The Courage to Resist: Watada To Face Court Martial Tomorrow
(guest blogged by miss kitty)
"No person …shall…be subject for the same offense to be twice put in jeopardy of life or limb…"
Excerpted from the Fifth Amendment of the United States of America
So what is happening with Lt. Ehren Watada?
Znet: 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.
That stay is due to be decided upon on Friday, November 9th.
Whether or not one agrees with Watada's actions that led to his trial, the rights granted persons within the borders of the United States, by the Constitution and its Amendments, are being eroded further by the actions George Bush's government is taking against 1st Lt. Ehren Watada.
Mistrials are an exception to the rule against double-jeopardy.
1st Lt. Ehren Watada is without a doubt one of our current greatest military heroes! As a proud veteran I salute his courage!
Lets see how long it takes before this thread devolves into a bunch of people parroting Rush Limbaugh and calling the Lt. a phony soldier because he had guts enough to listen to his conscience. "Oh but he should have known what he was getting into when he signed up..." Right, ditto head.
I thought mistrails were different. That they weren't subject to double jepardy. I thought double jepardy was when a person was found innocent then later new evidence or whatever was found that made them guilty but because they had already been tried for the crime once they couldn't be tried for the crime a second time.
Yes, No, Maybe?????
1st Lt. Ehren Watada recognized this war was an illegal war and did the right thing by refusing to occupy another country illegally.
i would hope that when this ship is finally righted and the real crooks are impeached, disgraced and incarcerated, the real heroes of this revolution will be set free. it will be up to the true patriots of the nation to ensure that it happens. God bless him for having the courage to say no.
Mis-trials are always the exception to double-jeopardy.
As for the unseemliness of civilians interfering with the military process, although I tend to agree, don't we do the same when we interfere with boosh's drum-head trials?
Of course there he's the civilian head of the miltary in a judical process not in place yet, and superfluous to boot.
I haven't followed this at all. All I know is, I wouldn't go. If that means prison, so be it. That's nothing compared with blowing away innocent people. That's the kind of peace-nik I am. And that's my right.
Eric and IgnoranceNotBliss are correct. A mistrial is a trial that for whatever reason is declared to be void, sorta like an annulment of a marriage - for legal purposes it never happened, so since no verdict was rendered there is no double jeopardy if the accused is re-tried. A common cause for a mistrial is the "hung jury" where unanimous consent cannot be reached for either guilt or innocence and then it is up to the prosecutor whether to attempt a re-try the case. The only way that I can think of to use double jeopardy in this case would be to show that the judge declared a mistrial solely to prevent a verdict of "innocent" from being reached and I don't know enough about the circumstances in Watada's case to know if that is even a possibility.
Eric Jaffa @ 1:
read up.
If evidence has been presented, it is double jeopardy. If it weren't so, the Federal Court would haven't even opened the case file.[Edited at poster's request-Sitemonitor]"A different situation is presented when a mistrial is declared over the defendant's objection. Reprosecution will be allowed only if the mistrial resulted from "manifest necessity," a standard more rigorous than "reasonably necessary" and less exacting than "absolutely necessary." A mistrial that could have been reasonably avoided will terminate jeopardy, but jeopardy will continue if the mistrial was unavoidable."
http://criminal.findlaw.com/crimes/criminal_rights/double-jeopardy/when-jeopardy-protection-ends(1).html
Two points.
1. The headline is wrong. He's not facing a court martial tomorrow. Tomorrow he will hear the Judge's decision about whether or not he will have to face a court martial in the future.
2. The basis of the claim of double jeopardy is an alleged "abuse of discretion" by the military judge when he declared the mistrial. I assume that means that they are charging that the judge thought Watada was it was likely that Watada would be declared innocent, and so declared a mistrial to allow Watada to be tried again (because, as several people have pointed oust, mistrials are an exception.)
So the issue which will be decided tomorrow will be the legitimacy of the mistrial, which makes sense.
It's kind of exciting. If Watada wins, and he very well might, it will change the practical meaning of an "illegal order,"
Well it's always good to send others to die but just not friends or family of the GOP. Don't look for Bush/Cheney to support this act of refusal. Bush had his Daddy get him out of serving in the Military. Cheney and Rudy got the famous 5 deferments as true girly girls to get out of serving. Now Mitt made up a lie as his Daddy got baby Mitt out of the Military and Mitt's 5 sons will never protect this country in the Military. McCain served and was a POW but he is more then willing to support torture for our troops just to get the Bush Base for votes. Don't look for many young men/women to join the US Military in the future as we see for their service we don't protect them, injured troops get no medical treatment and should they come home ok they are homeless with no jobs. That's what we in America call SUPPORT OUR TROOPS.
