Army Drops Reporter Subpoena, then Invasion Objector Wins Mistrial (UPDATE 1)
(APN) ATLANTA — The US military has dropped the controversial subpoenas of two journalists, independent journalist Sarah Olson, who interviewed Lt. Ehren Watada for Truthout.org, and Gregg Kakesako of the Honolulu Star-Bulletin, after Watada signed a stipulation agreement with the military.
Olson still won’t say for sure whether she was going to refuse to testify, but it appears she would have refused to testify. “Why would I go around discussing the ethical horror if I wasn’t prepared to act on it?” she told Atlanta Progressive News.
Ironically, the stipulation agreement–which became the foundation of the prosecution’s evidence against Watada–turned out to be the source of dispute and confusion in court with the Judge, leading to a legal impasse and a mistrial declared for Watada.
Watada’s attorney now believes he cannot be tried again because that would amount to double jeopardy, although the Judge said he was prepared to set a court date for a new hearing in March 2007. Watada’s attorneys will appeal to higher courts on grounds of double jeopardy if they have to.
Watada had faced a military tribunal for refusing to deploy in the US Invasion of Iraq, the first officer to do so. He also faced four counts of alleged conduct unbecoming of an officer, for speaking out against the Invasion, including in the interviews with Olson and Kakesako and two public speeches.
APN raised the possibility of a stipulation agreement in an interview with Olson several weeks ago. It seemed like a reasonable way to avoid the Army “needing” to authenticate the content of Olson’s reporting.
At the time, Watada’s defense attorney was concerned about having the ability to cross examine Olson as a witness if she did indeed testify, Olson said.
Of the contextual issues which would have been brought up in cross examination–whether he was wearing a uniform or presenting himself as an officer at the time, “that was never resolved.”
As part of the stipulation, Watada did admit the content of Olson and Kakesako’s respective stories were correct, and in return, the journalist subpoenas were dropped and so were those two, out of four, charges of conduct unbecoming of an officer, against Watada.
This suggests the military either had some interest in avoiding a freedom of the press showdown with Olson, or possibly that Olson and Kakesako’s subpoenas were intended in the first place to be bargaining tools for talks with Mr. Watada and his defense attorney, Mr. Eric Seitz.
“I’m not inside the mind of the prosecution, but I can’t help it, whatever their intent was, to silence other journalists, to make Watada feel guilty and try to help Sarah,” Olson said.
Olson says she believes the dropping of the journalist subpoenas was the result of many factors, though.
“That would have been nice if the Army said, we just can’t take Sarah Olson anymore. She’s too formidable,” Olson tells Atlanta Progressive News.
“What did happen is, they did drop the charges. Do I think I was the sole reason for that? No. Do I think the thousands of emails they were getting and the significant professional media outcry… contributed to the decision to drop the subpoenas? Yes, I think it did,” Olson said.
Atlanta Progressive News joined several progressive media outlets and writers, in addition to the National Press Club and the Newspaper Guild, in forming a Defend the Press Coalition in support of Olson. The list of Olson supporters is http://www.prwatch.org/defendthepress/coalition.html
STIPULATION LEADS TO ALLEVIATION FOR OLSON
“Ehren said yes I really said those things. They [the Army] said, ok, we’re going to drop the charges that resulted from you speaking to journalists,” Olson said of the stipulation agreement.
“I was not part of the crew that was calling on him to stipulate,” Olson said, adding, “There were journalists who were like if I were you I’d be so frigging pissed.”
Olson had refused to criticize Watada for not stipulating, saying she and he had a conflict of interest at the time, that it would be nice if he did stipulate, and that it was a possibility.
“The guy was facing 8 1/2 years in prison. That said, I’m sure I’m happy that I’m not going to jail,” Olson said.
It should be noted Watada did not just gain letting Olson off the hook [Kakesako was prepared to cooperate with the tribunal]; the Army also dropped those two charges against Watada.
“It was the deal,” Olson said, as to the reason for the stipulation. “He wasn’t just gonna stipulate, he was expecting something in return.”
STIPULATION LEADS TO FRUSTRATION FOR JUDGE
“Basically the Judge said well you’re admitting guilt, and he said no, I’m admitting I said these things,” Olson said.
“The Judge was like, well I don’t understand because I’ve already said you can’t defend yourself with the defenses you’re presenting,” Olson said.
“Essentially, what you’re doing is admitting guilt and innocence simultaneously and I can’t allow that in my courtroom,” the Judge said, according to Olson.
“The Judge was saying, you’re just not clear on what you’re saying. Ehren was very clear I believe about what he was saying,” Olson said.
