In a rare, last-minute move, U.S. District Court Judge Benjamin Settle on Friday put Watada's Tuesday court-martial on hold. In the weeks ahead, Settle will decide whether this second trial should proceed, or be quashed as a violation of the officer's constitutional rights that protect against double jeopardy, or being tried twice for the same crime.
Watada's first trial unraveled in February when a military judge expressed misgivings over Watada's interpretation of a pretrial agreement. The judge, over objections by the defense, ruled a mistrial. Watada's attorneys argued that a second trial sought by Fort Lewis prosecutors would represent double jeopardy, and they unsuccessfully sought to persuade two military appeals courts to block the trial.
The defense attorneys turned to civilian courts this week. And the case was assigned to Settle, a longtime Shelton lawyer and President Bush appointee who assumed the judgeship this summer.
Settle appears to be taking a more favorable view of defense arguments. In the Friday ruling, he wrote that "the record indicates that petitioner's double-jeopardy claim is meritorious." He is expected to issue a final ruling in coming weeks.
The above is from Hal Bernton's "Federal judge tells military to halt Watada court-martial" (Seattle Times). Tomas Alex Tizon's "Iraq war objector's retrial delayed" (Los Angeles Times) offers more on Ehren Watada's court-martial being placed on hold :
Watada's supporters said the move by U.S. District Judge Benjamin H. Settle signaled the possibility that he might cancel the military trial altogether, ending a legal battle that began 16 months ago.
"If we win the next part, we win," said Watada lawyer James Lobsenz, referring to Settle's forthcoming decision on whether Watada legally can be tried twice on the same charges.
[. . .]
Settle's four-page order Friday acknowledged it was unusual for a civilian court to intervene in a military trial. Government attorneys have argued the federal court does not have jurisdiction. "As a general rule," Settle wrote, "federal civilian courts should not entertain such petitions until all available remedies within the military court system have been exhausted."
Settle concluded Watada had exhausted his military options. Settle made it clear that he wasn't ruling on the double- jeopardy question but was seeking more time to reflect on the matter.
The stay will be in effect until at least Oct. 26.
And this is from Mike Barber's "Federal judge delays Watada trial: Lawyers call a 2nd court-martial double jeopardy" (Seattle Post-Intelligencer):
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.
[. . .]
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.
The Christian Science Monitor's Dean Paton pens a column for the Seattle-Post Intelligencer that's all "on the one hand, on the other" which really isn't the point of a column since a columnist is supposed to have a point of view. From it, will note the following:
Some would say, of course, that America is a sovereign nation over which international laws should hold no sway. Yet as Richard Falk, likely this nation's leading expert on international laws of warfare, points out, Article 6, Section II of the Constitution says any international law to which the United States becomes a signatory immediately becomes U.S. law as well. Because the U.S. signed the United Nations Charter, which prohibits aggressive war, it is automatically against the laws of the United States to wage such a war.
On that point Watada wanted to base his case. Precisely what Head, the Army judge, refused to let happen.
Falk, now Distinguished Professor of Global Studies at the University of California at Santa Barbara, was modest enough to point out that at least four other scholars in the country should be counted among America's leading thinkers on the international laws of warfare, and he offered their collective opinion of Watada's central assertion:
"All five of us were in agreement that the war in Iraq is illegal," he said. "And so if Lt. Watada is upholding the Constitution, and he reasonably believes that the war is illegal, then it certainly would seem plausible for him to refuse to participate." (Lest anyone think this quintet of experts is a squad of knee-jerk, one-note liberals, Falk said all five also agreed that the war in Afghanistan indeed met the criteria for a "legal war," even if some isolated actions might have later violated the laws of peace and warfare.)
In news of other war resister, Canadian radio is reporting that the mayor of Nelson -- where Robin Long was arrested this week and where Kyle Snyder was arrested in February -- is openly bragging that the final report on an investigation into the police department and police chief Dan Maluta's illegal arrest of Synder is not only complete, but he's had it for a week and hasn't bothered to read it. Repeating: The mayor, John Dooley, charged with oversight has had the report on the investigation and does not see the point in 'rushing' to read it. He brags that he has carried it around in his briefcase "all week" -- which does explain how the Nelson police, under Maluta, have been able to conduct themselves as they have.
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