ruling also states that the trial cannot begin until at least October 26. The bigger question is whether it will ever happen at all. Now there is no chance that this case is going to escape strict international scrutiny. None.

Antiwar activists are jubilant at this unexpected turn of events, as the anticipated media coverage of this clash will inevitably encourage participation in the nationwide "Iraq Moratorium" community events on October 19 and the national mobilization against the war in eleven major cities on Saturday, October 27. (Source: http://www.unitedforpeace.org/.)

During the first trial in February 2007, Lt. Watada and his defense team put on a stunning display of resistance before a bull-headed judge in the heart of Fort Lewis and in the eyes of the mainstream media. Every prosecution witness had attested to the stout heart and integrity of the defendant. Lt. Watada was about to tell his story about his belief in the illegality of the war in Iraq, based on his officer's oath to the United States Constitution, (Source: http://www.thankyoult.org/content/view/1039/74/.) to what seemed like the entire world. (Source for this and succeeding trial description: http://www.thankyoult.org/content/view/1014/70/#Day%201.)

Abruptly, the judge halted the trial. Lt. Watada had submitted a document in open court at the beginning of the trial admitting that he had knowingly not boarded a plane to Iraq. The judge ruled that the lieutenant had made a fatal admission that would prejudice his defense.

It was the kind of argument that one might expect from a desperate defense attorney, but not from a judge. To top it off, Lt. Watada's own lawyer was asking for the trial to go forward even while the judge had ruled out all of Watada's defenses! It was apparent to observers that there was a real possibility that the military jury would be extremely lenient in deciding on Watada's guilt and sentence.

Since then, the question in activist and legal circles has been whether Lt. Watada should be forced to endure a second trial. The basis of the doctrine of double jeopardy is to ensure that the prosecution doesn't get a "mulligan" ( i.e., "do-over") whenever things aren't going their way.

The word was out that the Army Court of Criminal Appeals had granted a stay, and the assumption was that judges would spend years hoping that this would all somehow go away.

However, when the Army Court of Criminal Appeals ruled this summer in favor of the prosecution, the army saw an opening for a "snap trial". Activists were not following the case closely, believing that the stay was still in effect. Although the appellate court's decision dissolved the stay, that word didn't get out due to lack of publicity.

Two weeks ago, Watada's lawyers had gone to the next level - the U.S. Court of Appeals for the Armed Forces - and that court was apparently happy to do nothing and watch Lt. Watada go down. (Source: 10/5 Seattle P-I.)

The general rule is that a civilian judge will not interfere with a military proceeding. That's apparently why Watada's legal team waited until Wednesday to file their motion for stay. At that point, they could legitimately argue that they had exhausted their remedies.

The squeeze play to avoid publicity was in full effect. Early on Friday, Fort Lewis Public Affairs announced that media wanting to cover the trial had until Saturday at 4:30 pm to register with their office. (Source: David Mitchell and Gerry Condon, Courage to Resist; CtR organizer Jeff Paterson's letter.)

Rather than seek the testimony of journalists as in the initial trial - which only resulted in even further publicity - the Army subpoenaed regional anti-war organizers in an attempt to use their testimony against Lt. Watada.

It was a big moment for Northwest activists, who had been struggling to ensure at least a respectable showing of support for this unexpected trial. Their hands were already full in handling the campaign for Iraq war resister Robin Long, who was arrested on Monday in a small town just north of the Washington state line. Will Iraq War resisters be given sanctuary in Canada, like the Vietnam war resisters? The question is not yet settled, but the outpouring of support persuaded Canadian officials to temporarily release Long on Wednesday rather than deport him back to the US. The Watada victory was their second big win of the week. (Source: Courage to Resist, 10/3)

What has not changed is that Lt. Watada is facing six years in prison. One year of his looming prison term is based on a "conduct unbecoming an officer" charge, solely for a few well-chosen words in a historic speech last year to the Veterans For Peace Convention, with fifty Iraq War veterans standing by his side:

"Today, I speak with you about a radical idea. It is one born from the very concept of the American soldier (or service member). It became instrumental in ending the Vietnam War - but it has been long since forgotten. The idea is this: that to stop an illegal and unjust war, the soldiers can choose to stop fighting it ...

