This is what I would have said had I been allowed to testify at Lt. Watada's court martial:
The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.
Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."
Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.
Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches.
The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians in Haditha and other Iraqi cities are also war crimes.
Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial - for the commission of war crimes.
Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
The above, noted by Mia, is from Marjorie Cohn's "Watada Beats the Government" (CounterPunch). Cohn is president of the National Lawyers Guild and she was a guest today on KPFA's Flashpoints where she was interviewed by Nora Barrows-Friedman about the meaning of Judge Toilet declaring a mistrial in the court-martial of Ehren Watada. Rebecca's written the interview here and Cohen's point regarding no retrial is that, military or civilian, courts have to respect the laws of the land and Watada cannot be tried again because that would be double-jeopardy. As Mike pointed out (about the article Mia's highlighting), "I know she's [Cohn] right about the law because she knows it but I know this administration isn't really focused on what's legal and what isn't."
Lynda noted this from the report by Geoffrey Millard (Truthout) that was aired on Democracy Now! today ("Court Martial of First Officer to Refuse Iraq Deployment Ends in Mistrial")
GEOFFREY MILLARD: The stipulation of fact -- you know, the judge all of a sudden today started referring to it as a confessional stipulation of fact. Why was it to him, all of a sudden, a confessional stipulation of fact, and to you -- and it appeared to the prosecution still just a stipulation of fact?
ERIC SEITZ: I don't know what the judge is talking about. This stipulation didn't change from last week, when we ran it past the judge and he approved it. It didn't change from Monday, when he went through it in detail, line by line, with Ehren and then approved it. And it didn't change from yesterday, when he went through it again, because he had some issues about it. The judge acted on his own for his own reasons, and I frankly don't understand any more than the government counsel does what his thinking was or what his legal basis was, because I don't believe there was any.
GEOFFREY MILLARD: Eric, is this a victory for you with the mistrial?
ERIC SEITZ: We think it may become a very significant victory, depending upon what happens between now and the next time we go back to court. My firm belief professionally is that the consequence of granting a mistrial over our wishes means that because jeopardy attached, so the case cannot be retried. I don't know that the judge realizes that. I'm not sure that government counsel appreciates that or the spokespeople for the Army today, but in my experience and based upon my professional judgment, there is a very strong likelihood that they cannot retry this case. And if it is in fact the end of this case, then, yes, that's a very significant event and a terrific victory.
For Millard's coverage of yesterday's events and other Truthout coverage of the court-martial, click here. (That takes you to the folder they've created just for the court-martial coverage.) And Bryan notes Bill Simpich's "The Watada Mistrial: Here's What Really Happened" (Truthout):
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." (Seattle Times)
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 Seattle Times 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." (Los Angeles Times)
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.
Charlie notes Aaron Glantz' "Reprieve for Officer Who Denounced 'Immoral War'" (IPS) on the Ehren Watada court-martial:
Lt. Watada's attorney, Eric Seitz, blamed the suppression of what he called his client's "legitimate defence" for the mistrial.
"Every time the government has tried to prevent political speech, which they are attempting to punish, from infusing the trial proceedings it has created a major mess and many of those cases resulted in mistrials," Seitz said, mentioning a few famous cases he has handled over the years, such as the 1969 Chicago conspiracy trial where seven peace activists, including Tom Hayden and Bobby Seale, were charged with crossing state lines with the intent to incite antiwar riots and disrupt the 1968 Democratic National Convention in Chicago.
"The government tried in artificial ways to prevent the defendants from explaining in their own way why they were there and why they did what they did," Seitz said. "But there is a contradiction, because they are the core issues of what led the defendant from being there in the first place."
Antiwar activists who have been monitoring the Watada trial unanimously cheered its outcome.
"I was in a very similar situation during Vietnam," noted Mike Wong, a San Francisco social worker who deserted the Army rather than fight in the Vietnam War.
Like dozens of other peace activists, Wong traveled to Fort Lewis to observe the court martial first hand. He said more and more service members are following Lt. Watada's example and opposing the war.
Wong said a GI Rights Hotline set up to help soldiers who want to get out of Iraq or out of the army is now fielding 2,000 calls a month.
"There are GIs that are rebelling in different ways," he added. "Even in Iraq there are GIs who have their own blogs, blogging against the war while they're in Iraq. GI resistance is growing:"
At trial, one of Ehren Watada's superiors, Lt. Col. William James, testified that Lt. Watada's public comments opposing the Iraq war "lowered morale" by "creating a lot of discussion in the chow hall" when soldiers should have been "zeroing in their weapons and kissing their wives goodbye."
Geoff Millard, an Iraq war veteran who covered the Watada court martial for the website truthout.org, said that was one of the most significant statements of the trial.
