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Lt. Watada makes it to The Nation.

Watada's Double Jeopardy

As a lawyer I am appalled at Judge Settle's intervention. It is a longstanding tenet of judicial review that issues such as the one Watada raised are not justiciable in civilian court until they are addressed before the trial court, and even then there is an appeal process available through the military courts. In this instance, the intervention was unwarranted, and likely will be deemed an abuse of his discretion. In addition, of course, as I previously noted, his argument is meritless. Substantively, the judge doesn't understand military law or how double jeopardy applies. It should be surprising, actually, because Judge Settle was once (quite a long time ago) a Judge Advocate in the Army. He is new to the bench, though, and I think he is going to be learning a lot about what it means to be a District Court Judge.

A victory for Watada:


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!

BTW friend Ponderer, I have not forgotten this:


It seems to me that you have been wrong on many counts in this case, and it is my firm belief that you have been wrong not because of errors in your own knowledge or judgment of the applicable laws, but because you have been getting bad information. I think the malice you have expressed toward Lt. Watada is misguided, and I think that is the effect intended by those who are propagating the bad information you have been getting.

Time will tell. But I promise you, I will return to this. I have a deep-seated personal interest in the case and all its ramifications, as you are aware, because of the extent to which my own life has been shaped by similar circumstances.

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.

While I do believe that there are instances of a moral/ethical epiphany, I have something of a problem with someone who has volunteered to serve subsequently developing what might appear to be a convenient sense of ethics in order to evade the ultimate consequences of that military service.

A few years ago, a US Army NCO with a good service record refused to obey an order to wear a blue beret and a UN shoulder-patch while serving with a UN "peacekeeping" detachment. The soldier, Specialist Michael New, never also questioned the duty to which he was assigned, only the legality of requiring him to wear what he regarded as a "foreign" uniform item and serve in a "foreign" army; for him it was a matter of conscience. IIRC, he was court-martialed and convicted of refusing to obey a lawful order and subsequently discharged (bad conduct type?) from the service.

I see that soldier's action no less a matter of conscience than that of the officer now in question, and also as far less a matter of a possible convenient conscience.

Perhaps it's a case of wanting to eat the cake and have it, too. Is Lt. Watada expecting to carry out an act requiring considerable moral courage without being willing to accept what is generally considered to be the extremely high price for such actions? The NCO apparently was far more willing to accept the consequences of his presumptively insubordinate act that is the officer.

I have spent some time reviewing Judge Settle's decision, and I think I will point out what I believe to be the fundamental errors. In part that is to correct the following:My prediction was indeed correct. Judge Settle's intervention is improper, and on appeal, I believe that the trial and military appeals decisions (which were the focus of the previous prediction) will be vindicated.

I do not think that the government "will not appeal" because the unit has returned and 1LT Watada's continued presence is quite a sore subject here. That being said, there is also the possibility that Judge Settle and/or the 9th Circuit will sit on the issue for a considerable period of time. The injunction issued thus far is preliminary in nature, which, at present, cannot be appealed unless made permanent. Until the judge issues a permanent decision, the government cannot appeal. It will become permanent only after the passage of time if the Judge takes no further action. The 9th Circuit, however, is notorious for delaying consideration of appeals for ideological reasons and could spend a great deal of time hemming and hawing. In the case of Mitchell Rupe they sat on a death penalty case for years until the State brought a (successful) petition to the Supreme Court to force them to enter a decision.

So, for the record (and anyone who is not interested can skip the pedantics): Judge Settle's first error is with regard to District Court abstention in military cases. He misapplied the Parisi decision he cited, because the "harm" he is seeking to preclude is "no harm other than that attendant to resolution of his case in the military court system" and he is therefore explicitly prevented by numerous Supreme Court precedents from interceding. He should have abstained. The issues that 1LT Watada wishes to raise have been preserved for consideration on appeal, and no harm attaches unless he is convicted. He also relies only on decisions that address petitioners in custody. Watada is not in custody.

Second, Judge Settle applied the wrong standard for review. He relied on a Fifth Circuit decision (i.e. non-binding) Calley v. Callaway (yes, that is LT William Calley, of My Lai Massacre fame), which applies to convictions. Watada is not in custody and has not been convicted, much less appealed that conviction. The standard he applied is incorrect. Even more galling, frankly (and here there is some judicial legerdemain involved), he completely ignored the military court decisions saying that "it is unclear whether the military courts applied the proper standard of review." Anyone who reads the decision will note that he never addressed Judge Head's decision at all, where the standard and application of the law is laid out. Since the appellate courts agreed, there was no basis for them to render a lengthy opinion. This is, IMO, rather shabby for a judicial decision. But, that sets the stage for the big error.

Third, Judge Settle incorrectly concluded that the question before it was not "uniquely military." As I previously noted in an earlier post the rule for double jeopardy in a court martial is different than in civilian court. Judge Settle completely ignored these distinctions. The Judge relied exclusively on non-military double jeopardy cases for his analysis. This is the big error because, as I pointed out earlier, the prohibition on double jeopardy only applies after jeopardy has attached. The rest of his analysis fails because he completely ignores the fact that jeopardy had not yet attached to Watada. This error is HUGE. None of the rest of the analysis (even though it has additional errors) really matters because that is the fundamental point of double jeopardy and he completely missed it.

Thanks for your input, Ron. Let me elucidate a bit.

What are "the ultimate consequences of that military service"? What is a "convenient sense of ethics"?

I wonder if you are familiar with the facts of the case, Ron. Lt. Watada offered to serve in Afghanistan rather than Iraq, so he was not evading dangerous combat duty. He also offered to resign his commission when the Army refused to redeploy him.

No, he isn't. He is expecting to carry out an act requiring considerable moral courage and to have his ethical questions aired in a court of law. He has, all along, expressed his willingness to accept the consequences.

Perhaps. Here are the statements you have made about him that led me to believe otherwise:
And then there is the post that you deleted completely, my friend. Do you remember what you had to say on that occasion? It was not kind.

You have argued incorrectly at every turn of this trial, friend Ponderer, each prediction you have made has been turned on its head in reality. You have expressed personal outrage and argued that both Judge Head and now Judge Settle have incorrectly applied the law. You have argued that Lt. Watada's attorney has acted in an unethical and incompetent manner. All this, taken together, has led me to believe that your feelings toward Lt. Watada are deep and visceral.

Your "prediction" that Judge Settle's intervention was improper was not a "prediction" at all, but an opinion, just as Judge Settle's opinion is an opinion. It either will, or will not, be heard in a higher court, depending on what the Prosecution chooses to do.