Ruth: Having children and grandchildren, lots and lots of both, is a joy and also a learning experience. How so?
Well there are things you learn that you can take granted, assume everyone grasped, and then something comes along to demonstrate how important the knowledge gained over the years is and how everyone has not grasped it.
That was the message that came through loud and clear as I followed Ehren Watada's court-martial which ended Wednesday in a mistrial. It was a simple message, so simple that I toyed with writing about something else, but my eldest son pointed out to me that the simple message is one the Bully Boy apparently has never understood.
So for anyone who has never gotten the message, playground rules exist for a reason.
I did not spend years exclaiming "Play nice!" or "Share!" or even "Everyone gets a turn!" because I was interested in finding out how far my voice could travel. There was a point to the rules and that is why they were passed on to me when I was a child and why parents and care givers pass them on to children to this day.
If everyone is treated fairly on the playground and obeys the same rules, disagreements are fewer and, when they pop up, easier to solve.
Lieutenant Colonel John Head, who has been nicknamed "Judge Toilet," apparently never learned the basic principles of playground rules. He was the presiding officer in Lieutenant Ehren Watada's court-martial. Before the proceedings even began, Judge Toilet had decided that all things are not equal nor are all sides. Which is how he comes to the determination that someone facing four years in prison is not entitled to offer his best defense.
Earlier, Lieutenant Watada was facing six years in prison but this was reduced to four through an agreement. As part of the agreement, the prosecution would drop their plan to call journalists to the stand to swear that their reporting of Lieutenant Watada's statements were accurate. In the agreement, also known as a "stipulation," Lieutenant Watada agreed that he made the comments reported. In return, the prosecution agreed that reporters would not need to testify and that the maximum sentencing Lieutenant Watada would face would be four years in prison, if found guilty of all charges, and not six years.
This was agreed to, by both sides, well before the court-martial began. His honor, Judge Toilet, saw and reviewed the agreement. He would even instruct the military panel made up of seven officers as to the content and meaning of the agreement. That should have taken care of the agreement.
Weeks before the court-martial began, Judge Toilet decided that Lieutenant Watada could be tried for statements he made against the war. Lieutenant Watada, based on his studies, believes, as many do, that the war in Iraq is both illegal and immoral. His public statements explained why he believed that and how he came to that belief. Basic fairness on the playground dictates that if an adult is trying to determine why or how something happened, the adult does not tell one side, "I do not want to hear from you."
However, that is how Judge Toilet handled the manner. He would allow the prosecution to try Lieutenant Watada for his statements yet he would not allow the defense to address the statements. Some would call that playing favorites, some would refer to it as having "pets," but most would quickly see that approach did not meet the basic requirement for fairness.
On Monday, when both sides appeared before Judge Toilet, not only did the judge agree to pay for transportation of prosecution witnesses but not for the defense witnesses, he continued to refuse to allow the defense to call legal experts such as Michael Ratner of the Center for Constitutional Rights and Marjorie Cohn of the National Lawyers Guild. It was as though Judge Toilet had pulled playground duty and intended to punish someone for it.
Seven officers were selected to serve on the jury or military panel and even in that selection, where the defense and the prosecution should have been making the decisions, Judge Toilet could not allow the two sides to sort it out among themselves but insisted upon asking questions of the witnesses that the prosecution should have been asking. It was obvious that he was the pushy parent all the other kids dread seeing and cannot stop complaining about to their own parents afterwards, "He lets them get away with everything!"
As a parent, I would shush my children with, "No one is playing favorites." But I would keep my eyes and ears open to see if indeed that was the case. Tuesday, the prosecution argued their case and Judge Toilet, possibly mindful that other adults were watching, played it a bit more fair and allowed the prosecution to bury themselves during the questioning of their own witnesses who, at one point or another, would back up Lieutenant Watada.
Reporter Aaron Glantz explained Tuesday's events to Sandra Lupien on The KPFA Evening News. "The prosecution had 3 witnesses," he stated. "It did not go as well as the prosecution would have liked . . . Another thing that did not go well for the prosecution today was that their own witnesses clearly showed that Lt. Watada tried other methods of expressing" his feelings regarding the war "internally within the military, before coming forward to speak to the public."
The testimonies, from prosecution witnesses, only ended up bolstering the defense's arguments.
Apparently, Tuesday night was spent with Judge Toilet stewing at how poorly his "pets" had done and determined to toss even the appearance of fairness out the window which is how we arrive at his behavior on Wednesday.
