Watada's Double Jeopardy
by Jeremy Brecher & Brendan Smith
12 October 12, 2007
The double jeopardy clause of the US Constitution ensures that no
American can be tried twice for the same offense. But at a time when our
civil liberties are rapidly eroding, a drama is unfolding in Washington
State over whether that constitutional protection applies to a US
After his February court-martial ended in a mistrial, Lt. Ehren Watada,
the first commissioned officer to refuse to serve in Iraq, seemed
certain to face a second court-martial on October 9 at Fort Lewis, an
Army base near Tacoma. Three military courts had rejected Watada's claim
of double jeopardy, finding no abuse of discretion by the military judge
in declaring a mistrial. But in an unusual civilian intervention in a
military legal process, US District Court Judge Benjamin Settle issued a
last-minute stay October 5 in Tacoma, temporarily blocking the trial.
Settle will hear Watada's double jeopardy claim October 19. Nationwide
Iraq Moratorium protests are scheduled for that day, many of which will
feature Watada's case and his stand against the war.
Watada has consistently maintained that the Iraq War is illegal under
international law and the US Constitution, and that to participate in it
would make him guilty of a war crime. At the video press conference on
June 7, 2006, in which he first announced his refusal to go to Iraq, he
explained, "It is my conclusion as an officer of the armed forces that
the war in Iraq is not only morally wrong but a horrible breach of
Watada was tried in a military court in February for failing to deploy
and conduct unbecoming an officer for his statements opposing the war.
After the prosecution had completed its case, the military judge, Lt.
Col. John Head, intervened, declared a mistrial and ordered Watada to
be retried. [See our report on that trial here.]
The Fifth Amendment to the Constitution states that no person shall be
"subject for the same offence to be twice put in jeopardy of life or
limb." As the Supreme Court explained in a seminal 1978 double jeopardy
case, United States v. Scott, "The underlying idea, one that is deeply
ingrained in at least the Anglo-American system of jurisprudence, is
that the State with all its resources and power should not be allowed to
make repeated attempts to convict an individual for an alleged offence."
Like the erosion of the right to habeas corpus, the denial of the
protection against double jeopardy represents one more Bush-era
encroachment of the all-powerful state on basic human rights and the
rule of law.
While the legal arguments about double jeopardy are quite complicated,
Watada's lawyers are convinced their arguments are strong. They wrote in
their emergency motion, "This is a remarkably clear case of an egregious
violation of the double-jeopardy clause." Judge Settle's opinion
states, "The Court has not been presented any evidence showing that
Petitioner's double jeopardy claim lacks merit. On the contrary, the
record indicates that Petitioner's double jeopardy claim is
Watada's term of military service was scheduled to expire on December
4, 2006. He has not been discharged, however, because of the pending
court-martial charges against him. If convicted, he could face up to six
years in prison.
In an October 4 editorial, the Seattle Post-Intelligencer declared,
"However the defense appeals turn out, we think there is a case for
letting Watada leave the Army without further ado."
There's no evidence yet that the Army is listening. But Judge Settle's
ruling has energized Watada's supporters. They have formed a new
national steering committee with representatives from regions around the
country. Michael Wong, a military resister during the Vietnam era who
took much of the initiative to mobilize the current wave of support,
explained in an interview, "We have three demands. The first is to bar
the Army from trying Ehren Watada again. The second is to drop all
charges against him. The third is to let him leave with an honorable
Wong asks peace groups to incorporate Watada's defense in local and
national demonstrations and encourages individuals to write letters to
the editor and articles to educate the public about the case. "They had
a chance to try him once. They blew it. The prosecution's case was so
weak that declaring a mistrial may have been the only way that Judge
Head could save the Army from humiliation and defeat," he said. "They
should just drop the charges and let him go."
San Francisco organizer and lawyer Bill Simpich has been active in both
the Iraq Moratorium and the Watada defense. He is working to make
Watada's stand against the war a central theme of the monthly Iraq
Moratorium Day October 19. "The Iraq Moratorium and the Watada Support
Campaign are moving tightly with plans to get the word out to stop the
war now so soldiers like Lieutenant Watada aren't forced to choose
between supporting the Constitution and going to prison," he said.
Simpich said the signature event of the Iraq Moratorium Day in the Bay
Area will be a dramatic end-of-workday event outside the downtown office
of Senator Dianne Feinstein, co-sponsored by the Iraq Moratorium and the
Watada Support Committee. Community events and leafleting at
transportation hubs such as BART and CalTrain will also link the
Moratorium and the Watada case.
In Washington, activists plan demonstrations and a counterrecruiting
effort outside a Seattle-area recruitment center.
"The US government and military is waging two illegal wars and is
actively planning for a third," said organizer Gerry Condon, referring
to increasing hostilities between the United States and Iran. "It is
more important than ever that we support GIs who follow their own
consciences and obey international law."
The Watada case is also drawing international attention. Amnesty
International issued a statement October 5 warning that a guilty verdict
would make Watada "a prisoner of conscience who should be immediately
and unconditionally released."
Watada's case is different from typical conscientious objector cases
because the US military recognizes as conscientious objectors only those
who oppose war in any form. Watada did not apply for conscientious
objector status because he said as a soldier he would be willing to
fight in a war--unlike Iraq--that was necessary, legal and just.
Amnesty International argues in its statement that the right to refuse
to perform military service for reasons of conscience, thought or
religion is protected under international human rights standards,
including the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights (ICCPR)--treaties
that have been ratified by the United States.
The Watada case has presented a serious challenge to the military. As
Daniel Ellsberg put it, "Lt. Ehren Watada--who still faces trial for
refusing to obey orders to deploy to Iraq, which he correctly perceives
to be an unconstitutional and aggressive war--is the single officer in
the United States armed services who is taking seriously...his oath."
Despite strong traditions in the military against publicly criticizing
the government, more than twenty retired US generals have criticized the
Commander in Chief about Iraq or spoken out against the war. In 2005,
five retired military panelists discussed the war at Hampden-Sydney
College in Virginia. Retired Brig. Gen. John Johns told the San Diego
Union-Tribune, "Four out of five of us retired military panelists there
said it was a moral duty for us to speak out in a democracy against
policies which you think are unwise." One of the participants, retired
Lt. Gen. Robert Gard, said, "When you feel the country--to its extreme
detriment--is going in the wrong direction, and that your views might
have some impact, you have a duty to speak out."
In a video press conference announcing his refusal to deploy to Iraq,
Watada noted, "Although I have tried to resign out of protest, I am
forced to participate in a war that is manifestly illegal. As the order
to take part in an illegal act is ultimately unlawful as well, I must as
an officer of honor and integrity refuse that order."
While evidence of the war's illegality was barred in Watada's
court-martial, his position is grounded in military law and doctrine. At
a National Press Club luncheon February 17, 2006, just a year before
Watada's court-martial, Gen. Peter Pace, then Chairman of the Joint
Chiefs of Staff, was asked, "Should people in the US military disobey
orders they believe are illegal?"
Pace's response: "It is the absolute responsibility of everybody in
uniform to disobey an order that is either illegal or immoral."
The Army wants to sentence Ehren Watada to six years in the brig for
the crime of trying to fulfill that absolute responsibility.