Soldier's lawyers seek OK to put Iraq war on trial

The opening round in the court-martial of 1st Lt. Ehren Watada could be key to defense hopes of putting the Iraq war on trial along with this Fort Lewis Army officer who refused to deploy to Iraq.

At a pretrial hearing today, Watada's attorneys will try to persuade a military judge that they should be allowed to argue that the war is illegal, in part because it violates military regulations that wars be fought in accordance with the United Nations charter.

That stance is crucial to the defense of Watada, who faces charges of missing a troop movement and conduct unbecoming an officer.

"The entire scope of the trial is going to be pretty much decided by the judge's ruling," said Eric Seitz, Watada's civilian defense attorney.

The hearing, expected to last at least a day, is a prelude to a court-martial scheduled to begin next month.

Watada, one of the first commissioned Army officers to refuse to serve in Iraq, has drawn international attention for his stand. He also has joined with peace groups to attack the Bush administration's handling of the war.

"Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and the rules of engagement of desperate field commanders will ultimately force them to be party to war crime," Watada said in an Aug. 12 speech to the Veterans for Peace in Seattle. That speech is cited by the Army as evidence of misconduct.

Watada says he is not a conscientious objector opposed to all wars. He has offered to serve in Afghanistan, but the military rejected that offer.

Prosecutors say it's not up to Army officers to determine the legality of a war and have noted that no U.S. court has ever ruled that the Iraq war is illegal. At today's hearing, they are expected to argue that quitting one's unit because of conscience, religion, ethical or other considerations is not a valid defense, and that Watada's views on the war are irrelevant.

A military judge will preside over the hearing. At the actual court-martial, Watada will be judged by a panel of soldiers, the military equivalent of a jury.

If convicted on all charges of missing a troop movement and conduct unbecoming an officer, Watada risks six years in prison.

Since refusing to deploy to Iraq, Watada has worked a desk job at Fort Lewis while his unit served in Mosul, and more recently, Baghdad. In the months after the June deployment, the Fort Lewis brigade of more than 4,000 soldiers has lost 11 soldiers in Iraq.

"People say, 'He is a coward. He deserted his soldiers,' " Watada said in an interview earlier this week. "I am here because I care about my soldiers, the ones who died and the ones who are going to die."

Watada said his refusal to serve in Iraq was based, in part, on his review of the Army Field Manual, which states in a section entitled "Commencement of Hostilities" that "The Charter of the United Nations makes illegal the threat or use of force contrary to the purpose of the United Nations."

Watada said he believes the United States did not get the necessary U.N. approvals to launch the invasion that began in March 2003.

U.S. officials dispute that analysis, saying the invasion was authorized by a November 2002 Security Council resolution, which threatened "serious consequences" should Iraq fail to fully comply with terms of weapons inspections.

That resolution gave the United States full authority to invade Iraq, according to Richard Grenell, a spokesman for the U.S. mission to the United Nations.

But other diplomats — including former U.N. Secretary-General Kofi Annan — have questioned whether that resolution legalized the U.S. invasion and noted that the United States was unsuccessful in an effort to get a more explicit resolution approved in winter 2003.

Some scholars of international law also have questioned the legality of the invasion. One of the most outspoken has been Francis Boyle, a University of Illinois law professor and vocal critic of the Bush administration. Watada's attorney wants to call Boyle as a witness at the court-martial.

Boyle said the Army Field Manual references to the U.N. charter were inserted in 1956, by Army attorney Richard Baxter, and reflected the experiences of World War II and the wars of aggression waged by Germany and Japan.

"It is a field manual intended primarily for officers," Boyle said. "It is not intended as a treatise on international law, but it made clear the United Nations charter covers the use of force."

The pretrial hearing also is likely to include some sparring over prosecutors' efforts to compel journalists to testify about the accuracy of their articles. At least two journalists have been subpoenaed in the court-martial case, including Oakland, Calif.-based Sarah Olson, an independent journalist and radio producer who interviewed Watada in May.

Olson said the government subpoena is a threat to the free press, since it would chill the voices of military personnel who want to express dissenting views to the media.

Olson did not say whether she would comply with the subpoena.

Seattle Times researcher David Turim contributed to this report.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com