“Both the prosecution and the defense were saying, no, no, he’s not admitting guilt. He’s instead just saying, instead of admitting guilt, he’s saying he did these things but he does have a right to do those things,” Olson said.
Olson said the military code states that an officer has a right, an indeed, an obligation to oppose an illegal order.
The law is less clear, Olson said, about “when is the venue that you bring that up?”
The Judge in Watada’s case stated he was unwilling, or did not have the authority, to entertain arguments about the illegality of the war in court.
“What I do know, the stipulation was written by the Army, it was reviewed and edited by both the prosecution and the defendants, it was submitted to the Judge, he edited and made changes, which were incorporated, and the prosecution and defense signed it,” Olson said.
“He [the Judge] knew nothing new had happened between last Monday and when he declared the mistrial,” Olson observed.
“He said Ehren didn’t know what was going on, because he’s trying to make this defense which we said he coudn’t make, so he’s leaving himself without a defense,” Olson said.
“Ehren in his or his lawyer’s opening statements, said I didn’t go to Iraq because it was illegal,” Olson said. “So there isn’t really a way to properly argue the Judge is somehow taken by surprise, that doesn’t stand with the facts.”
“Another thing people are arguing is Seitz, Watada’s attorney, basically the Judge panicked when he realized [Seitz] was going to introduce the illegality of the war anyway,” Olson said.
“Seitz submitted a suggested jury instruction document to the Judge. This is asking me to instruct the jury basically not to out and out consider the Iraq war, but whether Watada had a reasonable belief the war was illegal,” Olson said.
“It was kind of manipulative, but it was a crappy situation; he was stripped of all the defenses he wanted to make,” Olson said.
“What happened was he submitted the suggested jury instruction thing, some people say the Judge just panicked, and they realized this panel of high ranking military officers was going to hear all these arguments about the reality of the war,” Olson said.
“But the reality is, the Judge did not have to accept those suggested jury instructions, so I think there’s obviously something political going on and I don’t really know what it is,” Olson said.
“I talked to people who said the conspiracy theories have been flying around,” Olson said.
“The most probable thing is what [writer] Marjorie Cohn said… the Judge made a decision that forced the prosecution into asking for a mistrial when the Judge threw out the stipulation,” Olson said.
“They didn’t even have the most basic piece of evidence, they had nothing,” Olson said. “That’s why they had to ask for a mistrial, then the Judge granted it. That’s probably the most likely scenario, the Judge wasn’t thinking this might be a double jeopardy.”
“That’s what the defense is saying right now, it’s not clear that it’s true, but it’s also not clear that it’s not true. There is a very good likelihood he won’t face another trial,” Olson said.
TRIBULATION LEADS TO REALIZATION FOR OLSON
“Yes, I’m still writing and I’m looking forward to getting back to it. I’m actually working on a couple Iraq war resister type stories,” Olson said.
“I started this whole thing, this whole commitment to journalism because I think there are stories that aren’t being told enough. Nowhere is that more true than with conscientious objectors and war resisters,” Olson said.
“Moreover, I’m really, really glad we weren’t forced, I’m glad they dropped the charges that resulted from Watada speaking to journalists, that those charges are gone,” Olson said.
“I think it’s a horror to set a precedent to prosecute people for speaking with individual journalists, so I’m really glad we didn’t introduce that into what can happen in the military. On a personal level, I’m glad Watada isn’t going to jail for speaking to me,” Olson said.
“On some small degree, we have been able to preserve the right of journalists to gather and disseminate news without fear of government intervention… and in some small way, preserve the right of individuals speak to journalists about their personal political beliefs without fear of retribution or censure,” Olson said.
Olson says she tried “within the scope of what was presented to me… to call up the journalistic issues and agitate the military to at the very least leave me alone,” Olson said.
“One of the things I learned going through this process, probably as an independent journalist I had significantly more of an opportunity to speak on my own defense and rabble rouse for my own defense,” Olson said. “Journalists who work for corporations are bound by their company’s policy and fortunately for me I was not bound by any company policy. I had to think about… what my principles were and my integrity.”
“I know they were wrangling pretty significantly through Summer, Fall, and Winter, to come up with an amicable deal. They had a really hard time, I wasn’t willing to give very much,” Olson said.
Olson says she was amazed with the level of support she got, particularly from the independent and corporate media. “I walk away from it with a more solid belief in the power of the press,” she says.
About the author:
Matthew Cardinale is the News Editor for Atlanta Progressive News and may be reached at firstname.lastname@example.org.
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