trial, it's very likely that they're going to ask for two to three years at
a minimum. Our hope is to minimize the consequences of this because,
fundamentally, no one in the military, no one who has dealt personally with
Ehren believes that he's doing this to place himself out of danger. Everyone
who has dealt with him, including his commanders, who respect his sincerity,
feels that he's doing this as an act of conscience.

So he's not a coward. He offered to go to Afghanistan. That really doesn't
come into play here. He really is somebody who is conscientiously taking a
position, and he should really be respected for that. If he's discharged,
fine. If they feel he has to serve a short period of time, certainly less
than what Lieutenant Calli served for being responsible for the massacre of
people in Vietnam, we could live with that. But we can't live with a lengthy
period of incarceration. We don't think that's called for in this situation.

GROSS: Well, I want to thank you both very much for talking with us.

Lt. WATADA: Thanks, Terry.

Mr. SEITZ: Thanks a lot.

GROSS: Lieutenant Ehren Watada's court-martial is scheduled for February 5th.
His lawyer, Eric Seitz, joined us by phone from Honolulu.

We invited representatives of the Army to participate in our program but the
Army's media relations office sent us this statement. "Because First
Lieutenant Watada's court-martial will begin early next month, it would be
inappropriate to comment on his specific case. The Army has complete
confidence in the military justice system and believes Lieutenant Watada will
be given a fair trial."

Coming up, we'll talk about the charges facing Watada with the president of
the National Institute of Military Justice.

This is FRESH AIR.

(Announcements)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Interview: National Institute of Military Justice president
Eugene Fidell discusses Lieutenant Ehren Watada's court-martial
trial for refusing to deploy to Iraq
TERRY GROSS, host:

We've been talking about the upcoming court-martial of Lieutenant Ehren
Watada, the first American commissioned officer to refuse to deploy to Iraq.
He says the war is illegal. He faces up to two years in prison for refusing
to deploy. He also faces possible four years on charges of violating the
uniform code of military justice in public statements he made opposing the war
and criticizing the Bush administration. As I mentioned before, the Army
declined to participate in our program. To better understand the charges, we
called Eugene Fidell, the president of the National Institute of Military
Justice, a nonprofit civilian group whose goal is to advance the fair
administration of military justice and foster improved public understanding of
the military justice system. It's affiliated with American University.
Fidell served in the Coast Guard Reserve as a lieutenant commander.

Eugene Fidell, welcome to FRESH AIR.

Lieutenant Watada is the first officer to refuse to deploy to Iraq because he
thinks the war is illegal. He did offer to go to Afghanistan instead, but he
refused a desk job in Iraq. Is there any legal precedent in the military for
what he's doing?

Mr. EUGENE FIDELL: No, there isn't, not in the United States Armed Forces.
Basically, officers and enlisted personnel don't have the option of choosing
where they're going to serve, and to the extent that Lieutenant Watada
effectively was trying to do that, it's not permitted under our system.

GROSS: You know, what Lieutenant Watada says that if you look at the
Nuremberg Principles, then an officer has an obligation to reject orders that
he or she considers illegal. And the lieutenant is saying this war is
illegal, so he has an obligation to not participate in it.

Mr. FIDELL: Well, there certainly is military law doctrine found in the
Manual for Courts-Martial, which is the governing document here, for the
proposition that a person has a defense to a charge of disobeying an order if
the order is plainly unlawful or that a reasonable person would know was
unlawful. And that simply doesn't apply in this situation. The law is that
an order to deploy soldiers is a nonjusticiable political question. Now,
that's a fancy lawyer's term, but basically it means it's not for the criminal
courts--in this case a court-martial--to decide what is effectively a
political question. Deploying is different from performing some more
ministerial act, some more isolated act. Do you shoot, do you not shoot? You
know, do you have the privilege to commit some other specific act in the
course of military operations? That's very different from participation in
the operation at all, and the law simply does not permit litigation of the
legality of an overall military operation.

GROSS: What's at stake for the military in that part of his case?

Mr. FIDELL: Well, not much really. I think the military is probably on very
firm ground in this respect. The military is not going to permit people to
opt in or opt out unless they happen to be conscientious objectors. That's
the escape valve in our military legal system. If a person is a conscientious
objector, even a person who is already in, obviously--we don't have
conscription these days--such a person can apply for what is called in-service
conscientious objector status. And all the branches of the service have
procedures for screening such applications and deciding whether the individual
qualifies or doesn't qualify for separation or for transfer to noncombatant
duties. In this case, Lieutenant Watada did not apply for conscientious
objector status, and I believe the reason for that is that's not the nature of
his objection. It's an objection to the legality of the war rather than an
objection to participation in a war in any form, which is the test for
American conscientious objection.

