Watada Mistirial: Boom to the Anti-war Movement?

Lt. Ehren Watada, whom I’ve written about before, had the case against him declared a mistrial on Tuesday. Coupled with some of the additional information that has come out about the start of the Iraq War, this announcement is a big win to the anti-war movement that was even more galvanized by Watada refusing to deploy back in June of last year.

As I said before, I applaud Lt. Watada for taking the stand he has taken. It takes a big, steel pair to oppose deployment to Iraq. Of course, many of us on the left have our pair already since many of us objected to going to Iraq from the very beginning. The problem with the military’s case against Lt. Watada is that they refused to allow him (read his lawyers) to argue his base point: he refused an illegal order that stemmed from the illegal invasion and occupation of Iraq. By refusing to allow this point to be argued, there really wasn’t much of a defense that Watada and his lawyers could offer. The stipulation of fact that Watada signed, as described in the article linked to above, basically just acknowledged his refusal to deploy and that he made public remarks about his refusal to deploy. Apparently Judge Head, who presided over the case, felt that by signing the stipulation, Watada was, in effect, admitting guilt to charges that he pleaded not guilty to. The mistrial itself was initiated on behalf of the prosecution, not the defense. That’s what makes this interesting. I suspect, as do many others in the blogosphere, that the government felt its case was unraveling due to a proposed legal instruction by Watada’s lawyer, Eric Seitz:

Since the judge had recently ruled that the order given to Lt. Watada to deploy to Iraq was “legal,” Seitz took the logical next step. Entitled “Reasonable Mistake of Fact/Law,” his new instruction was designed to inform the panel that even if Lt. Watada were “mistaken” in his belief that the order was illegal, a defense to the “missing movement” charge would be viable if the panel made a finding that Lt. Watada’s belief that the order was illegal was “reasonable.”

This fact alone caused the prosecutors in this case to basically tremble in their corfams, since it would still allow Watada to use his original argument that the war is illegal. So the prosecutors requested a mistrial and Judge Head (first name is NOT Richard by the way) granted it.

With the case now declared a mistrial, a couple of points have been raised: Can another trial be brought to court on the same charges? Several articles I’ve read seem to indicate that Watada can NOT be brought up on these same charges of missing movement and conduct unbecoming an officer due to the double jeopardy clause of the 5th Amendment to the Constitution. However, in perusing the Wiki article on double jeopardy, it would appear that a new trial can still go forward:

For example, a second trial held after a mistrial does not violate the double jeopardy clause, because a mistrial ends a trial prematurely without a judgment of guilty or not guilty.


In the U.S. military, court martials are subject to the same law of double jeopardy, as the U.S Constitution is the supreme law of the military, superceding the Uniform Code of Military Justice.

Now I’m not a lawyer, nor have I studied law enough to say I’m anything close to an expert here, but it appears that the retrial of Lt. Watada that has been scheduled for March 19, 2007 will be allowed to go forward regardless of his lawyer’s claims that it would be illegal to do so. The only recourse that Seitz has is having to prove “abuse of discretion”. However, an SFGate.com article concerning the mistrial quotes the 9th US Circuit Court of Appeals:

When a mistrial is granted over the defendant’s objections, “retrial is permitted only if there was a ‘manifest necessity’ for a mistrial,” the Ninth U.S. Circuit Court of Appeals said in August, quoting an earlier Supreme Court ruling. The court said double jeopardy is violated unless the judge has considered all the alternatives and “properly determined that the defendant would benefit” from halting the trial.

So I’m still kind of undecided on whether the Army will be able to retry Lt. Watada for both the missing movement and conduct unbecoming charges. Hopefully, they’ll just let this one go rather than get into a long, drawn-out fight that seems almost impossible to win for either side. As I stated in my first post on the Watada case, it would have been easier to just allow Lt. Watada to resign his commission or be deployed to Afghanistan as he requested.

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