Court-martial of Watada might not come

By Christian Hill | The Olympian • Published November 09, 2007

1st Lt. Ehren Watada, the Fort Lewis officer who refused to deploy to Iraq last year, might never see another courtroom.

U.S. District Judge Benjamin Settle on Thursday imposed a preliminary injunction to temporarily bar the Army from trying Watada a second time while saying the officer likely will prevail on the merits of his pending case.

Since his first court-martial ended in mistrial in February, Watada's lawyers have argued that trying him a second time would violate his Fifth Amendment protection from being tried for the same offense twice. On Oct. 3, as Watada's appeals in the military court system were being exhausted, his attorneys took the rare step of asking a federal civilian court to step in.

Settle granted Watada's request for an emergency stay of the second court-martial, scheduled to begin Oct. 9, to allow him time to review the extensive legal arguments presented lawyers representing Watada and the Army. The injunction would be enforced pending the court's decision on Watada's claim.

Based on his 33-page court ruling, a second court-martial might not proceed.

Settle ruled that the civilian court's review of Watada's double-jeopardy claim is appropriate, rejecting claims by the Army that the court can only step in after the conclusion of the second court-martial and likely appeals within the military court system.

He also found that the granting of a preliminary injunction is necessary in part because Watada will "probably prevail on the merits" of his case, his ruling said.

Settle reached that conclusion largely because of what he said was the abuse of discretion by Lt. Col. John Head, the military judge who presided in Watada's first court-martial, in rejecting a so-called stipulation of fact agreed upon by the government and defense that led to the mistrial, the ruling shows.

Watada, who lives in Olympia, had been charged with missing troop movement and two counts of conduct unbecoming an officer for his statements critical of the Bush administration and its rationale to go to war in Iraq.