Watada could still face prosecution


POSTED: Thursday, May 07, 2009

The Justice Department has decided to drop its appeal of a federal judge's decision blocking a second court-martial of 1st Lt. Ehren Watada.


However, the Army says that Watada, a 1996 Kalani High School graduate, still could be prosecuted for his anti-war sentiments.

Watada was initially court-martialed in 2007 for denouncing President George W. Bush and the Iraq war and refusing to join his Stryker brigade unit when it deployed. That court-martial ended in a mistrial.

Yesterday, the 9th Circuit Court of Appeals allowed the Army to drop its appeal of U.S. District Judge Benjamin Settle's decision in October that any retrial would violate Watada's constitutional protection against double jeopardy.

Watada's Seattle attorneys—James Lobsenz and Kenneth Kagan—said in a written statement: “;Since the government has dropped its appeal of that decision, that ruling can no longer be challenged.”;

However, Joe Piek, a spokesman at Fort Lewis, Wash., where the 30-year-old soldier has been stationed since 2006, told the Star-Bulletin there are two other instances when Watada made statements against the war and Bush that were not part of the original court-martial.

He said Watada still could be court-martialed for conduct unbecoming an officer for making those statements.

Kagan said he was ready to argue for dismissal of those charges, but they were withdrawn by the Army in February.

“;I think we have the legal grounds to dismiss,”; he said.

Initially, Watada was charged with missing the 2nd Infantry Division's 3rd Stryker Brigade Combat Team's deployment on June 22, 2006, considered by the Army as the most serious charge, and conduct unbecoming an officer.

Watada participated in anti-war rallies here and on the mainland and held numerous interviews denouncing Bush. Two of those activities were the basis of the charges of conduct unbecoming an officer.

Conviction on all counts would have meant six years in prison and a dishonorable discharge.

Before the start of the court-martial, Watada entered into an agreement under which the Army agreed to drop two of the “;conduct unbecoming”; charges. But the presiding judge was bothered by the 12-page agreement, which would have cut two years off Watada's sentence.

The judge declared a mistrial and Eric Seitz, the Honolulu attorney who was then representing Watada, raised the double jeopardy issue.

After the mistrial on Feb. 6, 2007, the Army re-filed all of the original charges against Watada and added two new instances where Watada spoke out against the war.

Besides a court-martial on the new charges, Watada could receive nonjudicial punishment, such as forfeiture of pay or extra duty, or an honorable or dishonorable discharge.

“;The one element that concerns us the most is that this case has always been and will forever be about a soldier—in this case, a lieutenant, a commissioned officer—who refused orders to deploy,”; Piek said. “;Because of a legal technicality, that charge is never going to see its day in court. For the hundreds of thousands of soldiers Army-wide, and for the many thousands of soldiers at Fort Lewis, that is very disturbing.”;

Watada, who has been working a desk job since the mistrial, declined to make a statement.

Watada was supposed to have been discharged on December 2006, but his legal proceedings have kept him at Fort Lewis' I Corps.