11-12-07, 10:36 am
Civilian federal Judge Benjamin Settle blocked the Army’s plans for a second court-martial of prominent Iraq War military resister First Lieutenant Ehren Watada. Judge Settle’s preliminary ruling last Thursday found that a retrial would violate Lt. Watada’s Fifth Amendment protections against being tried for the same crime twice—known as double jeopardy. [Ruling by Judge Settle (PDF). November 8, 2007]
Lt. Watada became the first officer to publicly refuse to deploy to Iraq in June 2006. He was charged with “missing troop movement” and “conduct unbecoming an officer and a gentleman,” and faced up to six and a half years in prison. His case has remained undecided since military Judge Lieutenant Colonel John Head declared a mistrial in Lt. Watada’s February 2007 court martial, over the objection of the defense.
No court martial can now take place unless Judge Settle reverses himself, or the military successfully appeals to the Ninth Circuit Court of Appeals in San Francisco, or the U.S. Supreme Court—all of which are unlikely.
In Thursday’s ruling, Judge Settle detailed numerous problems with the military’s handling of the first court martial. Lt. Watada’s Seattle-based civilian attorney Ken Kagan outlined the following points contained in the 33-page ruling:
1. The remedy sought by Lt Watada—a writ of habeas corpus in a pretrial setting–is rare but appropriate; 2. Lt. Watada will suffer irreparable injury if relief is denied; 3. Lt. Watada is likely to succeed on the merits; 4. Military Judge Head abused his discretion in rejecting the Stipulation of Fact; 5. Even if Judge Head did not abuse his discretion in rejecting the Stipulation of Fact, there was still a lack of 'manifest necessity' for declaring the mistrial; 6. Judge Head failed to adequately consider possible alternatives; 7. The balance of potential harms weighs in Lt Watada's favor; and; 8. The public interest favors granting relief.
'This is an enormous victory, but it is not yet over,' noted Kagen.
Underscoring this statement, the Army Office of the Staff Judge Advocate has since announced they plan to file additional briefs before Judge Settle issues a final ruling. 'We look forward to the opportunity to further explain to the District Court judge the full extent of the protections and safeguards that are afforded to a military accused.”
Never the less, this week’s ruling is a major victory for Lt. Watada and all war resisters. In San Francisco’s Chinatown, Asian-Pacific Islanders Resist and the Watada Support Committee called for Lt. Watada’s immediate release. Courage to Resist (photo right) joined San Francisco Poet Laureates Jack Hirschman and Janice Mirikitani, former S.F. criminal prosecutor David Chiu, and Reverend Norman Fong at a press conference turned celebration.
From Courage to Resist
