Court-Martial of Watada Might Not Come
By Christian Hill

The Olympian Online
9 November 2007

Fort Lewis, Washington - 1st Lt. Ehren Watada, the Fort Lewis officer who refused to deploy to Iraq last year, might never see another courtroom.

U.S. District Judge Benjamin Settle on Thursday imposed a preliminary injunction to temporarily bar the Army from trying Watada a second time while saying the officer likely will prevail on the merits of his pending case.

Since his first court-martial ended in mistrial in February, Watada's lawyers have argued that trying him a second time would violate his Fifth Amendment protection from being tried for the same offense twice. On Oct. 3, as Watada's appeals in the military court system were being exhausted, his attorneys took the rare step of asking a federal civilian court to step in.

Settle granted Watada's request for an emergency stay of the second court-martial, scheduled to begin Oct. 9, to allow him time to review the extensive legal arguments presented lawyers representing Watada and the Army. The injunction would be enforced pending the court's decision on Watada's claim.

Based on his 33-page court ruling, a second court-martial might not proceed.

Settle ruled that the civilian court's review of Watada's double-jeopardy claim is appropriate, rejecting claims by the Army that the court can only step in after the conclusion of the second court-martial and likely appeals within the military court system.

He also found that the granting of a preliminary injunction is necessary in part because Watada will "probably prevail on the merits" of his case, his ruling said.

Settle reached that conclusion largely because of what he said was the abuse of discretion by Lt. Col. John Head, the military judge who presided in Watada's first court-martial, in rejecting a so-called stipulation of fact agreed upon by the government and defense that led to the mistrial, the ruling shows.

Watada, who lives in Olympia, had been charged with missing troop movement and two counts of conduct unbecoming an officer for his statements critical of the Bush administration and its rationale to go to war in Iraq.

At the time, he faced a maximum of four years in prison and dismissal from the military if convicted. Watada has called the Iraq War illegal and said his support of it would make him complicit in war crimes.

The government had dropped two other counts for conduct unbecoming in exchange for Watada signing the stipulation, in which he admitted refusing to board a plane bound for the Middle East on June 22, 2006, and making the critical statements.

Head threw out the stipulation and declared a mistrial in the middle of the court-martial over the objections of Watada and the government because of his concern that the officer didn't fully understand the document he signed. But Settle said it was Head who misunderstood the intent of the document.

Head concluded the stipulation proved Watada's guilt for missing movement despite his not-guilty plea. Citing case law, however, Settle ruled Head's conclusion was premature because Watada hadn't been given the opportunity to present his defense.

"The military judge confused the parties agreement to enter into a stipulation of fact with essentially a stipulation of guilt," Settle wrote.

Head also abused his discretion because he didn't adequately consider possible alternatives besides a mistrial, Settle wrote.

Army lawyers said in a statement they plan to file additional written arguments to prove a second court-martial wouldn't violate Watada's constitutional rights.

"We believe this additional information will be helpful as the judge prepares to issue his final ruling in the case," it said.

The federal judge did not indicate what the next steps would be. Watada's attorneys suggested it's now up to the government to persuade Settle to modify or void the injunction.

"This is an enormous victory, but it is not yet over," Watada attorney Kenneth Kagan said in a statement, according to The Associated Press.