No Second Trial For Watada

Ehren Watada refused to deploy to Iraq after he "gradually came to the conclusion that the Bush administration had lied about the basis for war and had betrayed the trust of the American people." Watada stipulated that he did not deploy with his unit as ordered. The judge at Watada's courts martial decided that Watada did not understand the legal significance of that stipulation and told the jury to disregard it. The prosecution had already rested its case. The judge granted the prosecution's request for a mistrial.

U.S. District Judge Benjamin Settle ruled today that Watada cannot be tried on those charges again. The government rested without proving its case, and Watada did not request or provoke the mistrial. Under those circumstances, the protection against double jeopardy bars a second prosecution. [More...]

Watada was also prosecuted for unbecoming conduct for making uncomplimentary comments about the war. Two of those charges survive today's ruling, but they may not survive Watada's claim that he has a First Amendment right to dissent from the government's position on an issue of public importance.

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    wow, that's pretty amazing. (none / 0) (#1)
    by cpinva on Wed Oct 22, 2008 at 12:07:39 AM EST
    was the prosecution merely inept, assuming they'd have another bite at the apple, or do you think this was done intentionally, and they'll appeal this ruling?

    as much as i was/am opposed to the current action in iraq, mr. watada volunteered for the military, it isn't his position to decide what orders he will or won't obey, unless he's claiming the order itself was illegal.

    Not a precedent, but a victory anyway (5.00 / 1) (#5)
    by Peter G on Wed Oct 22, 2008 at 09:03:51 AM EST
    I am a lawyer (and have represented a number of conscientious objectors, both under the draft and within the military).  IIRC, it was the military trial judge who "screwed up" in Watada's case, by precipitously and unnecessarily declaring a mistrial when he didn't like something or other about how the prosecutor presented the case.  That triggered the double jeopardy bar against any retrial (although the defense had to go to a civilian federal court to get a writ of habeas corpus to enforce Watada's constitutional right not to be tried twice for the same offense).

    As for the "illegal war" and "illegal orders" issue, a member of the military does have a right and a duty to refuse an illegal order, but does so at his/her peril.  The soldier can expect to be court-martialed if his/her judgment on the legality of the order is not patently correct to his/her commander.  If the soldier then faces a court martial, the military jury will then be the judge (subject to appellate review) of whether the soldier correctly exercised the right to refuse.  So the incentives not to refuse are pretty intense.  

    Also, the "illegal war" question is viewed as political, not legal.  The right to refuse an "illegal order" refers to something more immediate and personal in the order, like an order to kill a captured enemy combatant.  No military judge has allowed as a defense that the solider considered the war or mission as a whole to be illegal, and thus that any participation in it would be illegal.


    I have watched this trial closely (none / 0) (#6)
    by Militarytracy on Wed Oct 22, 2008 at 09:34:22 AM EST
    Do you think it is possible that the judge screwed this up deliberately in order to avoid the public outcry that would follow finding Watada guilty?  I know that many Veterans groups and organizations had made some heavy plans for protesting if Watada was found guilty for refusing to deploy to Iraq.

    That was exactly what he claimed (none / 0) (#2)
    by JWeidner on Wed Oct 22, 2008 at 01:01:07 AM EST
    As I recall.  His assertion was that the invasion of Iraq was an illegal action and he was therefore justified in disobeying his orders to deploy.  The government felt otherwise.

    Does this create a precedent? (none / 0) (#3)
    by cymro on Wed Oct 22, 2008 at 03:24:35 AM EST
    I'm not a lawyer, but if this ruling is not appealed, then does it create a precedent for others -- like, for example, members of the National Guard who have already been forced to serve multiple tours of duty -- to disobey an order to return yet again?

    no (none / 0) (#4)
    by Nasarius on Wed Oct 22, 2008 at 07:59:52 AM EST
    IANAL either, but it looks like the only reason that charge has been thrown out is because it ended in a mistrial, and as explained above, he can't be tried again.

    Following the links, the "illegal war" defense was not allowed to even be presented.


    While I have been (none / 0) (#7)
    by flyerhawk on Wed Oct 22, 2008 at 09:41:40 AM EST
    staunchly against this war since Day 1, I can't find much reason to support Watada.  

    The war, much to my dismay, does not violate US law.  He is duty bound to follow orders.  

    I don't understand why the military judge would take a dive on this one.

    By neither convicting nor exonerating him, (5.00 / 1) (#8)
    by MyLeftMind on Wed Oct 22, 2008 at 10:05:23 AM EST
    they've left everything still ambiguous.  No precedent is set, no conviction for the public to protest, and the next person who tries it still faces the same likelihood of conviction.  Status quo is maintained, and the war goes on.  

    Ewww the reality. spoken like someone who has (none / 0) (#14)
    by Militarytracy on Fri Oct 24, 2008 at 06:02:35 PM EST
    once been encased in a uniform.

    If invading a nation... (none / 0) (#9)
    by Dadler on Wed Oct 22, 2008 at 11:41:56 AM EST
    ...that did nothing to you and posed no threat to you is not illegal, then the term "illegal" in reference to war means nothing.  Once you decide to engage in unprovoked mass murder, the laws of YOUR land cease to be the only ones in play.  Unless, of course, one considers the "rights" of your victims to be non-existent, which we obviously do.

    and that, i bet, is exactly why (none / 0) (#10)
    by cpinva on Wed Oct 22, 2008 at 12:34:12 PM EST
    the judge did what he did. this way, those annoying questions don't get to see the light of day in a courtroom.

    absent a draft, there should be no conscientious objectors in uniform, so i don't see that defense flying.


    people change their minds (none / 0) (#12)
    by txpublicdefender on Wed Oct 22, 2008 at 12:38:32 PM EST
    Someone can certainly become a conscientious objector after they have enlisted.  People do have philosophical and religious conversions after they've enlisted.

    US law isn't the only law at issue (none / 0) (#11)
    by txpublicdefender on Wed Oct 22, 2008 at 12:36:14 PM EST
    It's not just US law that is at issue when the issue of following/obeying an illegal order comes up.  The Nuremberg Trials were the ones that set the precedent of "I was just following orders" not being a legal defense to international war crimes charges.  And German leaders were, in fact, prosecuted at Nuremberg for "waging aggressive war," so the act of waging the war itself was a charge brought against them, although it was brought against the leaders and not the foot soldiers.

    I have followed this case very closely, living here in Washington state.  Before his trial, I heard Watada speak at a church here in my town.  He struck me as an intelligent man who was committed to his principles.  He also struck me as someone who was at peace with his decision and the probability that it would result in him going to jail.  He believed that he had the legal right and obligation to resist the illegal order to deploy, but also recognized that if the law did not recognize it as a right, it was still his moral duty, and if he needed to pay for it with imprisonment, then he was at peace with that.  He really was inspiring.

    When I first read about the judge's decision in requesting the mistrial, I believed that double jeopardy would bar his retrial.  I, too, wondered if the judge wasn't intentionally screwing things up.  I suppose we'll never really know, but it certainly seemed to me at the time like a boneheaded and needlessly hasty decision made by the court.


    I don't think (none / 0) (#13)
    by flyerhawk on Thu Oct 23, 2008 at 11:42:18 AM EST
    that the Nuremburg Trials should be used as a beacon of justice.  

    IIRC, wasn't the argument that Germany had signed treaties forbidding war crimes thus the soldiers did in fact violate the law?