FORT LEWIS - Army prosecutors might have unwittingly aided the defense of the Fort Lewis officer they're trying for his refusal to deploy to Iraq.
Attorneys for 1st Lt. Ehren Watada want his jury to hear next month from experts that the war violated U.S. and international law in their effort to win his acquittal.
During a four-hour pretrial hearing Thursday, one of Watada's attorneys, Eric Seitz, requested that the judge hold an evidentiary hearing about allowing that defense.
The lead prosecutor, Capt. Daniel Kuecker, argued that under the "political question" doctrine, only the executive or legislative branch can decide the war's legality. Under that doctrine, the courts defer to those branches' jurisdiction. Kuecker told the judge that Watada's motive is irrelevant to the case.
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Watada, 28, is charged with missing movement and four specifications, or counts, of conduct unbecoming an officer based on statements he made against the war.
The specifications are based on Watada's statements during speeches or interviews.
"The wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it's a contradiction to the Army's own law of land warfare," he said during one interview cited by prosecutors as evidence. "My participation would make me party to war crimes."
The judge, Lt. Col. John Head, told prosecutors that he was not inclined to grant the evidentiary hearing, but that they opened the door for him allowing it by prosecuting his statements.
"It would not be relevant," he said. "Some of those statements have become relevant by the sheer nature of how the government has charged this case."
Head said he would issue a written ruling on the request later.
Kuecker said he disagrees with the defense counsel's contention that the war is illegal.
"We don't believe every legal scholar would come down on that side," he said.
Seitz also asked the judge to dismiss the conduct charges because Watada's statements are not conduct that can be prosecuted under that section of military law.
"He should not face another four years of penalties because he chose to explain his reasons for opposing the war," he told the judge.
Kuecker argued that Watada's statements were offensive of the military and prejudicial to good order and discipline within the ranks.
If convicted on all counts, Watada faces up to six years in prison and dismissal from the military.
Watada's court-martial is scheduled to begin Feb. 5. The case will be heard by a panel of at least five officers.
He had offered to deploy to Afghanistan or serve in some other military capacity when he learned he was headed to Iraq in late 2005.
He offered to resign his commission, but the Army refused to accept it, Seitz said.
Watada, a native of Hawaii, was a fire-support officer for 5th Battalion, 20th Infantry Regiment, but since has been transferred to a desk job with another unit.
The Associated Press contributed to this report.