Watada's Double Jeopardy

by JEREMY BRECHER & BRENDAN SMITH

[posted online on October 12, 2007]
http://www.thenation.com/doc/20071029/brecher_smith

The double jeopardy clause of the US Constitution
ensures that no American can be tried twice for the
same offense. But at a time when our civil liberties
are rapidly eroding, a drama is unfolding in Washington
State over whether that constitutional protection
applies to a US soldier.

After his February court-martial ended in a mistrial,
Lt. Ehren Watada, the first commissioned officer to
refuse to serve in Iraq, seemed certain to face a
second court-martial on October 9 at Fort Lewis, an
Army base near Tacoma. Three military courts had
rejected Watada's claim of double jeopardy, finding no
abuse of discretion by the military judge in declaring
a mistrial. But in an unusual civilian intervention in
a military legal process, US District Court Judge
Benjamin Settle issued a last-minute stay October 5 in
Tacoma, temporarily blocking the trial.

Settle will hear Watada's double jeopardy claim October
19. Nationwide Iraq Moratorium protests are scheduled
for that day, many of which will feature Watada's case
and his stand against the war.

Watada has consistently maintained that the Iraq War is
illegal under international law and the US
Constitution, and that to participate in it would make
him guilty of a war crime. At the video press
conference on June 7, 2006, in which he first announced
his refusal to go to Iraq, he explained, "It is my
conclusion as an officer of the armed forces that the
war in Iraq is not only morally wrong but a horrible
breach of American law."

Watada was tried in a military court in February for
failing to deploy and conduct unbecoming an officer for
his statements opposing the war. After the prosecution
had completed its case, the military judge, Lt. Col.
John Head, intervened, declared a mistrial and ordered
Watada to be retried. [See our report on that trial
here.]

The Fifth Amendment to the Constitution states that no
person shall be "subject for the same offence to be
twice put in jeopardy of life or limb." As the Supreme
Court explained in a seminal 1978 double jeopardy case,
United States v. Scott, "The underlying idea, one that
is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its
resources and power should not be allowed to make
repeated attempts to convict an individual for an
alleged offence."

Like the erosion of the right to habeas corpus, the
denial of the protection against double jeopardy
represents one more Bush-era encroachment of the
all-powerful state on basic human rights and the rule
of law.

While the legal arguments about double jeopardy are
quite complicated, Watada's lawyers are convinced their
arguments are strong. They wrote in their emergency
motion, "This is a remarkably clear case of an
egregious violation of the double-jeopardy clause."
Judge Settle's opinion states, "The Court has not been
presented any evidence showing that Petitioner's double
jeopardy claim lacks merit. On the contrary, the record
indicates that Petitioner's double jeopardy claim is
meritorious."

Growing Support

Watada's term of military service was scheduled to
expire on December 4, 2006. He has not been discharged,
however, because of the pending court-martial charges
against him. If convicted, he could face up to six
years in prison.

In an October 4 editorial, the Seattle
Post-Intelligencer declared, "However the defense
appeals turn out, we think there is a case for letting
Watada leave the Army without further ado."

There's no evidence yet that the Army is listening. But
Judge Settle's ruling has energized Watada's
supporters. They have formed a new national steering
committee with representatives from regions around the
country. Michael Wong, a military resister during the
Vietnam era who took much of the initiative to mobilize
the current wave of support, explained in an interview,
"We have three demands. The first is to bar the Army
from trying Ehren Watada again. The second is to drop
all charges against him. The third is to let him leave
with an honorable discharge."

Wong asks peace groups to incorporate Watada's defense
in local and national demonstrations and encourages
individuals to write letters to the editor and articles
to educate the public about the case. "They had a
chance to try him once. They blew it. The prosecution's
case was so weak that declaring a mistrial may have
been the only way that Judge Head could save the Army
from humiliation and defeat," he said. "They should
just drop the charges and let him go."

San Francisco organizer and lawyer Bill Simpich has
been active in both the Iraq Moratorium and the Watada
defense. He is working to make Watada's stand against
the war a central theme of the monthly Iraq Moratorium
Day October 19. "The Iraq Moratorium and the Watada
Support Campaign are moving tightly with plans to get
the word out to stop the war now so soldiers like
Lieutenant Watada aren't forced to choose between
supporting the Constitution and going to prison," he
said.

Simpich said the signature event of the Iraq Moratorium
Day in the Bay Area will be a dramatic end-of-workday
event outside the downtown office of Senator Dianne
Feinstein, co-sponsored by the Iraq Moratorium and the
Watada Support Committee. Community events and
leafleting at transportation hubs such as BART and
CalTrain will also link the Moratorium and the Watada
case.

In Washington, activists plan demonstrations and a
counterrecruiting effort outside a Seattle-area
recruitment center.

"The US government and military is waging two illegal
wars and is actively planning for a third," said
organizer Gerry Condon, referring to increasing
hostilities between the United States and Iran. "It is
more important than ever that we support GIs who follow
their own consciences and obey international law."

The Watada case is also drawing international
attention. Amnesty International issued a statement
October 5 warning that a guilty verdict would make
Watada "a prisoner of conscience who should be
immediately and unconditionally released."

Watada's case is different from typical conscientious
objector cases because the US military recognizes as
conscientious objectors only those who oppose war in
any form. Watada did not apply for conscientious
objector status because he said as a soldier he would
be willing to fight in a war--unlike Iraq--that was
necessary, legal and just.

Amnesty International argues in its statement that the
right to refuse to perform military service for reasons
of conscience, thought or religion is protected under
international human rights standards, including the
Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights
(ICCPR)--treaties that have been ratified by the United
States.

Watada's Impact

The Watada case has presented a serious challenge to
the military. As Daniel Ellsberg put it, "Lt. Ehren
Watada--who still faces trial for refusing to obey
orders to deploy to Iraq, which he correctly perceives
to be an unconstitutional and aggressive war--is the
single officer in the United States armed services who
is taking seriously...his oath."

Despite strong traditions in the military against
publicly criticizing the government, more than twenty
retired US generals have criticized the Commander in
Chief about Iraq or spoken out against the war. In
2005, five retired military panelists discussed the war
at Hampden-Sydney College in Virginia. Retired Brig.
Gen. John Johns told the San Diego Union-Tribune, "Four
out of five of us retired military panelists there said
it was a moral duty for us to speak out in a democracy
against policies which you think are unwise." One of
the participants, retired Lt. Gen. Robert Gard, said,
"When you feel the country--to its extreme
detriment--is going in the wrong direction, and that
your views might have some impact, you have a duty to
speak out."

In a video press conference announcing his refusal to
deploy to Iraq, Watada noted, "Although I have tried to
resign out of protest, I am forced to participate in a
war that is manifestly illegal. As the order to take
part in an illegal act is ultimately unlawful as well,
I must as an officer of honor and integrity refuse that
order."

While evidence of the war's illegality was barred in
Watada's court-martial, his position is grounded in
military law and doctrine. At a National Press Club
luncheon February 17, 2006, just a year before Watada's
court-martial, Gen. Peter Pace, then Chairman of the
Joint Chiefs of Staff, was asked, "Should people in the
US military disobey orders they believe are illegal?"

Pace's response: "It is the absolute responsibility of
everybody in uniform to disobey an order that is either
illegal or immoral."

The Army wants to sentence Ehren Watada to six years in
the brig for the crime of trying to fulfill that
absolute responsibility.