Watada court-martial stopped
A federal judge in Tacoma has delayed the court-martial of 1st Lt. Ehren Watada, a Fort Lewis Army officer who refused to deploy to Iraq.
In a rare intervention of a civilian court in the military justice system, U.S. District Court Judge Benjamin H. Settle granted the emergency stay to stop the court-martial.
Watada's trial, slated to begin at 9 a.m. Tuesday, is now postponed until at least Oct. 26, the judge ruled.
In granting the stay at 4:48 p.m. Friday, Settle wrote, "The court concludes as a preliminary matter, that it has jurisdiction over the petition and the petitioner's double jeopardy claim is not frivolous."
Watada's first court-martial earlier this year ended in a mistrial, and his lawyers argue that a second court-martial would amount to trying him twice for the same charges.
Settle, was careful to point out that "the issues raised by the petition for habeas corpus bear no relation to the charges or defenses in the petitioner's (Watada's) court-martial proceedings." Settle was a military lawyer in the Army in the 1970s and was recently appointed to the federal bench by President Bush
Quoting case law, Settle wrote, "The irreparable harm suffered by being put to a trial a second time in violation of the double jeopardy clause of the Fifth Amendment stems not just from being subjected to double punishment but also from undergoing a second trial proceeding."
Because the case being heard in federal court, the U.S. Attorney's Office now is arguing the government position with a military lawyer's help.
"Judge Settle has now preserved the status quo, giving us an opportunity to more fully brief him on the issues. We look forward to doing that," said Brian Kipnis, chief of the civil division for the U.S. Attorney's Office in Seattle.
Watada's lawyers, Jim Lobsenz and Ken Kagan of the Seattle firm Carney Badley Spellman, have argued that the circumstances of a mistrial declared in Watada's court-martial in February result in double jeopardy.
The mistrial was declared over Watada's objections and after a panel of military officers acting as a jury had heard evidence but not begun deliberations.
Watada's appeals have been dismissed by the military trial judge and the U.S. Army Court of Appeals. An appeal was made Sept. 18 to the Court of Appeals for the Armed Forces, the highest court in the military justice system.
Lobsenz and Kagan said they were compelled to ask the federal court on Wednesday to stop the court-martial. Watada's trial approached, and nothing had been heard from the armed forces appeals court. With Monday a federal holiday to observe Columbus Day, time was even shorter, they said.
Settle indicated at a hearing on Thursday that he might defer to the military appeals court if it made a decision by Friday, but at close of business Friday, it hadn't ruled.
Watada publicly refused to go to Iraq with the 3rd Stryker Brigade in June 2006, contending that the war there is illegal and has exposed members of the military to war crimes. He has been charged with missing movement and conduct unbecoming an officer. He could be sentenced to up to six years in prison if convicted.
Settle has set up a briefing schedule to examine the merits of the double jeopardy argument and how long he will continue the stay. The government has until Oct. 12 to file its arguments, and Watada's lawyers must reply by Oct. 17. Another hearing is planned for Oct. 19.