by Aaron Glantz

In a case that could have repercussions for free speech and press freedom in the United States, the U.S. military has subpoenaed two peace activists and a journalist in its case against Lt. Ehren Watada, the first commissioned officer to be court-martialed for refusing to serve in Iraq.

"I'm alarmed," said Olympia-based activist Phan Nguyen, who moderated a Jun. 7th press conference that marked Lt. Watada's first public opposition to the Iraq war.

"When I was first contacted by the lead prosecutor I was questioned as to conversations I had had with Lt. Watada and how this press conference had come about," he said.

Nguyen told IPS that military prosecutors asked who organized the press conference as well as who produced the video statement from Lt. Watada that was played at the gathering.

"This starts leading into how activists go about their procedures in opposing the military," Nguyen said. "I don't believe the military should be questioning activists about how they protest military actions when we're just exercising our first amendment rights."

The military maintains Watada's public comments are at issue, and has charged him with both refusing to deploy and "conduct unbecoming of an officer."

The lieutenant does not dispute any of the statements prosecutors seek to use against him. His attorney says Watada continues to stand by his comments at that June press conference, which his supporters have posted, along with all of his other speeches, on the website thankyoult.org.

"It is my duty as a commissioned officer in the United States army to speak out against grave injustices," Watada said on Jun. 7. "My moral and legal obligation is to the constitution. Not to those who issue unlawful orders. I stand before you today because it is my job to serve and protect American soldiers and innocent Iraqis who have no voice. It is my conclusion that the war in Iraq is not only morally wrong, but also a breach of American law."

At a pre-trial hearing last Thursday, the lead prosecutor, Capt. Daniel Kuecker, said Watada's statements are offensive to the military and must be looked at in the context in which they were made and the effects they could have, as well as the danger they present to the military's mission.

"The dividing line and what makes it more disgraceful is the fact that he made it to more than one person," Kuecker said at the court martial, according to the Army Times.

Military prosecutors also point to comments Watada made at the Veterans for Peace annual convention in Seattle last August.

In a "charge sheet" against the lieutenant, the military quotes Watada's comments at the gathering, calling them "disgraceful."

"Today, I speak with you about a radical idea," Watada told the gathering. "That to stop an illegal and unjust war, soldiers can choose to stop fighting it... If soldiers realized this war is contrary to what the Constitution extols – if they stood up and threw their weapons down – no president could ever initiate a war of choice again. When we say, '...Against all enemies foreign and domestic', what if elected leaders became the enemy? Whose orders do we follow? The answer is the conscience that lies in each soldier, each American, and each human being. Our duty to the constitution is an obligation, not a choice."

The military has also subpoenaed Seattle-area activist and doctor Gerri Haynes, who chaired the Veterans for Peace convention, and a free-lance journalist who interviewed Watada, Sarah Olson. Another journalist, Dahr Jamail, who filmed Watada's speech, has been placed on the prosecution witness list.

In an editorial Monday titled "Military Injustice," the Los Angeles Times strongly criticized the Pentagon's "pestering" of reporters in its prosecution – which the paper argues is justified on the grounds that Watada refused to deploy to Iraq.

"It's egregious enough when U.S. attorneys subpoena journalists, which is happening at an alarmingly increasing rate (illustrating the need for a national shield law). But there is something especially chilling about the U.S. military reaching beyond its traditional authority to compel a non-military U.S. citizen engaged in news-gathering to testify in a military court, simply to bolster a court-martial case. There is no security interest at stake, and no matter of national urgency," the paper said.

Unlike fellow activist Phan Nguyen, Dr. Haynes said she has no problem appearing at the lieutenant's court martial, which is scheduled for Feb. 5.

"I have been very clear about my support for Ehren Watada," she told IPS. "His speech is on tape and all over the internet. I'm not sure that my testimony is of great relevance, but I'll do anything I can to help support Ehren."

Gary Solis, a former military prosecutor who teaches at Georgetown's School of Law, told IPS he's surprised the military has decided to call peace activists to testify against Lt. Watada.

"I really don't know what they may be driving at," he said. "As a prosecutor, I would be very cautious about calling people who I knew would be unfriendly. There's a certain risk that's being run here."

The tactic could blow up in the prosecutors' faces if the activists are able to make an articulate case for Watada and against the war, Solis said, adding the military may find it difficult to compel civilians who resist a subpoena to appear in court.

"The UCMJ (Uniform Code of Military Justice) has no application to civilians so the military has no hammer with the UCMJ alone," he said. "They would have to find a civilian court federal hammer, which would involve getting a second subpoena from a district court."

The precise nature of the charges against Watada remains at issue. At the pre-trial hearing last week, military prosecutors sought to block Watada's attorneys from making a legal case against the Iraq war as part of his defense.

During the hearing, the military judge overseeing the case, Lt. Col. John Head, suggested that such arguments would go to Watada's motive for not deploying and therefore would not be admissible. However, he later said the Army had opened the door by charging the soldier for comments made during the June news conference moderated by Phan Nguyen.

(Inter Press Service)