Lawyers for Lt. Ehren Watada, thought to be the first Army officer to publicly refuse to deploy to Iraq, are racing to stop his second court-martial before it begins Tuesday.
In several unsuccessful attempts, his lawyers have sought to dismiss the case on the basis of double jeopardy, arguing that the Constitution prevents Watada from being tried twice for the same offense.
Their request is pending before the nation's top military court, the Court of Appeals for the Armed Forces. Worried a decision won't arrive before the court-martial begins, they filed a request Wednesday in U.S. District Court in Seattle seeking a judge's order to stop the trial.
Lt. Col. John Head, the military judge who presided over Watada's first court-martial and dismissed his double-jeopardy argument, and Lt. Gen. Charles Jacoby Jr., who has authority to convene the court-martial as Fort Lewis' commanding general, are federal officers in Western Washington and therefore are under the court's jurisdiction, said Watada lawyer Kenneth Kagan.
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"The judge does have the authority to direct what the Army does," he said.
Federal appellate courts have held that if a lower court hasn't halted a trial in which there is a legitimate double-jeopardy claim pending, they "will step in and stop it," Kagan said.
Joe Piek, a spokesman for Fort Lewis, said post officials have not seen the filing and will not speculate on what effect it might have on next week's scheduled proceeding.
Watada's attorneys also asked that he be allowed to leave the Army, The Associated Press reported. Watada's term of service ended in December, but the pending legal proceedings have prevented his discharge.
He said the Army has followed the law in bringing the case to trial and noted a decision by a lower military appellate court that the court-martial can proceed because there would be no violation of the double-jeopardy protection.
"The court issued its ruling after considering comprehensive briefs and arguments from the parties," he said.
Watada's first court-martial ended in mistrial in February when Head concluded Watada did not fully understand a pretrial agreement he signed, a critical document that established facts agreed on by both his defense and Army prosecutors for the proceeding.
Watada is charged with missing troop movement and four specifications
of conduct unbecoming an officer stemming from statements critical of the Bush administration he made in interviews or during speeches. He faces up to six years in prison and dismissal from the military if convicted on all counts.
Watada, who lives in an apartment outside Lacey, has maintained that the war in Iraq is illegal and that he had a duty as an officer to defy an illegal order, in this case to deploy to support an unlawful occupation.
After Head dismissed the double-jeopardy argument in July, Watada's lawyers appealed to the U.S. Army Court of Criminal Appeals. At the end of August, the court denied the attorneys' petition, affirming there would be no violation of the double-jeopardy protection with the second court-martial.
The case then went to the Court of Appeals for the Armed Forces.
Watada was a fire-support officer assigned to an infantry battalion of the 3rd Brigade, 2nd Infantry Division (Stryker Brigade Combat Team). He was transferred to an administrative job after his refusal to board a plane bound for the Middle East on June 22, 2006.
Two days after his court-martial is scheduled to begin, his former brigade will have its formal welcome-home ceremony after serving 15 months in Iraq.