If i remember right and when a case becomes a mistrial, you can still trial that person but not with the same evidence and in this case is his refusal to serve. So the question is how can you charge a person for refusal to serve when you cannot use the evidence of him refusing to serve?
I am not sure about the details of this case but let me give you another example. A cop stopped a car and ordered the guy to open his trunk. There the cop found drugs and therefore the guy was charged with drug posession. He was found guilty of it but the upper courts found that this case is a mistrial as the police has no warrent to search the trunk. He could be trial for drug possession again but the evidence of the drugs cannot be reused. So how can the prosecutor charged that person for drug posession when he had no 'drugs' as evidence? The prosecutor then dropped the case.
This is a true case in Minnesota back in the mid 90s and Bob Dole made a compelling statement on TV saying "This is what happened when you put a liberal judge on the bench". But the judge was actually appointed by Reagan.
IgnoranceIsNotBliss @ 4:
While it is true that a mistrial due to a jury being deadlock is not double jeopardy (or if the defense calls for a mistrial based on a legal point of order), you can not try somebody twice if the prosecution or the Judge declares a mistrial.
The legal theory is that should the trial be going in favor of the defendant (he or she may be found not guilty), an unscrupulous prosecutor or the state may stop the trial multiple times until they get the verdict that they want (guilty as charged).
This trial was stopped over the objections of the defense. Whichever way the judge rules will determine if this is a legal proceeding or a Kangaroo Court.
Kudos to the brave people standing up against the shrub co. crime family. They all deserve our thanks and support.
IF HE IS CONVICTED, I'M SURE PRES.CALIGULA WOULD NEVER THINK OF GIVING THIS TRUE AMERICAN HERO A PARDON.WHAT A COUNTRY.
Attempting to Court Martial Watada is going to do so much damage to Bush et al.
Watatda's a brave patriot and has done the right thing, no matter how it ends up.
But I'm not really sure double jeopardy applies here. It's really a legal issue now. The wikipedia section on the 5th Amendment states that mistrials are generally the exception...
'An exception exists, however, where the prosecutor or judge has acted in bad faith. In Oregon v. Kennedy, 456 U.S. 667, (1982), the Supreme Court held that "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." '
From reading how the mistrial was declared I'm not sure I see that exception holding here. I may not know enough about the exact happenings, but from a Seattle Times article on it the mistrial was called for by the Prosecution, so if the wiki article is correct it doesn't seem to quite fit the exception.
You know, I used to think that a mistrial precluded jeopardy. But have you ever watched Law & Order? I know it's fiction, but it's based on case law. Often a critical point in the trial will occur that will end in mistrial, WITH jeopardy attached. It happens in real life to. The law can be a ass, but it can be a very flexible ass in some cases.
Why should it surprise that the same government which violates the right to a fair trial and other human rights also violates the right to protection from double jeopardy?
I know that a person can be retried after a hung jury where lots of evidence was presented. I think charges can be brought again on mistrials as long as the offending action is not repeated to the new jury. Just a guess though.
so this is why miss kitty gets to troll and post bullshit attacks all day. got it.
very disappointing.
[She posts well within the commenting policy, and if need be, gets slapped down and/or deleted, like everyone else. Just because YOU disagree with her, doesn't make her a troll. Feel free to alert the site team to any violations you perceive-Sitemonitor]
Eric Jaffa @ 1:
I'm no legal scholar, but where is the "exception" in the constitution?
I guess we'll see when the judge rules, because I cant IMAGINE a judge ruling something constitutional when it isn't.(snark)
miss_kitty @ 19:
So are you saying you're understanding of constitutional law is based on a Television show?
Lt. Ehren Watada is a Eagle Scout, former High School Quarterback, and by all acounts a devout member of the Methodist Church (even before he became famous).
He refuses to be classified as a conscience objector and refuses to serve in Iraq on legal grounds.
This is not a guy Bush should attempt to destroy.
fyi, people are found guilty or not guilty. not innocent. being found not guilty does not necessarily imply innocence, but rather (especially in civilian cases) a reasonable doubt of guilt.
i am pretty sure, as others have pointed out above, that double jeopardy applies to cases where a defendant has been found not guilty . . . they cannot be tried again (in criminal court anyway). for example, oj simpson was found not guilty in his criminal case, but was still successfully sued in civil court.
hey you all can polish your karma a little by donating $5.00 (or more) to courage to resist dot org...link is below the article.
look around their site. they do a lot of good for people who need support. our military dissenters need lots more than kind words and best wishes.
thanks miss kitty for the article and link.
