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Civilian judge blocks Watada's second court-martial

A federal court judge on Friday temporarily blocked a court-martial scheduled for an Iraq War objector based at Fort Lewis.

The court-martial of Army 1st Lt. Ehren Watada had been scheduled to start Tuesday. Watada's attorneys argue the Army is violating his constitutional rights by trying him twice for the same crime.

Watada is charged with missing his unit's deployment to Iraq in June 2006 and with conduct unbecoming an officer for denouncing President Bush and the war.

In his ruling, U.S. District Judge Benjamin Settle concluded his court had jurisdiction on the request for an emergency stay because Watada "has exhausted his available military court remedies with respect to his double jeopardy claim."

Settle also decided that claim was "not frivolous."

The judge has asked for a response by the Army by Oct. 12 and additional briefs from Watada's attorneys by Oct. 17. The earliest the judge might rule, based on those arguments, is Oct. 19.

His stay will remain in effect until Oct. 26 or until further action by the court.

Jim Lobsenz, one of Watada's attorneys, noted that in Thursday's arguments, the judge primarily wanted to know whether he had jurisdiction "so we talked about that." The newly requested briefs will deal in more detail with the double jeopardy issue.

Lobsenz said Watada, who lives just east of Lacey, had been informed of the stay and "he's very happy — and I'm very happy too."

In a statement issued Friday night by Fort Lewis, the Army responded: "Every soldier is entitled to due process in answering charges made against him, and this case is no different. 1st Lt. Watada has always been, and will continue to be, treated fairly and according to law and military justice procedures."

Settle noted that "the Court has not been presented any evidence showing that Petitioner's double jeopardy claim lacks merit. On the contrary, the record indicates that Petitioner's double jeopardy claim is meritorious."

The judge added that the harm of being tried twice in violation of the double jeopardy clause of the Fifth Amendment includes the harm of undergoing a second trial proceeding. "Having preliminarily decided that Petitioner's double jeopardy claim is not frivolous, a stay of the military court-martial proceeding is justified," he wrote.

Watada contends the war is illegal and that he would be party to war crimes if he served in Iraq. The Army, which refused his request to be posted in Afghanistan or elsewhere, declared his first court-martial a mistrial in February, over the lieutenant's objections. If convicted, Watada could be sentenced to six years in prison and be dishonorably discharged.

The Army Court of Criminal Appeals has ruled that Watada can be court-martialed again, but Watada appealed that decision to the U.S. Circuit Court for the Armed Forces, which has not ruled, his attorneys wrote in their emergency motion for a stay.

The Circuit Court for the Armed Forces ruled Friday denying his appeal.

Watada's attorneys also are asking that he be allowed to leave the Army. Watada's term of service ended in December, but the pending legal proceedings have prevented his discharge. He continues to perform administrative duties at Fort Lewis.

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