In doing so, they set up an unusual collision between a man who is believed to be the first officer to refuse duty in Iraq and a military justice system that is now effectively being asked to rule on the war's legality.
In a packed hearing room on this Army base south of Seattle Thursday, lawyers for Lt. Watada used the opportunity to put the war itself on trial, trying to prove he was right to see the war as "manifestly illegal," and as a result, to refuse to participate. "A soldier has an obligation to disobey illegal orders," said Francis Boyle, a Harvard-trained professor of international law who testified on behalf of Lt. Watada and whose mentor wrote the Army's field manual for land warfare. "Under the circumstances of this war, if he had deployed, he would have been facilitating a Nuremberg crime against peace."
Boyle, along with a former United Nations Undersecretary-General and a retired army colonel, argued that the U.S. decision to attack Iraq in 2003 without U.N. authorization made the war illegal from the beginning. He went further, arguing that the failure of the Bush Administration to find either weapons of mass destruction or a provable link between Iraq and the Sept. 11 attacks showed that Congress was persuaded "by means of fraud" when it voted to authorize the war.
Lt. Watada, 28, is from Honolulu and was part of a Stryker unit that deployed to Iraq on June 22 — without him. He joined the Army after Sept. 11 and initially served in South Korea, where he received stellar marks from his superiors. As recently as last summer he was willing to go to Iraq. But the more he learned about the war, the more doubts he had, according to his public statements.
In January, after he became convinced that the war was illegal, he tried to resign rather than go to Iraq, but the Army wouldn't let him do so. As a compromise, he asked to be sent instead to Afghanistan, a war he supports. His request was not granted.
At the hearing yesterday — a precursor to a court-martial known as an Article 32 hearing — Watada sat calmly in his fatigues, gave no statement, and during breaks answered no questions from the many reporters gathered to watch the proceedings. However, military prosecutors played several clips of Lt. Watada speaking in public about his reasons for not deploying.
In one clip, from a Veterans for Peace convention held last weekend in Seattle, Watada explained that he is trying to put forward a "radical idea" first born during the Vietnam War. "The idea is this," he said. "That to stop an illegal and unjust war, the soldiers and service members can choose to stop fighting it."
That, prosecutors said, is exactly what they most fear. To give credence to Lt. Watada's argument, they said, would create a breakdown in military order and discipline. "It's just dangerous in our Army to allow that to happen," said Capt. Dan Kuecker, one of the prosecutors. Whether the war is legal, he said, "is not a decision for a lieutenant to make — it's a decision for politicians and legislators." Watada's behavior, Capt. Kuecker told the hearing, "is dishonorable and it is disgraceful."
Lt. Col. Mark Keith, who presided over the proceeding, is expected to decide within the next few days whether to recommend a court-martial for Lt. Watada. If one takes place, and Watada is convicted, he could face up to seven years in prison.