Mistrial shows difficulty of separating Watada's motive from his actions

THE ISSUE A military judge has declared a mistrial in the court-martial of the Army officer.

CONFUSION about a pre-existing agreement that resulted in a mistrial in the court-martial of 1st Lt. Ehren Watada reflects the difficulty of separating his refusal to deploy to Iraq from the reasons for his refusal.

Where the case, which has drawn nationwide attention and energized anti-war forces, heads next remains unclear as Watada's attorney contends a second trial would constitute double jeopardy.

Though a retrial has been set for next month, legal wrangling likely will delay, if not invalidate, Watada's prosecution.

The mistrial was declared when the judge, Lt. Col. John Head, raised concerns about factual stipulations in an agreement between Watada and the prosecution. In a 12-page stipulation of fact agreed to before trial, the Army dropped two charges of conduct unbecoming an officer in exchange for Watada's acknowledgment that he failed to deploy with his unit last June.

The prosecution considered that as an admission of guilt that he had not carried out his duty, but Watada, under questioning by the judge, said his refusal meant he would not participate in a war he believed was illegal. The issue had been a frustrating point for Watada's lawyer because the judge had ruled the defense could not argue the legality of the war, the very reason Watada says he would not go to Iraq.

The judge, realizing there was confusion, declared the mistrial, saying "the stipulation amounted to a confession" to which Watada "intended to plead not guilty."

Watada's attorney, Eric Seitz, says the Honolulu-born officer's intentions are significant. "There is no way around talking about why he didn't get on that plane," Seitz said.

The mistrial is a setback for the Army in a case that had been expected to end in an easy conviction. Even though faced with the issue of double jeopardy, which prohibits a person from being tried twice for the same crime, the prosecution is free to go forward on the charges it set aside in the now-nullified agreement.

Watada seems to have accepted that he will be punished for his actions, a rightful outcome of civil disobedience. In a new trial, he now might be allowed to explain his motivations to a jury.