I have not changed my mind a bit. Judge Settle's opinion is wrong on very many levels, which I still find surprising because he was once a Judge Advocate. His opinion demonstrates a fundamental misappreciation for both military and criminal law, probably because he has not practiced either for such a long time. I do not know whether the government intends to appeal, but I suspect they will. (They ought to.) I have read the opinion, and if anyone with a legal background (other than myself) would do so, I would really like their views of his use of precedents. Sometimes judges are just plain wrong. This is one of those instances. If the government appeals it will be on the very narrow issue of whether the judge abused his discretion, and on that count they have a very, very strong case.
I think, Steve, that you have a misperception of my attitude toward 1LT Watada. I do not find him noble or courageous, it is true, but I have no malice toward him. I disagree with him strongly, even though I fundamentally agree with his position on the war, but I find his justifications shallow and his posturing grating. There are principles more important to me than his case involved here. I am a great believer in justice and the law as an instrument of it. In this instance justice is not being served. If 1LT Watada wants to go down the path he has taken, that is fine, and I support his ability to do so. It is, after all, a matter of conscience. But he should accept the consequences of his actions, which means jail time and dismissal as an officer. That is the price he should pay. That would be justice.
On the merits, Judge Head has not been wrong in his application of the law, or in any way abused his position to be unjust. It is you, I believe, who are blinded by your viewpoint. I understand and appreciate your personal stake in the outcome. I am trying to look at it dispassionately and appropriately under all of the circumstances. 1LT Watada is, in my view, going about this entirely in the wrong way, and he does not have a legal leg to stand on. He knows this, his lawyer knows this, which is why they are not addressing the substantive law, but taking advantage of procedural anomalies. Good defense lawyers do this. And although his lawyer is doing right by his client now, I do not believe he is a "good" lawyer, just lucky (in this instance), if only temporarily so. If the government decides not to appeal he will have prevented Watada from going to court, and thus protected his client, but he will not have "won" his case. On the merits, it is a loser, and he knows this. Posturing aside, the law does not favor him. Judge Settle's opinion is procedural only, and does not address the merits. On the merits he knows it is a quixotic quest.