GROSS: So what--I think what you're saying, if I hear you correctly, is that
Lieutenant Watada would have had grounds to stand on if he was saying, `I
refused to take this particular order or to give this particular order because
I though it violated the Nuremberg Principles.' But he can't refuse to deploy
because of that.

Mr. FIDELL: That's exactly right. There is a defense to violation of
orders. Under the Manual for Courts-Martial, it is a defense to any charge
that the accused was acting pursuant to orders unless the accused knew the
orders to be unlawful or a person of ordinary sense and understanding would
have known the orders to be unlawful. So military law does recognize a
defense of obedience to orders, but the defense doesn't apply if the order is
unlawful. That's the long and short of it.

Now, that is applied to specific kinds of conduct. So, for example, an order
to execute a prisoner, for example, would be a plainly illegal order. You
have a duty to disregard such an order, to resist such an order. That's
different from an order simply to deploy. That's the line that is involved in
this case, and Lieutenant Watada falls on the wrong side of that line, it
seems to me.

GROSS: I bet there's actually nothing written about what the guidelines are
if you think a war is illegal.

Mr. FIDELL: That's correct. Now, it does happen that there was a case in
Germany in the German Armed Forces of an officer who objected to some kind of
participation. He had an office job and he was called upon to perform some
duties in support of operations, I believe, in Iraq. And he objected because
he felt the war in Iraq was illegal. That case went up through the court
system in Germany and the German court held that his preference to perform
some other duty should have been honored. The long and short of it is, that's
not the law in the United States.

GROSS: Lieutenant Watada is also being charged with conduct unbecoming
because of the anti-war statements that he made to journalists and at a press
conference. His lawyer says that conduct unbecoming is a charge usually
applied to things like adultery or writing bad checks, not to anti-war
statements. And his lawyer argues that this is really a First Amendment issue
and that the lieutenant's conduct has not violated his oath as an officer.
What's your understanding of how the charge of conduct unbecoming is being
applied to Lieutenant Watada?

Mr. FIDELL: There were two provisions in the uniform code of military
justice that are very flexible. One is the prohibition on conduct unbecoming
an officer and a gentlemen. By the way, it also applies to women. And the
other is conduct to the prejudice of good order and discipline or conduct that
is service discrediting. Those two provisions, which are Articles 133 and 134
of the UCMJ, are extremely flexible. They cover a multitude of sins. For
many years, there has been concern that they're too flexible and they don't
afford sufficient prior notice of what is criminal conduct and what isn't. In
this particular case, I will say that my own view is that prosecution should
not have cluttered the case up with issues relating to free speech. I'm not
saying that the government will win or lose that. I think the government, you
know, they may have some problems with those charges.

Had I been the prosecutor, I simply would have relied on the fact that
Lieutenant Watada had failed to move with his unit, and that's quite an easy
offense to prosecute, and it would have presented a much clearer case, a much
simpler case, and it would have avoided--at least possibly avoided--a number
of the issues Lieutenant Watada is raising.

GROSS: What's your understanding of the rights of an officer to free
political speech and what are the limitations on free speech when you serve as
an officer on active duty in the military?

Mr. FIDELL: There's no question that military personnel, including officers,
enjoy rights under the Bill of Rights, including the right to free speech. On
the other hand, there's also no question that there are certain constraints
that apply to military personnel. For example, Congress has said that
military officers cannot speak contemptuously of the president of the United
States or various other officials. You and I could speak however we want
about the highest officials in the country without worrying about being thrown
into jail, but a military officer cannot speak contemptuously without running
the risk of being sent to jail.

A famous case about this happened during the Vietnam War. There was an
officer named Hal who was engaged in an anti-war protest and he was carrying a
picket sign that accused President Lyndon Johnson of being a fascist.
Incidentally, he misspelled the word fascist and I've always wondered if that
counted against him in the prosecution. So there are cases where military
officers and military personnel generally have certain constraints on what
they can say. Where that line is is uncharted, and it's probably not
chartable.

These cases are notoriously fact-specific. We tend not to prosecute them
because we don't have all that much vocal dissent within the armed services.
People in the armed services today are not conscript. They are all
volunteers. They tend to be supporters of the program, and they tend to keep
their views to themselves.

GROSS: Now, are the charges against him are seen by some as an attempt to
silence opposition to the war that's coming from within the military? What
would your response to that be?

Mr. FIDELL: I don't agree with that. I think there's a danger that
prosecution can have a chilling effect. On the other hand, we really don't
expect the military to play all that great of a role in the political life of
the country. There's great controversy, for example, when retired officers
who are no longer wearing the uniform express their political views. For
people who are still on active duty, it's much more sensitive. In our
society, the culture is that we have civilian control of the military rather
than the other way around. It's one of the strengths of our democracy. It
calls for some self-restraint by military personnel. And happily we very,
very rarely get cases where we're forced to decide precisely where the
boundary lies. That's a good thing, in my opinion.