The defense was to present their arguments and call two witnesses, Lieutenant Watada and one of his superiors. At this point, it was assumed that testimony would wrap on Wednesday with closing arguments following on Thursday. Things were moving along and the military panel would soon be off among themselves determining whether or not they felt Lieutenant Watada was guilty of the charges brought against him?
But Judge Toilet had apparently been stewing over the miserable job the prosecution had done on Tuesday and he immediately started grumbling about "mistrial." This is the sort of behaivor, in children, that leads to statements like, "Well, it's my ball and I'm going home!" Only the children, the prosecution, were not the ones throwing the tantrum.
Judge Toilet was throwing the tantrum. Before Lieutenant Watada could take the stand, suddenly Judge Toilet was interested about the agreement the prosectution and the defense had agreed to earlier. It was the same agreement on Wednesday that it had been the week prior, the same agreement both sides had signed off on, the same agreement Judge Toilet had reviewed, the same agreement he had advised the jury of. Suddenly, it was a problem.
At first, the prosecution did not grasp what was happening and they maintained, as did the defense, that they were fully satisfied with the agreement. Both sides, in fact, continued to stand by the agreement; however, the prosecution finally picked up on the fact that Judge Toilet was tilting the field to their favor and quickly agreed that they did want a mistrial.
The defense continued to insist that they did not want a mistrial. That alone should have carried the case forward but this was not about "Play nice!" or "Play fair!" any longer, not even an appearance of it. This was about an adult being upset that his "pets" had performed so badly that he kept prodding them to demand a "do over" until they finally caught on and started whining, "I want a do over! That was not fair!"
So, shredding any appearence of concern for fairness or justice, Judge Toilet called a "do over."
As Marjorie Cohn explained to Nora Barrows-Friedman KPFA's Flashpoints that this action taken by the judge meant the court-martial was over. Ms. Cohn explained that was not just the court-martial that had been halted, but also any future court-martial because Lieutenant Watada, like anyone under United States law, cannot be subjected to double jeopardy. Ms. Cohn reviewed how the defense had objected to the declaration of a mistrial and Judge Toilet had ignored their objection. "The only thing that will defeat a finding of bouble jeopardy," she explained, "is if there was a manifest necessity to declare the mistrial." But she saw no "manifest necessity." Ms. Cohn was surprised by how badly the judge had bungled the proceedings. (Rebecca covers Ms. Cohn and Ms. Barrows-Friedman's discussion here, C.I. covers it here.)
If there is any justice in military justice, which is subject to the Constitution which forbids double jeopardy, Lieutenant Ehren Watada's court-martial is over. The court-martial that should never have begun should be finished.
On Flashpoints, Ms. Cohn made one other point that I wanted to emphasize. There seems to be some confusion in the public and mainstream press over Lieutenant Watada's actions. I was not surprised that, as usual, NPR's Terry Gross would be clueless, this is a woman who has made her entire life about being clueless. Two issues Ms. Cohn addressed with Ms. Barrows-Friedman were (a) the United Nations charter that some are dismissing as a valid basis for Lieutenant Watada's stand "is law, the charter, because our Constitution says 'Treaties shall be the supreme law of the land" and (b) Article 92 of the military's Uniform Code of Military Justice "actually says that soldiers have a duty to disobey unlawful orders."
The Third Estate Sunday Review's "Editorial: The court-martial is over" cites a report I did on retired Colonel Ann Wright's testimony at the Article 32 hearing of Lieutenant Watada in August. Colonel Wright taught a course in the Law of Land Warfare at the JFK Special Warfare Center at Fort Bragg where "I was able to explain to soldiers what the obligations and responsibilities of soldiers in an occupation scenario are." These were important points which is why I covered Colonel Wright's testimony not only in the report The Third Estate Sunday Review cited but also here.
To no surprise, Terry Gross missed those basic realities that are so important to Lieutenant Watada's case. Instead of addresing what an officer would have been taught, she elected to interview a man who advocates for Lieutenant Watada's court-martial and attempted to pass that off as "objective." That is the Terry Gross way and Ms. Gross has always struck me as the personfication of a character Carly Simon sang about in the song, "Dishonest Modesty:"
You're over thirty and underweight
Though you call yourself petite
And you hang around with all the clowns
Who think they're so elite
Well I don't expect humility
But what about some good old
Ms. Gross would do well to find some and to grasp that she, like myself, is well over thirty and "girlish" stopped being achievable many, many years ago. Grasping that would better serve listeners and journalism because she is a wee bit old to continue her giggle-giggle, "I don't know nothing, let's do the Bo-Ho dance!"
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