This is a partial transcript of "The Big Story With John Gibson," February 5, 2007, that has been edited for clarity.
JOHN GIBSON, HOST: The "Big Issue": When you sign up to be a member of our armed forces, you must follow orders. So what happens when you don't?
A U.S. Army officer has refused to follow orders to go to Iraq, and now he could be shipping out to jail instead and could spend years behind bars. A military trial for Lt. Ehren Watada began today in Washington state. Watada refused to deploy to Iraq because he said the war is illegal.
With me now live on the phone is Lt. Watada's father, Bob Watada.
Bob, thanks for joining us. Is it your son's position that he could choose which war to go to?
BOB WATADA, FATHER OF ACCUSED SOLDIER: Let me say this, John, that every soldier has to search their conscience. And if they're asked to go to fight in the battle in which they're going to kill innocent men, women and children, then they have to make that choice as to whether they want to stay there and kill innocent men, women and children or say, "No, I'm not going to do that."
And our son has been taught that it's very wrong — it's a matter of conscience for him that it's very wrong to be killing innocent men, women and children...
GIBSON: What did he think, Bob — did he consider these questions before he enlisted, Bob?
WATADA: I'm sorry, what was that?
GIBSON: Did he consider these questions before he enlisted?
WATADA: He enlisted into the Army because the president said that there were terrorists, especially in Iraq and other places. And he wanted to do something for his country to fight against terrorism in Iraq and other places. And he was shocked when he found out that the president deceived the American people into believing there were terrorists in Iraq when, in fact, there were none, absolutely none. And, you know, this kind of deception by a president, this kind of outright lying from the president...
GIBSON: Bob, where did your son get the idea he can substitute his judgment for the president's?
WATADA: When did he do that? Because he has a conscience and the president doesn't. The president doesn't care that hundreds and thousands of Iraqi people are being killed, that American soldiers are being killed simply for the oil resources of Iraq.
GIBSON: OK. Bob Watada, your personal views are being represented in your son in a military trial today. Bob, thanks very much.
WATADA: No, it's not so much...
GIBSON: The big question here: He says, "No, I'm not going to fight in Iraq." Can a soldier legally disobey a military order like this? Let me bring in FOX News senior judicial analyst Judge Andrew Napolitano.
I think we just heard. There are a lot of political views that underlie Lt. Watada's refusal. Is there a legal basis?
Well, I'll put it up on the screen. The soldier says, "No." Is this disobedience legal?
JUDGE ANDREW NAPOLITANO: The disobedience is not legal. And under the law his view that the war is unlawful is not a valid defense, so the court will not even allow him to argue to this jury, this court martial that the law was illegal.
Look, it's a volunteer Army. He was not drafted, obviously. He joined on his own. He joined after 9/11. He is presumed to know what he is getting involved in. The flip side of this is the government could never have a military if individual members of the military were able to opt out of specific missions because they disagreed with them.
He has three charges pending against him. The most serious is refusal to move with his unit. That is, the refusal actually to get on the plane and go to Iraq. The other two counts are conduct unbecoming of an officer. Those are statements he made out of uniform and off the military premises but, nevertheless, using such language that it could be construed by other members of the military that he was encouraging them to drop their arms and not to fight.
GIBSON: Like what language?
NAPOLITANO: Like, "The soldiers can choose." I'm quoting him now: "The soldiers can choose to stop fighting it, like if they stood up and threw their weapons down no president would ever again initiate a war of choice."
A jury will have to decide if those statements — and I have removed them from context, I've isolated them from other things he's said — a jury will have to decide, John, if those statements taken in context were so contemptuous of the president or so destructive of military order that they encouraged soldiers beneath him in the chain of command to do that which is illegal.
GIBSON: There are a lot of anti-war people that are supporting Lt. Watada. Sean Penn showed up today at a demonstration up there at Ft. Lewis, Washington. Lt. Watada sounds as though he comes from a family of conscientious objectors or close.
NAPOLITANO: Yes, he does. Bob...
GIBSON: Is there any hint that he joined the Army in order to make this case?
NAPOLITANO: I know of no reason why he joined the Army other than the statements made by his father. I also know that his father was excluded from the draft at his own request during the Vietnam years, the gentleman you just had on, and was permitted to serve honorably in the Peace Corps and went on to be a public official in the state of Hawaii.
But Lt. Watada's problem is that his words are equivocal. They could be interpreted as against the good of the order. But refusing an order to get on the plane is not equivocal and there's no defense to it.
GIBSON: Judge Andrew Napolitano, as always, thank you very much.
Content and Programming Copyright 2007 FOX News Network, LLC. ALL RIGHTS RESERVED. Transcription Copyright 2007 Voxant, Inc. (www.voxant.com), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, LLC'S and Voxant, Inc.'s copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.