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Noble military officer, Ehren Watada–no double jeapardy

October 23rd, 2008

Military Barred From Retrying Watada on 3 of 5 Court-Martial Charges


by: Hal Bernton, The Seattle Times

First Lieutenant Ehren Watada. (Photo: Jeff Paterson)

A federal judge ruled Tuesday that Lt. Ehren Watada, who refused to deploy to Iraq with his Ft. Lewis combat brigade, couldn’t be retried on several of the charges against him. But the ruling still may allow the military to try him on two court-martial counts.

Citing the constitutional protections against being tried twice for the same crime, a federal judge on Tuesday ruled that 1st Lt. Ehren Watada cannot face a second court martial on three of five counts resulting from his high-profile 2006 refusal to deploy to Iraq with a Fort Lewis brigade.

The ruling by Judge Benjamin Settle, however, leaves open the possibility of a second prosecution on two other counts involving conduct unbecoming an officer.

In the ruling, Settle abstained from ruling on the constitutionality of those charges, and said it was up to a military court to consider “if constitutional defects” would be present in a second court-martial on those counts.”

The ruling keeps Watada, who has been assigned a desk job at Fort Lewis since his refusal to deploy back to Iraq with his combat brigade, in a kind of legal limbo.

Settle barred the military from retrying Watada on charges of missing his redeployment to Iraq, taking part in a news conference and participating in a Veterans for Peace national convention.

But the court did not rule out the possibility that the Army, after considering legal issues, could retry Watada on two counts of conduct unbecoming an officer resulting from his media interviews.

Watada’s first court martial, in February 2007, ended in a mistrial, and was halted over the objections of the defendant.

Watada’s attorneys then claimed that a retrial would amount to “double jeopardy,” the constitutional right to not be tried twice on the same charges. In his Tuesday ruling, Settle said that an Army judge “did not exercise sound discretion” in ruling a mistrial.

As a result, the Army was barred by the constitution from retrying Watada on three of the five counts.

Watada’s attorney, James Lobsenz, said that he was pleased with the federal court’s unusual decision to interfere in the Army court-martial process to protect his client’s constitutional rights.

“It’s very important and not often done,” he said.

Lobsenz said he was hopeful that the Army would dismiss the remaining two charges. If that didn’t happen, Watada could return to federal court once again and try to get the charges blocked.

An Army spokesman said it was still reviewing the court’s decision, and had yet to prepare a comment.

The Army had sought a second court-martial trial on the five counts against Watada, which could have carried a sentence of up to six years in prison.

Poor Ehren has been held for almost two years past his tour of duty.  Let us hope that the military will finally do the right thing now and release him from this virtual prison.

Army can’t retry Watada for refusal to serve in Iraq war

Judge blocks Army from retrying war objector on three main allegations

Advertiser Staff and News Services

SEATTLE — A federal judge ruled late yesterday that the Army cannot retry 1st Lt. Ehren Watada, the Kalani High graduate who was the first commissioned officer to publicly refuse deployment to the war in Iraq, on the main charges against him.

Watada was charged with missing his Fort Lewis, Wash., Stryker brigade’s deployment and with conduct unbecoming an officer after he refused to board a flight to the Middle East in June 2006.

The 30-year-old soldier contended that the war is illegal and that he would be a party to war crimes if he served in Iraq. His first court-martial ended in a mistrial in February 2007.

Watada’s father, Bob, last night said, “It’s obviously good news. It’s very good news.”

Bob Watada added that “we kind of expected this” because U.S. District Judge Benjamin H. Settle of Tacoma ruled in November 2007 that a second trial would violate Ehren’s constitutional rights involving double jeopardy, or being tried twice for the same crime.

Settle at the time put in place a preliminary injunction temporarily halting a new court-martial.

Settle yesterday ruled that the government could not retry Watada on three of the charges because doing so would violate Watada’s double jeopardy rights.

Settle barred the military from retrying Watada on charges of missing his deployment to Iraq, taking part in a news conference and participating in a Veterans for Peace national convention.

But the court did not rule out the possibility that the Army, after considering legal issues, could retry Watada on two counts of conduct unbecoming an officer resulting from his media interviews.

“He dismissed the heart of their case,” Watada lawyer Jim Lobsenz said. “We’re very pleased. It’s taken a long time.”

Honolulu attorney Eric Seitz, who previously represented Watada and was the first to raise the double jeopardy issue, said those two charges were dismissed in the first court-martial and that the Army believes that they “theoretically, hypothetically can be brought back, but I think there’s going to be lots of problems.”

“I don’t think they can bring those back, either,” Seitz said.

In a statement late yesterday, a Fort Lewis spokesman said the base’s commanding general, Lt. Gen. Charles H. Jacoby Jr., had not yet had a chance to review the ruling in depth.

“Once that review is complete, he will be able to make a decision on the way forward with this case,” the spokesman said.

The 1996 Kalani High graduate, stripped of his security clearance, still reports to a meaningless desk job at Fort Lewis, according to family. “He said he’s counting paper clips,” his father, Bob Watada, said in an interview last week.

“We talk every once in awhile. He lets me know that he’s OK,” said the father, who lives in Oregon. Bob Watada said his son’s term of service in the Army ended in December 2006, but that the legal proceedings have prevented his discharge.

Bob Watada, a former Hawai’i Campaign Spending Commission executive director, said that even if the charges are dismissed, he’s worried the Army might appeal the case all the way to the U.S. Supreme Court.

“The Defense Department has a lot of money (to pursue legal action),” Bob Watada said.

Many military members opined that Watada violated his oath as an officer, and that he had no right to decide whether the Iraq War was just or unjust.

The Associated Press, Seattle Times and Advertiser staff writers William Cole and Rick Daysog contributed to this report. Reach Cole at or 525-5459.


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