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Editor's Comment: The second court-martial of war resister First Lt. Ehren Watada is scheduled to begin Tuesday, October 9. The story below details Watada's attorney's challenge to the proceeding. Truthout will be covering the court-martial from Fort Lewis, Washington, beginning Monday. -ma/TO

    Second Trial Illegal, Watada Argues
    By Mike Barber
    The Seattle Post-Intelligencer

    Wednesday 03 October 2007

Lawyers turn to federal judges in Seattle to stop new court-martial.

    Lawyers for Fort Lewis 1st Lt. Ehren Watada, who in June 2006 went public with his refusal to serve in Iraq and said the war is illegal, asked the U.S. District Court in Seattle on Wednesday to halt his court-martial, which is only days away.

    Watada's second court-martial is slated to begin Tuesday. His first court-martial earlier this year ended in a mistrial before a jury could deliberate.

    Watada's lawyers said they hope for a decision Friday. Monday is a federal holiday, Columbus Day.

    Before Watada's lawyers announced their move, Fort Lewis officials issued a news release saying the court-martial was slated for 9 a.m. Tuesday.

    Watada is charged with missing movement with his unit to Iraq and of conduct unbecoming an officer for anti-war statements he made in the media and as a speaker at the national convention of Veterans for Peace in Seattle in the summer of 2006. If convicted, he could face up to six years in prison.

    Watada's case is being appealed on grounds that a second court-martial violates his constitutional protections against double jeopardy - being tried twice on the same charge - because he was court-martialed earlier this year on those charges. But, over his objection, a mistrial was declared "without there being the requisite manifest necessity for such declaration," said court papers filed Wednesday. The military judge, Lt. Col. John Head, ordered a second trial.

    The U.S. Army Court of Criminal Appeals and Head have ruled otherwise, dismissing the double-jeopardy claims. The issue last month was presented to the U.S. Court of Appeals for the Armed Forces, the military's highest court and made up of civilian judges who hear military issues.

    "We believe we have a strong case and are looking forward to litigating the double-jeopardy issue in federal court," one of Watada's lawyers, Ken Kagan, said.

    Kagan and Jim Lobsenz, both of the Seattle law firm Carney Badley Spellman, Wednesday filed a writ of habeas corpus and a request for an emergency stay in Seattle federal court because the Appeals Court for the Armed Forces has not ruled and the trial date is quickly approaching.

    Among other remedies, Watada's lawyers have asked the federal court in Seattle "to issue a writ of habeas corpus releasing (Watada) from all restraint imposed by the pending court-martial charges, and declaring any trial on such charges to be barred and prohibited by the double-jeopardy clause of the Fifth Amendment."

    After learning of the new court challenge, Fort Lewis officials said in a statement that they had followed the law in scheduling a second court-martial.

    "We've not seen the filing or heard a ruling on it from the court, so we will not speculate on what effect it may have on next week's scheduled trial. However, the government has followed the law and rules throughout the process of bringing this case to trial. The U.S. Army Court of Criminal Appeals in Balston, Va., determined that this case was not prohibited by double jeopardy and may properly proceed to trial. The court issued its ruling after considering comprehensive briefs and arguments from the parties."

    Kagan said he thinks that there's a likelihood a federal judge will accept the case because military officers are federal officers who fall under the Seattle federal court's jurisdiction.

    Kagan said he believes there is "a good chance" the court-martial will be delayed because local federal judges feel bound by precedents of the 9th U.S. Circuit Court of Appeals and other higher civilian courts. "Those circuits have looked at this issue and concluded when there is a decent double-jeopardy claim, you have to stop the trial, and you've got to review it," Kagan said.

    Court documents show that Watada's term of service as an active-duty military officer ended in December, but he has been held over because of the legal proceedings. He refused to go to Iraq in June 2006 with the 3rd Stryker Brigade.