SeattleJoe @ 11:
thanks for shedding some light on the situation, and I'll we rooting for the Constitution(i.e. Watada)a patriot protected by our constitution.
This war is basically a failed mess and the Army still wants to make examples of soldiers who resist or defy their duty in Iraq. They must have caught the headline that opposition to the Iraq war is at an all-time high.
Eric is right, jeopardy terminates if there is a mistrial. The key issue here is whether the military judge abused his discretion in granting a mistrial in order to avoid double jeopardy from attaching in this case.
It also depends on the particulars of the case if jeopardy attaches here. Let's not get all "unconstitutional" yet, people . . .
Someone should do some further digging.
enotes.com:
The standard is probably different for military court, too.
I think the question to ask is: Had jeopardy attached in Watada's previous court martial?
I applaud this young man's courage and integrity. You go, Lt. Watada!!!
Courtesy of Wikipedia on mistrials:
A judge may cancel a trial prior to the return of a verdict; legal parlance designates this as a mistrial.
A judge may declare a mistrial due to:
The court determining that it lacks jurisdiction over a case,
Evidence being admitted improperly,
Misconduct by a party, juror, or an outside actor, if it prevents due process,
A hung jury which cannot reach a verdict with the required degree of unanimity
Disqualification of a juror after the jury is impanelled, if no alternate juror is available and the litigants do not agree to proceed with the remaining jurors.
A declaration of a mistrial generally means that the court must hold a retrial on the same subject.
An important exception occurs in criminal cases in the United States. If the court erroneously declares a mistrial, or if prosecutorial misconduct forced the defendant into moving for a mistrial, then the US Constitution's protection against double jeopardy bars any retrial; so the prosecution must be terminated.
So this boils down to two things. One, what was the justification of the mistrial? Two, and arguably, more important, is a military court-martial the equivalent under the law as a civilian criminal trial? This will reach the supreme court regardless, and I hate to say it, but as I am aware, military proceedings are distinctly seperate from civilian courts of law.
I just read the justifications for the declaration of a mistrial, and I can see how legally, the judge declared a mistrial. By the letter of the law, he did not engage in misconduct. He said that the stipulations that the prosecution and defense agreed to amounted to Watada admitting guilt in the matter. That was his interpretation, and both the defense and prosecution wanted to proceed with the trial. This is what makes it highly unusual in this situation. It almost sounded like the judge confused himself and declared a mistrial because he wouldn't agree with the defense. You can argue it both ways, but in the end, I think the spirit of the judge was in the wrong place, but he was within the letter of the law.
The kicker will be if the civilian court has any jurisdiction over the military court system. Sadly, again, I suspect it won't.
Seems to me that the best thing for BushCo-the-Simpering-Chimp would be to let this one go.
The guy's gonna get more publicity from this and maybe get off scott free.
I don't know the details of this particular case, and neither do most of us making comments, but if there is a chance that he will be re-tried then I have to assume it's legal or 50,000 defense attys. would be begging to represent him pro bono.
I hope he gets off.
Getting NOT convicted would be interesting though.
If his jury acquitted him, wouldn't that mean that the "Legal Order" he refused to follow was, in fact, an Illegal Order?
Now that would make a great precedence because, by inference, it would mean that the "WAR" was illegal!!!
Now THAT would be cool!
What no one has mentioned is the reason why the judge in Watada's court-martial, John Head, declared a mistrial. On Wednesday, three days into the trial, the court reconvened after the lunch break. That is when Judge Head suddenly decided that Watada did not somehow understand the stipulation that he had signed, despite the fact that Head had literally gone over the stipulation line by line with Watada the week before the trial. A more likely explanation is that Head was terrified that Watada, being the next witness to take the stand after the lunch break, was going to explain under oath why he believed the Iraq War is illegal and Head was not going to permit the court to have those reasons exposed for all the world to hear, much to the embarrassment of the Bush administration. For a judge to declare a mistrial over the objections of the defense counsel is almost unheard of.
Okay I just read more on this issue.
The judge issued a mistrial at the request of the prosecution, over the objection of the defense.
The judge in the court-martial declared that the legality of the war would not be brought up in the trial, and therefore only the question of if Watada showed up for his unit deployment or not was to be decided. This is of dubious morality here, the rest is pure legal fallout.