"The military doesn't want the American public to know that soldiers are talking about this in the barracks," Millard said. "Some soldiers think he's a disgrace and others think he's a frickin' hero. But what it's causing is for soldiers to discuss, to debate, and what's really frightening to this administration is that soldiers are thinking. They don't want soldiers to think. They want soldiers to follow orders."
Ehren Watada's stand mattered. It was good to see Norman Solomon and John Nichols step up to the plate this week (that's not sarcasm) but it was sad to see how many others took a pass. It is really sad that there are so many who didn't write about him, who haven't written about any of the war resisters to emerge in the summer of 2006. Whether they go to Canada or remain in the United States, standing up publicy takes a lot of courage. (Hence Courage to Resist.) That courage isn't honored by ignoring them to chase down the pablum on Obama or whatever the flavor of the day is. Nor does that nonsense end the war.
They're just there to try and make the people free,
But the way that they're doing it, it don't seem like that to me.
Just more blood-letting and misery and tears
That this poor country's known for the last twenty years,
And the war drags on.
-- words and lyrics by Mick Softly (available on Donovan's Fairytale)
Last Thursday, we noted AP's number for the US troops killed in Iraq since the start of the illegal war was 3084. Today it hit 3114. What is the magic number? At what point does it start to matter to Congress or a lot of independent media? Apparently, it hasn't been reached yet.
Speaking of numbers, a visitor named Nina (not the community's Nina) e-mailed regarding a New York Times' editorial about the money lost under Bremer. The editorial maintains it was Iraqi money and not US tax dollars. It was both. It was the money held during the sanctions period (and look at that total and be appalled). It was also US tax dollars. Bremer wasn't paid out of the Iraqi money. The Iraqi money wasn't transported over via the Iraqi money. Since Bremer elected not to keep in a bank, it was guarded and checked on (such as it was in both cases) by US tax dollars. Saying that it was 'only' Iraqi monies may be an attempt to mitigate the jaw dropping but the reality is that it was US tax dollars as well and anyone saying differently isn't very bright. The money was physically transported overseas, it was physically delivered to the Green Zone, it was supposedly protected and checked on, and one of Bremer's roles (and other Americans as well) was to keep an accounting of it. All that cost US tax dollars.
Nina's second question was about corpses discovered today in Iraq? Reuters says 16 in Mosul and 20 in Baghdad.
That should have been in the snapshot today and wasn't. There were internet problems and once it was finally possible to start writing it, Blogger/Blogspot kept going out. (There's a "failed to connect" message at the bottom of the compose screen when Blogger/Blogspot goes out.) The snapshot wasn't finished when I posted it. (Check the opening paragraph and try to find the end of that sentence.) But the failed to connect message had gone away for the first time in ten minutes so it was going up right then regardless of whether it was finished or not.
Had there been more time we would have noted the latest in the murder of Hashim Ibrahim Awad. From Reuters:
U.S. Marine who had admitted firing several rounds at an Iraqi grandfather after his unit kidnapped the man asked a military court on Thursday to withdraw his guilty plea.
Cpl. Trent Thomas, 25, pleaded guilty on Jan. 18 to murder, conspiracy, larceny housebreaking, kidnapping and lying to investigators about the incident. But as a military court was considering his punishment at Camp Pendleton, north of San Diego, his lawyer abruptly requested that the plea be removed.
Hopefully, we're far enough into this entry that we've lost the casual visitors so I need to bring up something that's not getting media attention. This month some US troops will be returning (to California, in fact). While that's good news, others outside the unit, some of whom have been in Iraq for over a year, are wondering why they're not going home while people who just arrived in September are?
My position is that all US troops should be brought home now. But I did promise, this morning on the phone, that I would note that. I do understand the anger over this, and there is a lot of anger over this, because you've got people who've been there forever, you've got people who were stop lossed and, if it were me, I'd be asking the same question: "Why am I stationed here month after month and these people who just arrived in September are getting ready to go home?" That question (and the anger) doesn't go to the ones going home. It goes up to the leadership, that's where it's aimed, because, like so much about the illegal war, it's not making sense to people serving on the ground in Iraq. If it does get press coverage (so far it's been ignored and it's been pointed out to at least two mainstream reporters) when it's finally noticed, let's be clear here, that the problem is not with the ones fortunate enough to return after five months, the anger is at the leadership that's kept many over there for over a year and isn't in any rush to send them home.
