Federal judge rules Iraq war objector cannot face second court-martial

[JURIST] US District Judge Benjamin Settle ruled [order, PDF] Tuesday that Iraq war objector 1st Lt. Ehren Watada [advocacy website; JURIST news archive] cannot face a second court-martial on all charges for which he already faced court-martial. Settle's order held that a second-court martial of Watada on three of the five charges in his first court-martial would constitute double jeopardy [LII backgrounder] in violation of the Fifth Amendment of the US Constitution. Settle had granted an injunction [JURIST report] against the second court-martial in November 2007 in order to resolve the double jeopardy dispute. The controversy over Watada's second court-martial concerns the declaration of a mistrial in the case by Lt. Col. John Head, the military judge overseeing the court martial, after he rejected a Stipulation of Fact by Watada and the government, conceding that Watada was guilty of the charge of Missing Movement when he missed a flight that would have flown him to his post in Iraq. Head rejected the Stipulation to Fact on the grounds that it was not a confessional stipulation because Watada believed that he had a justifiable reason for missing the flight, and that reason constituted a defense to the Missing Movement charge. In ruling that Watada cannot be face court-martialed for a second time on certain of the charges, Judge Settle wrote

The strictest scrutiny should be applied to the trial judge's determination [to order a mistrial] because the record reflects that the Government moved for a mistrial on the basis that it was unable to proceed with its case. In the alternative, the judge did not exercise sound discretion when he failed to engage in a procedurally adequate development of his determination that a mistrial was appropriate. Under either level of review, the record does not reflect that there was a manifest necessity to declare a mistrial over Petitioner's objection. As a result, the Government is barred from retrying Petitioner on Charge I [Missing Movement] and Charge II, Specifications 1 and 4 [Conduct Unbecoming an Officer and a Gentleman], because it would violate Petitioner's Fifth Amendment right to be free from double jeopardy.
The Seattle Times has more.

Settle had already stayed court-martial proceedings, scheduled to begin in October 2007, and later extended the stay [JURIST reports], after Watada asked the US District Court for the Western District of Washington for relief while an appeal is pending with the US Court of Appeals for the Armed Forces. Watada, a Honolulu native who is the first commissioned officer in the US military to publicly refuse deployment to Iraq, has refused to be classified as a conscientious objector because he does not object to war in general, just to the "illegal" war in Iraq. He offered to serve in Afghanistan, but the US Army refused. His vocal protests and participation in rallies by Veterans for Peace and Courage to Resist [advocacy websites] led to the charges of conduct unbecoming an officer and the original charge of contempt toward officials.

 

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