A victory for Watada:Judge Settle’s preliminary ruling last Thursday (Nov 8) found that a retrial would violate Lt. Watada’s Fifth Amendment protections against being tried for the same crime twice—known as double jeopardy.
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No court martial can now take place unless Judge Settle reverses himself, or the military successfully appeals to the Ninth Circuit Court of Appeals in San Francisco, or the U.S. Supreme Court — all of which are unlikely.
In Thursday’s ruling, Judge Settle detailed numerous problems with the military’s handling of the first court martial. Lt. Watada’s Seattle-based civilian attorney Ken Kagan outlined the following points contained in the 33-page ruling:
- The remedy sought by Lt Watada — a writ of habeas corpus in a pretrial setting – is rare but appropriate
- Lt. Watada will suffer irreparable injury if relief is denied
- Lt. Watada is likely to succeed on the merits of his argument
- Military Judge Head abused his discretion in rejecting the Stipulation of Fact
- . . . [T]here was . . . a lack of "manifest necessity" for declaring the mistrial
- Judge Head failed to adequately consider possible alternatives
- The balance of potential harms weighs in Lt Watada's favor
- The public interest favors granting relief
A little review now.
Going back to Feb of 2007, when Lt. Watada appeared before Judge Head, he was prepared to stipulate to the facts of the case, while arguing that his actions were necessary in order to fulfill his oath to protect the Constitution. The Judge made every effort to prevent Lt. Watada from introducing any evidence in his defense, so that the stipulation could be construed as an admission of guilt, fulfilling the prosecution's intentions in offering a plea bargain.
Watada's refusal to admit to "guilt" meant that eventually he would have to be allowed to present a defense,
despite the prosecution's (and judge's) best efforts to keep the question of the war's legality out of the courtroom. Therefore, the prosecution requested, and the judge granted, a mistrial.
Normally, that would be the end of the trial, essentially finding the accused "not guilty" by reason of the prosecution's failure to present its case. But as NW Ponderer has previously pointed out, the military has different standards of "double jeaopardy" than do civilian courts. In the end however, in order to hear Watada's case, the government must eventually allow a hearing of the war's legality. That is why, IMHO, they are caught in an epic conundrum. They want so badly to punish Watada for establishing a moral high ground in his actions versus the war, but in order to do so, they must give his moral arguments a hearing.
As it stands now, it is the government, not Watada (as Ponderer had incorrectly predicted) who must appeal to a higher court in order to pursue a second trial on shaky Constitutional grounds. It is the government, not Watada, who is suffering humiliation, and far from playing the role of "noble martyr", Watada and his very competent attorney continue to wag the military dog for all it is worth.
Lt. Watada speaks for thousands of loyal Americans who, subsequent to their enlistment, have wrestled with their consciences over deployment to Iraq, and whose consciences have won. Thank you, Lt. Watada!
