NEAL CONAN, host:
Military prosecutors this week made their case against Army Lieutenant Ehren Watada, accusing him of refusing to ship out with his unit and of conduct unbecoming an officer. His lawyer disputes the charges, saying, at most, he engaged in an act of civil disobedience.
Watada, who is not the first officer to refuse to deploy to Iraq, is the first to be court-martialed. He does not argue that he refused to deploy, but pleaded not guilty. He contends the War in Iraq is illegal and says he had no other choice but to refuse the order. The judge in this case may not allow a defense on the legality of the war.
To explain the latest events in the case and what they could mean for the military, we're joined now but Eugene Fidell. He's a partner with the law firm Feldesman Tucker Leifer Fidell, and an expert on military law. He's with us from his office here in Washington, D.C., and it's nice to have you back on the program.
Mr. EUGENE FIDELL (Attorney, Feldesman Tucker Leifer Fidell; Expert on Military Law): Hi, Neal.
CONAN: The judge in this case refused, ruled out much of the defense's plan -much of the planned defense.
Mr. FIDELL: Right. The defense really got cut off at the knees by the military judge. The basic question was whether the defense could put the war on trial, and the judge said look, that's a political question. It doesn't generate a defense. You know, assuming the war is illegal, that wouldn't be a defense to these charges.
CONAN: And so the defendant is not allowed to present the defense he'd like.
Mr. FIDELL: That's correct. And, you know, there are times when that happens in a legal system. If you have a theory that either, you know, is part of your case or part of your defense against charges by the government and there's no legal support for the defense, it's a waste of courtroom time to have a parade of witnesses.
CONAN: Given that, doesn't Lieutenant Watada face an uphill battle?
Mr. FIDELL: I think this an uphill battle. I think it's been an uphill battle all along, but presumably, he - properly advised. He does have counsel - was aware of that at the beginning. There are elements of this that are more in the nature of a political statement than the conventional defense against criminal charges. But, you know, that's not the first time that's happened.
CONAN: Mm-hmm. And as we mentioned, his lawyer says this is a case of civil disobedience. Lieutenant Watada has appeared at many anti-war rallies, though not in uniform, to denounce the war.
Mr. FIDELL: Right. I think there is a lot to that, and it requires some exploration of what it means to engage in civil disobedience. In civil disobedience - which has a very proud tradition that includes Mahatma Gandhi, it includes Dr. King, you know, there's no shortage of examples - part of the concept is that you dramatize an important public issue by sacrificing yourself in some way, whether it - not necessarily, you know, in terms of giving up your life, but in terms of exposing yourself through adverse action by the government.
And that, I think, is what Lieutenant Watada has done here. To the extent that you and I, Neal, are having this conversation and a few people may be listening in, he's prevailed in the sense that he's generated some public interest - or at least public attention to his views.
CONAN: Well, so he's trying to send a message. Is the prosecution?
Mr. FIDELL: I think so. The prosecution could have confined itself to charging him with missing movement, which is - in my view - sort of the gravamen of the offenses that he's charged with. and I don't want to convict him, by the way, on radio.
Mr. FIDELL: Let's remember that he's entitled to a trial, and I really mean that. But the prosecution could have had a very, very easy task of trying the charge of missing movement, which is a familiar offense to military lawyers. It's like AWOL or desertion. It's in that category of absence offenses. Had they done that, the trial probably would've been over after about half an hour. That's an exaggeration, but you take my point.
CONAN: And so they added the charges of conduct unbecoming.
Mr. FIDELL: They added charges of conduct unbecoming an officer under Article 133 of the Uniform Code of Military Justice, and that's a way of putting on the table some of the things that Lieutenant Watada is accused of having said that are problematic - particularly problematic from the military standpoint.
It may be worth quoting some of the language from the charges. Would that be all right?
Mr. FIDELL: Here are some of the things he said. This was at a convention. Today, I speak with you about a radical idea, that to stop an illegal and unjust war, the soldiers can choose to stop fighting it. He later said if soldiers realize this war - this is according to the charges, again. This isn't proven yet, at least not that I know of. But if soldiers realize 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, and so forth.
So you can see why that would be kind of waving a red flag in front of the military and why they might, as you point out, want to teach a lesson of their own.
CONAN: Mm-hmm. What kind of punishment is Lieutenant Watada facing if he's convicted?
Mr. FIDELL: On the present charges, it's four years confinement. And, of course, he could be dismissed from the service, which is the officer equivalent of a dishonorable discharge. It's a very bad thing.
CONAN: And eventually, could his case be appealed to civilian courts where we might be able to make that war-is-illegal defense?
Mr. FIDELL: Yes. The appellate structure is kind of an interesting layer cake. From the court-martial itself, the case goes to the convening authority, the officer who called the court into being. Then it goes to the Army Court of Criminal Appeals, and then it goes to the U.S. Court of Appeals for the Armed Forces. That is a civilian court - five judges appointed by the president, confirmed by the Senate. And he could even try to take the case - assuming he doesn't get any traction before that - to the Supreme Court of the United States.
CONAN: And quickly, is this case unusual? We certainly saw similar kinds of things happening during the Vietnam War.
Mr. FIDELL: Right. It is unusual. Of course, the major thing that's changed since Vietnam is we no longer have conscription, so everybody's who in the military - they may not like what they're doing at the moment, or they may be held past the point they planned to get out - but basically, they're there as volunteers.
And what's interesting to me is that there is a case that arose in the German armed forces which is quite interesting. This was a case of an officer who was penalized and demoted, in fact, for refusing to perform some duties that had the effect of supporting operations in Iraq - this is operations of the German armed forces - and that went against his strongly held views. And the German high court that decided the case held that the German armed forces had a duty to try to accommodate his views.
That's not the kind of outcome that I personally would anticipate here, but it's interesting that other countries might be more sympathetic to Lieutenant Watada, who has apparently expressed a willingness to fight in Afghanistan, but not in Iraq.
CONAN: Eugene, thanks very much for being with us today, appreciate your time.
Mr. FIDELL: Neal, it's always a pleasure.
CONAN: Eugene Fidell joined us today from his office here in Washington, D.C. You're listening to TALK OF THE NATION from NPR News.
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