GROSS: My guest is Eugene Fidell, the president of the National Institute of
Military Justice.

We'll talk more about the upcoming court-martial of the first commissioned
officer to refuse to deploy to Iraq after a break.

This is FRESH AIR.

(Announcements)

GROSS: We've been talking about the upcoming court-martial of Lieutenant
Ehren Watada. He refused to deploy to Iraq. He says the war is illegal. He
faces up to two years for refusing to deploy and up to four years on charges
related to public comments he made opposing the war and criticizing the Bush
administration. We spoke to Watada earlier in the show. Let's get back to
our conversation with Eugene Fidell, the president of the National Institute
of Military Justice.

Lieutenant Watada's lawyer expressed the concern that since Lieutenant Watada
is facing a military jury that the military jury may be biased against any
kind of speech that opposes the military or the government that got us into
the war. So is there that built-in bias in the system?

Mr. FIDELL: It's a fair concern but the system also has some protections to
prevent bias on the part of the jury. Specifically, there's an opportunity
that the defense has to make sure that people aren't bias by asking them
question before the jury is seated. This is called voir dire examination. It
can be fairly open-ended. The military judge will be presiding over that
process. And the government, also, by the way, will be able to ask some
questions to make sure the jury is able to do its duty impartially and follow
the judge's instructions. So there are some protections.

And, frankly, there's the same kind of protections that we see in federal
criminal courts and state criminal courts. So the system has some protections
against the danger of bias.

GROSS: The lieutenant's lawyer says that they have been denied all of their
witnesses that they wanted to call.

Mr. FIDELL: I believe the point they're making is that their Nuremberg
defense has been thrown out by the judge as a matter of law. If you are
seeking to call witnesses for the purpose of advancing a defense that has been
decided by the judge not to have any merit as a legal matter, it's a waste of
time to call witnesses.

GROSS: So your understanding is the reason why Lieutenant Watada can't use
the Nuremberg defense to justify his refusal to go to Iraq is that you can't
try in the military court whether a war is legal or not.

Mr. FIDELL: It's a political question. That's what the judge held and the
judge cited an earlier ruling of the United States Court of Appeals for that
proposition. I think that ruling would probably be sustained. And given that
ruling, no purpose is served by taking evidence because if there's nothing
there as a matter of law, why burden the court and the record with testimony
that's irrelevant?

GROSS: In what court would you decide whether a war is legal or not?

Mr. FIDELL: In no court at all. You decide it in Congress. The remedy for
an illegal war is for Congress to either defund it or if the initiation of the
war is viewed as a high crime and misdemeanor, then there's a process in the
Constitution.

GROSS: For the charge of refusing to deploy to Iraq, Lieutenant Watada faces
a possible two-year sentence, but for the charges of conduct unbecoming for
public statements that he made in opposition to the war and how he got into
the war, he faces four years, so a total of six. Does that seem, in terms of
military justice, like a lot of years for speech?

Mr. FIDELL: I could imagine speech that was so subversive of the national
interest that it could conceivably be punished very severely. Whether this is
too severe or not severe enough, I don't think we're in a position to say at
the moment. Frankly, I don't think he's going to spend a lot of time in the
stockade. I think he's going to be out fairly soon. They're not--no purpose
is really served by keeping him for a prolonged period. But I do think that,
if he is convicted, he may well face some time in prison.

GROSS: Well, the purpose would be, in part, maybe to set an example?

Mr. FIDELL: Yes. And that is a proper purpose of the military justice
system. It's to punish, to deter and to send a message.

GROSS: What precedence might this court-martial set?

Mr. FIDELL: I think it's unlikely this case will set any precedence, to be
honest. There are occasional cases where free speech issues come up in the
military. They're relatively infrequent. I think it's a case that if it's
pursued straight through the process may lead to an interesting appellate
decision, but I don't know that it's really plowing new ground. I think it's
an interesting example of the limits of free speech in the military and in a
way a useful reminder. So I think Lieutenant Watada has done the country a
favor, but it may not be the favor that he intended. The favor that I think
he's conferring is a reminder of the importance of civilian control of the
military and of the, I think in many senses, salutary restraint that military
personnel have shown over the years in terms of the public issues facing the
country.

GROSS: Eugene Fidell, thank you so much.

Mr. FIDELL: My privilege.

GROSS: Eugene Fidell is the president of the National Institute of Military
Justice. Earlier we heard from Lieutenant Ehren Watada and his lawyer.
Watada's court-martial is scheduled for February 5th.

(Credits)

GROSS: I'm Terry Gross.
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