STAR-BULLETIN / DECEMBER 2006 Army 1st Lt. Ehren Watada enters the auditorium at Church of the Crossroads as his father, Bob Watada, makes way for him. The Army officer gave a speech there in December.

Watada ‘happy’ with ruling

A U.S. judge puts the Army officer's second court-martial on hold and seeks information

The court-martial of Army 1st Lt. Ehren Watada is on hold after a federal judge in Washington state agreed yesterday to hear the Iraq war objector's arguments that another Army trial would violate his constitutional rights.

Watada, who was born and raised in Hawaii, had been scheduled Tuesday for his second court-martial for refusing to deploy to Iraq. The first Army court-martial of Watada ended in a mistrial in February.

Watada, who is based at Fort Lewis in Washington, had petitioned the U.S. Circuit Court for the Armed Forces to throw out the case on the basis that a second court-martial would violate his constitutional right not to be tried twice for the same crime, commonly called "double jeopardy."

Since that court has not ruled, Watada's attorneys turned to the federal court in Tacoma. Yesterday, U.S. District Judge Benjamin Settle concluded that his court had jurisdiction on the request for an emergency stay because Watada "has exhausted his available military court remedies with respect to his double-jeopardy claim."

The officer's father, former Hawaii Campaign Spending Commission Executive Director Bob Watada, said, "I am glad that the federal court judge is fair. We haven't had too much fairness out of the military judges thus far."

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TACOMA, Wash. » A federal court judge temporarily blocked yesterday a court-martial scheduled for Army 1st Lt. Ehren Watada, an Iraq war objector based at Fort Lewis.

The court-martial of Watada had been scheduled to start Tuesday. Watada's lawyers argue the Army is violating his constitutional rights by trying him twice for the same crime.

Watada, who is from Hawaii, is charged with missing his unit's deployment to Iraq in June 2006 and with conduct unbecoming an officer for denouncing President Bush and the war.

In his ruling, U.S. District Judge Benjamin Settle concluded that his court had jurisdiction on the request for an emergency stay because Watada "has exhausted his available military court remedies with respect to his double jeopardy claim."

Settle also decided that claim was "not frivolous."

Watada's father, Bob, said, "I am glad that the federal court judge is fair. We haven't had too much fairness out of the military judges thus far. We're very happy, at least at this point, that the judge is issuing a temporary stay of the court-martial."

He said he spoke to his son last night and said, "He's doing fine. ... He's very happy."

The judge has asked for a response from the Army by Friday and additional briefs from Watada's lawyers by Oct. 17. The earliest the judge might rule, based on those arguments, is Oct. 19. His stay will remain in effect until Oct. 26 or until further action by the court.

Jim Lobsenz, one of Watada's lawyers, noted that in Thursday's arguments the judge primarily wanted to know if he had jurisdiction, "so we talked about that." The newly requested briefs will deal in more detail with the double jeopardy issue.

Lobsenz said Watada had been informed of the stay, and "he's very happy -- and I'm very happy, too."

"Every soldier is entitled to due process in answering charges made against him, and this case is no different. First Lt. Watada has always been, and will continue to be, treated fairly and according to law and military justice procedures," the Army said last night in a statement issued by Fort Lewis.

Settle noted that "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 meritorious."

The judge added that the harm of being tried twice in violation of the double jeopardy clause of the Fifth Amendment includes the harm of undergoing a second trial proceeding. "Having preliminarily decided that Petitioner's double jeopardy claim is not frivolous, a stay of the military court-martial proceeding is justified," he wrote.

Bob Watada, in a telephone interview from his home in Oregon, said: "This is a very clear case of double jeopardy, and the constitution clearly prohibits a person being tried two times for the same crime.

"At this point we're just very hopeful that people will do the right thing, and if people do the right thing, then yes, he will prevail," said Watada, former executive director of the Hawaii Campaign Spending Commission.

Ehren Watada contends the war is illegal and that he would be party to war crimes if he served in Iraq. The Army, which refused his request to be posted in Afghanistan or elsewhere, declared his first court-martial a mistrial in February, over the lieutenant's objections.

If convicted, Watada could be sentenced to six years in prison and be dishonorably discharged.

The Army Court of Criminal Appeals has ruled that Watada can be court-martialed again, but Watada appealed that decision to the U.S. Circuit Court for the Armed Forces, which has not ruled, his attorneys wrote in their emergency motion for a stay.

Watada's attorneys are also asking that he be allowed to leave the Army. Watada's term of service ended in December, but the pending legal proceedings have prevented his discharge. He lives in Olympia and continues to perform administrative duties at Fort Lewis, south of Seattle.