By Hal Bernton
Seattle Times staff reporter
A U.S. District Court judge today granted a preliminary injunction that bars the Army from proceeding with a second court-martial trial of 1st Lt. Ehren Watada, the first Army officer to face prison for refusing to deploy to Iraq.
"This is an enormous victory, but it is not yet over," said Kenneth Kagan, a counsel for Watada.
Watada's attorneys hope that Settle eventually will opt to issue a permanent injunction, which would prevent any retrial of Watada unless the Army was able to overturn the decision on appeal.
Watada's court-martial in February ended in a mistrial, and his attorneys have claimed that Fifth Amendment constitutional protections prevent Watada from being tried twice for the same crime. At issue is whether this protection, known as double jeopardy, applies when a trial is under way, and then is halted by a judge over the objections of a defendant. Watada had asked to complete his first court-martial trial.
In his written decision, Judge Benjamin Settle of Tacoma found that the Army judge "likely abused his discretion" in the court-martial, and that Watada's District Court case about violations of Fifth Amendment protections was likely to succeed on merit. He ordered the U.S. Army not to proceed with a Fort Lewis court-martial that could result in up to six years in prison for failing to deploy and conduct unbecoming an officer. "The same Fifth Amendment protections are in place for military service members as are afforded to civilians. There is a strong public interest in maintaining these rights inviolate," Settle wrote "... To hold otherwise would ignore the many sacrifices that American soldiers have made throughout history to protect these sacred rights."
Watada last year publicly denounced the Bush Administration for waging an illegal war in violation of both U.S. and international law. And, in June of 2006, he refused to join the 3rd (Stryker) Brigade, 2nd Infantry Division out of Fort Lewis as the soldiers deployed to Iraq. Watada still serves at Fort Lewis. The Army Office of the Staff Judge Advocate — in a statement released late today — said it plans to file additional briefs on the double jeopardy issues. "We look forward to the opportunity {$326}to further explain to the District Court judge the full extent of the protections and safeguards that are afforded to a military accused," the statement said. "We believe that this additional information will be helpful as the judge prepares to issues his final ruling in the case.
"This is an enormous victory, but it is not yet over," said Kenneth Kagan, a counsel for Watada. Watada's attorneys hope that Settle eventually will opt to issue a permanent injunction, which would prevent any retrial of Watada unless the Army was able to overturn the decision on appeal.