"I tell this to you because you must know that to stop this war, for the soldiers to stop fighting it, they must have the unconditional support of the people. I have seen this support with my own eyes. For me it was a leap of faith.

"For other soldiers, they do not have that luxury. They must know it and you must show it to them. Convince them that no matter how long they sit in prison, no matter how long this country takes to right itself, their families will have a roof over their heads, food in their stomachs, opportunities and education."

Bill Simpich is a civil rights attorney based in San Francisco.

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Watada Court-Martial Stopped

By Mike Barber

The Seattle Post-Intelligencer

Friday 05 October 2007Lawyers call a second court-martial double jeopardy.

A federal judge in Tacoma has delayed the court-martial of 1st Lt. Ehren Watada, a Fort Lewis Army officer who refused to deploy to Iraq.

In a rare intervention of a civilian court in the military justice system, U.S. District Court Judge Benjamin Settle granted the emergency stay to stop the court-martial.

Watada's trial, slated to begin at 9 a.m. Tuesday, is now postponed until at least Oct. 26, the judge ruled.

In granting the stay at 4:48 p.m. Friday, Settle wrote, "The court concludes as a preliminary matter, that it has jurisdiction over the petition and the petitioner's double jeopardy claim is not frivolous."

Watada's first court-martial earlier this year ended in a mistrial, and his lawyers argue that a second court-martial would amount to trying him twice for the same charges.

Settle was careful to point out that "the issues raised by the petition for habeas corpus bear no relation to the charges or defenses in the petitioner's (Watada's) court-martial proceedings." Settle was a military lawyer in the Army in the 1970s and was recently appointed to the federal bench by President Bush

Quoting case law, Settle wrote, "The irreparable harm suffered by being put to a trial a second time in violation of the double jeopardy clause of the Fifth Amendment stems not just from being subjected to double punishment but also from undergoing a second trial proceeding."

Because the case is being heard in federal court, the U.S. Attorney's Office now is arguing the government position with a military lawyer's help.

"Judge Settle has now preserved the status quo, giving us an opportunity to more fully brief him on the issues. We look forward to doing that," said Brian Kipnis, chief of the civil division for the U.S. Attorney's Office in Seattle.

Watada's lawyers, Jim Lobsenz and Ken Kagan of the Seattle firm Carney Badley Spellman, have argued that the circumstances of a mistrial declared in Watada's court-martial in February result in double jeopardy.

The mistrial was declared over Watada's objections and after a panel of military officers acting as a jury had heard evidence but not begun deliberations.

Watada's appeals have been dismissed by the military trial judge and the U.S. Army Court of Appeals. An appeal was made Sept. 18 to the Court of Appeals for the Armed Forces, the highest court in the military justice system.

Lobsenz and Kagan said they were compelled to ask the federal court on Wednesday to stop the court-martial. Watada's trial approached, and nothing had been heard from the armed forces appeals court. With Monday a federal holiday to observe Columbus Day, time was even shorter, they said.

Settle indicated at a hearing on Thursday that he might defer to the military appeals court if it made a decision by Friday, but at close of business Friday, it hadn't ruled.

Watada publicly refused to go to Iraq with the 3rd Stryker Brigade in June 2006, contending that the war there is illegal and has exposed members of the military to war crimes. He has been charged with missing movement and conduct unbecoming an officer. He could be sentenced to up to six years in prison if convicted.

Settle has set up a briefing schedule to examine the merits of the double jeopardy argument and how long he will continue the stay. The government has until Oct. 12 to file its arguments, and Watada's lawyers must reply by Oct. 17. Another hearing is planned for Oct. 19.

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