2nd trial illegal, Watada argues

Lawyers turn to federal judges in Seattle to stop new court-martial
By MIKE BARBERP-I REPORTER
Lawyers for Fort Lewis 1st Lt. Ehren Watada, who in June 2006 went public with his refusal to serve in Iraq and said the war is illegal, asked the U.S. District Court in Seattle on Wednesday to halt his court-martial, which is only days away.
Watada's second court-martial is slated to begin Tuesday. His first court-martial earlier this year ended in a mistrial before a jury could deliberate.
Watada's lawyers said they hope for a decision Friday. Monday is a federal holiday, Columbus Day.
Before Watada's lawyers announced their move, Fort Lewis officials issued a news release saying the court-martial was slated for 9 a.m. Tuesday.
Watada is charged with missing movement with his unit to Iraq and of conduct unbecoming an officer for anti-war statements he made in the media and as a speaker at the national convention of Veterans for Peace in Seattle in the summer of 2006. If convicted, he could face up to six years in prison.
Watada's case is being appealed on grounds that a second court-martial violates his constitutional protections against double jeopardy -- being tried twice on the same charge -- because he was court-martialed earlier this year on those charges. But, over his objection, a mistrial was declared "without there being the requisite manifest necessity for such declaration," said court papers filed Wednesday. The military judge, Lt. Col. John Head, ordered a second trial.
The U.S. Army Court of Criminal Appeals and Head have ruled otherwise, dismissing the double-jeopardy claims. The issue last month was presented to the U.S. Court of Appeals for the Armed Forces, the military's highest court and made up of civilian judges who hear military issues.
"We believe we have a strong case and are looking forward to litigating the double-jeopardy issue in federal court," one of Watada's lawyers, Ken Kagan, said.
Kagan and Jim Lobsenz, both of the Seattle law firm Carney Badley Spellman, Wednesday filed a writ of habeas corpus and a request for an emergency stay in Seattle federal court because the Appeals Court for the Armed Forces has not ruled and the trial date is quickly approaching.
Among other remedies, Watada's lawyers have asked the federal court in Seattle "to issue a writ of habeas corpus releasing (Watada) from all restraint imposed by the pending court-martial charges, and declaring any trial on such charges to be barred and prohibited by the double-jeopardy clause of the Fifth Amendment."
After learning of the new court challenge, Fort Lewis officials said in a statement that they had followed the law in scheduling a second court-martial.
"We've not seen the filing or heard a ruling on it from the court, so we will not speculate on what effect it may have on next week's scheduled trial. However, the government has followed the law and rules throughout the process of bringing this case to trial. The U.S. Army Court of Criminal Appeals in Balston, Va., determined that this case was not prohibited by double jeopardy and may properly proceed to trial. The court issued its ruling after considering comprehensive briefs and arguments from the parties."

Kagan said he thinks that there's a likelihood a federal judge will accept the case because military officers are federal officers who fall under the Seattle federal court's jurisdiction.
Kagan said he believes there is "a good chance" the court-martial will be delayed because local federal judges feel bound by precedents of the 9th U.S. Circuit Court of Appeals and other higher civilian courts. "Those circuits have looked at this issue and concluded when there is a decent double-jeopardy claim, you have to stop the trial, and you've got to review it," Kagan said.
Court documents show that Watada's term of service as an active-duty military officer ended in December, but he has been held over because of the legal proceedings. He refused to go to Iraq in June 2006 with the 3rd Stryker Brigade.

Snip

It is often said the Military Justice is to law what Military Music is to Music. At first flush, this looks like a violation of the 5th amendment. It is hard to say what happened in the first trial, was it a dismissal or a mistrial? Wiser heads will have to hash this out. Fortunately this case is being heard in the liberal 9th circuit. There is a good chance that the judge will find for Watada. If the government was really smart, they would just release Watada from service. By re-trying Watada they are just making it worse for their public perception. The first bite of this particularly poisonous apple, the first trial, had all the hallmarks of a Kangaroo Court. The Judge knowing he did not have a prayer if his decision was reviewed pulled the plug on the proceedings. Not satisfied to let sleeping dogs lie, the Government has tried again.

It is not terribly surprising that the U.S. Army Court of Criminal Appeals let the second trial go forward. Again Military Justice is often an oxymoron. They are just good little Germans following orders. The Bushite regime has wanted to nail Watada from the start. This prosecution has Bush's fingerprints all over it. You can almost hear him profane and petulant ordering his sycophantic generals to "get this guy." Congress hasn't even been a speed bump to Bush's regal pretensions, let see if the courts have any spine.