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Wednesday, January 17, 2007 - Page updated at 12:00 AM

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Watada can't base defense on war's legality, judge says

Seattle Times staff reporter

In a major blow to the court-martial defense of 1st Lt. Ehren Watada, a military judge has ruled that the Fort Lewis Army officer cannot try to justify his refusal to deploy to Iraq by raising questions about the legality of the war.

The ruling released Tuesday sets the stage for a Feb. 5 court-martial trial, where Watada faces up to six years in prison for his failure to join his brigade in Iraq last June and his outspoken attacks on the Bush administration conduct of the war.

Defense attorneys had hoped to argue that the war is illegal, in part, because it violated Army regulations that call for wars to be launched in accordance with the United Nations charter.

But in a ruling, Lt. Col. John Head said that "whether the war is lawful" is a political question that could not be judged in a military court.

Head, citing federal court precedents, also rejected defense attorneys' claim that Watada's First Amendment rights shielded him from charges relating to his criticism of the war.

Instead, Head ruled that there are limits to the free-speech rights of military personnel and that a military panel should decide whether Watada's criticism of the war amounted to officer misconduct that could have endangered the morale, loyalty and discipline of troops.

"We have been stripped of every defense," said Eric Seitz, a civilian attorney representing Watada. "This is a disciplinary system, not a justice system. Otherwise, we would have been entitled to defend ourselves."

Army officials, in a statement accompanying the ruling, said they had full confidence in the military-justice system to ensure that Watada gets a fair trial. "Throughout both the investigatory and judicial process, the Army steadfastly protects the rights of the accused and potential witnesses."

Watada's court-martial comes as the Bush administration seeks to bolster flagging public support for a plan to send more troops to Iraq.

The upcoming trial has become a rallying point for some in the anti-war movement, and over the weekend some activists are planning a two-day forum in Tacoma that seeks to put the war on trial.

"I think that it [the judge's decision] makes the citizen hearing much more important," said Cindy Sousa, who serves on the planning committee for forum.

Watada is a native of Hawaii who was an officer with the 3rd Brigade, 2nd Infantry Division as it deployed to Iraq. Watada said he is not a conscientious objector and offered to deploy to Afghanistan. But he cited specific objections to the legality of the war in Iraq and its conduct by U.S. troops.

"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 crimes," Watada said in an Aug. 12 speech to the Veterans for Peace in Seattle.

That speech is cited by the Army as evidence in one of four charges of conduct unbecoming an officer that Watada will face at the court-martial hearing.

If convicted on those four charges, he faces up to four years in prison, with up to two more for missing his brigade's deployment to Iraq. Watada's guilt or innocence will be determined by a panel of at least five Army officers.

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

Copyright © 2007 The Seattle Times Company

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