That was one of the big questions among reporters and anti-war observers as the court-martial of Lt. Ehren Watada collapsed yesterday, ending in a mistrial.
You’ll have to get up to speed on the stipulation at the center of the mistrial to follow this, but once you get up to speed, come back and consider a very good point that was raised by Seattle Times reporter Hal Bernton at a military press conference held yesterday afternoon after the mistrial had been declared.
Bernton read back some of his notes from Monday, day one of the court-martial, when the judge, Lt. Col. John Head, had asked Watada to explain his understanding of the stipulation. It’s important to note here that on Wednesday, one of the more dramatic moments had been the judge essentially halting the court-martial proceedings so that he could personally question Watada about the stipulation. But as Bernton pointed out, the fact was that two days earlier, on Monday, the judge had done basically the same thing, asking essentially the same questions of Watada about the stipulation—and receiving the same answers.
Bernton wondered: Why did the judge suddenly decide on Wednesday that the stipulation was not what Watada thought it was, and that this was a court-martial-upending problem?
It was a good question, considering that the judge’s reconsideration of the stipulation came one day after the prosecution had rested its case—a case the prosecutors had built in large part on the stipulation that the judge had decided to declare inoperative. The Fort Lewis spokespeople didn’t really have a good answer to Bernton’s question. “I can’t speak for the judge,” said Lt. Col. Robert Resnick, an expert on military justice brought in to help explain the case to reporters.
From my vantage-point during the court-martial, the judge appeared to be blaming the mistrial on the military prosecutors’ faulty understanding of the stipulation. But it was really the judge who had allowed the stipulation, let the court-martial proceed, and then suddenly come to a new understanding of the stipulation one day after the prosecution had rested its case.
Notes taken by my intern, Sage Van Wing, at the court-martial on Monday confirm what Bernton recounted.
At the heart of the judge’s rejection of the stipulation on Wednesday was his concern that it was in fact a “confessional stipulation”—a stipulation sufficient for convicting Watada on the charge of not deploying to Iraq—while Watada apparently believed he had signed only a “stipulation of fact” and still retained a legitimate defense against the charge of failing to deploy (i.e., the war is “illegal”).
The judge acted like this was news to him on Wednesday, but on Monday, under questioning from the judge about the stipulation, Watada had said, according to Sage’s notes:
My intent was that the order to deploy was an illegal order and that the war itself was illegal and that I had no other choice but to refuse. My intent was to refuse that order.
In other words, it was clear on Monday that Watada did not believe the stipulation, in which he only admits to the fact of not deploying, was a “confessional stipulation.” To put it another way, Watada agreed that he didn’t deploy, but he believed that his reason for not deploying—the “illegal” war—was his defense (although, in one of the more strange aspects of the trial, Watada was not allowed to raise that defense).
This is very wonky, but it’s important.
Nothing really changed between Monday and Wednesday in terms of the information available to the judge about Watada’s understanding of the stipulation. Watada’s request on Wednesday morning that the jury be told about his “illegal war” defense was the trigger for the renewed debate on Wednesday over the stipulation’s meaning, but that debate revealed nothing that wasn’t already clear on Monday. (And anyway Watada’s attorney, Eric Seitz, said after the mistrial that he had fully expected the judge to simply reject his proposed jury instruction on Wednesday morning and move on, letting the defense present its case. “Never ever has a proposed jury instruction triggered a mistrial,” Seitz said.)
So, again, what was the judge thinking? Here are the three main theories, all of them based on pure conjecture since the judge won’t be explaining his inner thoughts on this matter:
1) The judge was legitimately slow on the uptake, only realizing half-way through the court-martial that he had allowed in a stipulation that he believed was fatally flawed.
2) The judge had a sincere change of heart about excluding Watada’s “illegal war” defense and moved to scuttle the court-martial so that in a new court-martial (if one ever happens) Watada might be allowed to challenge the legality of the Iraq war.
3) The judge believed the court-martial wasn’t going the military’s way and moved to scuttle the trial before Watada ever got to take the stand.