Friday, November 09, 2007

Judge Benjamin Settle rules in Watada's favor

A U.S. District Court judge on Thursday barred a second court-martial of 1st Lt. Ehren Watada while the Army officer pursues his claim that it would violate his constitutional rights. It was a legal victory for Watada, the first Army officer to face prison for refusing to deploy to Iraq.

The above is from Hal Bernton's "Watada court-martial now less likely?" (Seattle Times).

Ehren Watada is the first officer to publicy refuse to deploy to Iraq. When he was informed he would be deploying to Iraq, he did as his superiors had advised him, learn as much as he could so he could better serve those under his command. As he began researching, he realized that the Iraq War was illegal. In January 2006, he phoned his mother, Carolyn Ho, to advise her that he was going to be doing something very difficult, refusing to deploy.

When he advised the military chain of command, their response was that they could come to some understanding. Watada offered to deploy to Afghanistan, he offered to resign. He presented various alternatives and did so because he honestly believed if his superiors stated that they wanted to work with him on this, they meant it.

As months passed, he became aware of the fact that nothing was being accomplished.

In June of 2006, he went public with his refusal to deploy and became the first officer to do so. The military's response was to begin arguing for a court-martial. In August 2006, an Article 32 hearing was held and, weeks and weeks later, the finding was released: the military would proceed with a court-martial. That court-martial took place in February of 2006.

Among the issues at stake were what Watada did or did not say in interviews and publicly at a Veterans for Peace convention. The military was asking journalists and peace activists to testify. Prior to the court-martial the issue of journalists testifying was set aside by a stipulation. The military drew up the stipulation with presiding Judge Toilet (aka John Head) involved in it and signing off on it. The military presented the stipulation to Watada and his defense. All sides and the judge agreed to it.

On Monday, February 5th, Watada's court-martial began. It continued on Tuesday when the prosecution argued their case. Wednesday, Watada was to take the stand in his semi-defense. Semi-defense? Despite the gravity of the charges, despite the maximum number of years in prison he was facing if convicted, Judge Toilet refused to let Watada explain why he would not deploy. Watada was boxed in to a yes-or-no-I-did-it type of defense which is no defense at all. Judge Toilet also refused to allow the defense to call various witnesses.

Having so stacked the deck against Watada, it should have been an easy conviction. However, Tuesday's prosecution witnesses ended up making strong cases for Watada.

Wednesday morning, Judge Toilet was suddenly concerned with the stipulation -- the same stipulation he was involved one, the same one he signed off on, the same one both the defense and the prosecution agreed to, the same stipulation Judge Toilet had explained to the military jury on Monday. Suddenly, the stipulation was a problem.

Aaron Glantz (on that Wednesday's The KPFA Evening News): "It seemed at the beginning that it would to be a slam dunk for the prosecutors but here we are, three days into the trial, and it's ended in a mistrial."

Judge Toilet attempted to get Watada to withdraw his consent to the stipulation. Watada refused. Judge Toilet was obviously upset, some might see he looked "flushed." As Bill Simpich's "The Watada Mistrial: Here's What Really Happened" (Truthout) noted, "The judge raised concerns about the document on Wednesday morning, moments before Lt. Watada was set to take the witness stand." He then attempted to get the prosecution to agree to a mistrial. They initially did not take the bait. After they did, and in spite of defense objection, Judge Toilet ruled a mistrial, thus ending the court-martial, and immediately scheduled a new court-martial to begin in March.

That court-martial never took place. Like many of Judge Toilet's 'rulings,' it was problematic. When Judge Toilet ruled a mistrial, double-jeopardy had already attached to the case, as Marjorie Cohn, president of the National Lawyers Guild, immediately noted.

Ruling on himself, Judge Toilet found no reason he couldn't preside over a second court-martial of Watada and found no reason to be concerned about the Constitutional prohibition against double-jeopardy.

US District Court Judge Benjamin Settle wasn't so quick to dismiss the Constitution. He issued one stay and then a second. The second expired today.

Yesterday, Judge Settle made more decision.

From Christian Hill's "Court-martial of Watada might not come" (The Olympian):

Settle ruled that the civilian court's review of Watada's double-jeopardy claim is appropriate, rejecting claims by the Army that the court can only step in after the conclusion of the second court-martial and likely appeals within the military court system.
He also found that the granting of a preliminary injunction is necessary in part because Watada will "probably prevail on the merits" of his case, his ruling said.
Settle reached that conclusion largely because of what he said was the abuse of discretion by Lt. Col. John Head, the military judge who presided in Watada's first court-martial, in rejecting a so-called stipulation of fact agreed upon by the government and defense that led to the mistrial, the ruling shows.

From Hal Bernton's "Court bars second court-martial for Watada, for now" (Seattle Times):

"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."

Bernton notes that military plans to file additional briefs and quotes Kenneth Kagan -- along with Jim Lobsenz, Watada's civilian attorney -- cautioning that the case is still not over.

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