Changing topics, Jeremy Brecher & Brendan Smith have covered Watada in "online exclusives" for The Nation. Nation readers (of the print magazine) never heard his name until the 2007 issues began. There, they got to stumble upon his name for the first time where he was called a coward (great first impression!) and then, a page after, got a sidebar on him. We have noted all three of their previous pieces and noted that they were 'online exclusives.' We have quoted from and linked to two of the three. (We didn't link to the mid-December piece which mentioned him in passing.) They have a new piece and we'll note it (and I'll echo an e-mail response Ava sent out, "Don't hide behind what they did, take responsibility for what you never covered"). It's another online exclusive. Why? I have no idea. I have no idea why the magazine doesn't want to cover him. It can't be because Brecher and Smith are males because, as we noted at The Third Estate Sunday Review this past Sunday, they just had an issue that featured nothing but males with the exception of Elizabeth Holtzman. How does that happen? How do you, from the left, put out an entire issue with byline after byline and only one is a woman? This is from "Will the Watada Mistrial Spark an End to the War?" ('online exclusive,' The Nation):
A new trial is believed to be unlikely before summer, if at all. The mistrial represents a significant victory for Watada, for the rights of military resisters and for the movement of civil resistance to US war crimes in Iraq.
On the surface, the ruling by Lieut. Col. John Head appears to result from a procedural technicality, but in fact it is a defeat for the Army's central goal in prosecuting the 28-year-old officer. The judge had gone to extraordinary lengths to try to keep Watada from achieving his objective of "putting the war on trial," ruling that Watada's motivations for refusing to deploy with his unit were "irrelevant" and that no witnesses could testify on the illegality of the war.
But in its zeal to exclude the real meaning of the case, the court tied itself up in procedural knots. Prosecutors wanted the judge to find that Watada had agreed to pretrial stipulations that he had violated his duty when he refused to show up for movement to Iraq. But Watada made clear that he believed his duty, under his oath and military law, was to refuse to participate in an illegal war. As the underlying question of the war's illegality emerged like a family secret in the courtroom, the judge agreed to the prosecutor's motion to declare a mistrial. But Time.com reported that Watada's attorney, Eric Seitz, says he will file an immediate motion to dismiss the case on grounds of double jeopardy if the Army tries to resurrect it.
Tori noted that and feels that if Brecher and Smith want to appear in print, "They'll need to find a way to offer useless fawning over elected Democrats." And for the record, the sidebar was linked to. The sidebar on Ehren Watada. We didn't link to an article where he was called a coward. We did link to the sidebar. We didn't do it via The Nation (where it was subscribers' only -- consider it a 'non-online exclusive') but we did it via Yahoo where some idiot didn't seem to realize it was posted in full. [See, I do hear about the e-mails that I don't read (ref previous entry), I'm hearing about that one right now. Don't send us your dumb ass excuses and a whine that the thing wasn't linked to. Why would we link to something at The Nation that only subcribers could see when it was available to everyone on Yahoo News?)
A dem who got no fawning coverage from The Elector during the campaign season is the topic of the next highlight. KeShawn notes Cynthia McKinney's speech "The World Can't Wait, Won't Wait, Isn't Waiting" (Black Agenda Report):
It is among the greatest pleasures of my life to have been invited to participate in this Conference dedicated to peace. I look forward to joining the international community of activists dedicated to change based on the principles of dignity, justice, self-determination, and peace for all the peoples of the world.
Everyone in this room and every participant in this Conference is here because we want peace. Peace and justice.
[. . .]
Not too long ago, I was asked by Debra Sweet to endorse the activities of the American peace-seeking organization named World Can't Wait. They advocate the impeachment of George Bush and other Members of his Administration because in their view, the World Can't Wait. I agree with them. And after having been defeated for the second time by an unsupportive Democratic Party and Republican voters who crossed over and voted in the Democratic Primary for my opponent, and knowing that George Bush had earned impeachment, I decided that I would do it if no one else would. So, on my last day in Congress, after 12 years of service to my people and my country, I offered Articles of Impeachment against President Bush, Vice President Cheney, and Secretary of State Rice.
Impeachment is America's roadmap back to dignity. Impeachment is the Constitutional way to handle an Administration that has, from the outset, violated so many tenets of the U.S. Constitution. It is also a way of saying "No, we do not condone what has been done in our name, and we are not complicit." The first time I felt the sting of Republican retribution and Democratic Party indifference was in 2002 when I questioned the Administration's explanation of what happened on September 11th, 2001. I am the Member of Congress who asked the simple question, "What did the Bush Administration know and when did it know it, about the tragic events of September 11th." After I was defeated in 2002, I traveled all over my country supporting the anti-war movement and informing the American people of the lies of the Bush Administration. The film "American Blackout" tells the whole story of how Republicans stole two Presidential elections and of how Republicans stole two elections from me.
An this a good time to note an event Zach's e-mailed about:
A Special Evening With Congresswoman Cynthia McKinney & Screening of the Film American Blackout
Wednesday February 21st, 7:00 pm
And if you're curious as to how Bully Boy intends to avoid Crawford for at least part of his upcoming vacation (never ending vacation), check out Cedric's "Bully Boy books trip (humor)" and Wally's "THIS JUST IN! BULLY BOY GOES TO BRAZIL!" (joint-post).
and the war drags on
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