Watada stipulated that he refused to report to deploy to Iraq with his unit, and the prosecution allowed him to stipulate that he did this because he felt that the war, and therefore the order to deploy, was illegal. Since this is the basis of Watada's defense, and since the judge ruled that the legality of the war was immaterial to the proceedings, that Watada's justification is irrelevant. The order, thanks to the narrow view of the judge, was assumed to be legal, since the legality of the overarching conflict could not be brought into question. This means that the list of stipulations that Watada agreed to essentially confessed guilt, since he admited to not reporting for deployment.
After legal back and forth, the judge threw out the list of stipulations entirely. The prosecution requested, at that point, a mistrial, since it's entire case was built around the stipulations, and wasn't prepared to provide evidence and testimony to prove the stipulations. The judge granted the mistrial request since it became impossible at that point for the prosecution to proceed with it's case.
I hate to say it, but aside from the limiting of the scope of the tribunal (ignoring the legality of the war, and assuming that the order itself was legal), the mistrial proceedings seem to be entirely legitimate. If I were the defense, I think I might have requested a mistrial as soon as the judge ruled that the legality of the war in total could not be discussed. They felt though that legality need not be proved, only Watada's sincere belief that the order was illegal had to be proved. The judge saw the case in the terms of "did he or did he not show up to deploy?" and nothing else. In that light, Watada admitted completely to guilt, and the stipulations should be thrown out, prompting the mistrial.
kulshan @ 23:
No. How silly of you to react that way. And immature. I actually read about DJ until my eyes bled, Clever Dick. It was based on that little hook thrown into a tv show.
Oh yes, and I'm not supporting his retrial flat out. I think the mistrial should be upheld, and jeopardy should expire, if nothing else than due to the extremely limited scope that the trial looked at. In the assumption of the legality of the war, the order itself was assumed not only to be legal, but to be obviously legal to any reasonable mind. It's a hell of an assumption on the government's behalf.
#35-SW
As I wrote at post #34, Watada knew what he had signed because it had been agreed upon by Judge Head. For Head to claim that Watada was in ignorance of what he signed is simply absurd. Watada's date of release was December of last year. As Amnestry International has noted, Watada should be considered a prisoner of conscience and released immediately from the military but the army will not do this because they wish to use Watada as an example of what happens to those in the military who dare to question the government.
Thank you for posting this Nicole.
This is a video of Iraq War veteran James Circello, who describes his experiences in Iraq and the process that led to his deciding to go AWOL from what he believes is an illegal and immoral war.
http://www.youtube.com/watch?v=1mkcsmfydoM
His courage to resist pg is here http://www.couragetoresist.org/x/content/view/445/1/
These Brave Men & Women are truly on point On The War on Terror.
Peace.
Erroll @ 38:
I agree, it stinks to high heaven, and for that reason alone he should be exonerated. The timing of the judicial ruling throwing out the stipulations is the sticking point. It would have been one thing, legally speaking, to throw out the stipulations before the trial began. To accept the stipulations for a week, and then reverse his decision is where the dubious morality comes into play. I don't know if, as a military judge, he has that power or not. If he does, then legally, he acted within his right.
I'm not even considering if the case should have been brought to trial or not. It probably shouldn't have, I agree, but you're absolutely right, the government wants to make an example out of Watada, and wants to stick it to him. I'm concerned at this point, with the proverbial genie out of the bottle, that he gets a fair and legal day in court. Not being an expert on military law, all I can do is read what happened and exercise some logic and what limited knowledge I have.
Erroll @ 34:
If they try him again though wouldn't he still be able to take the stand and testify? And if so, would the Judge declare another Mistrail do you think?
SW @ 35:
From my post @ 10
“A different situation is presented when a mistrial is declared over the defendant’s objection. Reprosecution will be allowed only if the mistrial resulted from “manifest necessity,” a standard more rigorous than “reasonably necessary” and less exacting than “absolutely necessary.” A mistrial that could have been reasonably avoided will terminate jeopardy, but jeopardy will continue if the mistrial was unavoidable.”
This isn't me, standing on a soapbox accusing the justice system of launching into Double Jeopardy. A court of law-a Federal Judge-is now examining whether it could be.
As I stated before-if there was no doubt the jeopardy would not attach, Judge Settle wouldn't have cracked the case file. He also gave the Military Court of Appeals time to weigh in, as they were also appealed to, but they remained silent on the issue, so he took the case under his jurisdiction. He was to have made his decision in October, but pushed the date to 9 Nov, due to the volume of material he needed to review.
Seattle Joe @ 11 "...The headline is wrong. He’s not facing a court martial tomorrow..."
I didn't write the headline. I know it's a decision as to whether or not jeopardy attaches to the mistrial Lt. Col. John Head called 7 February, 2007, over the objections of defense counsel. Watada's attorney, Eric Seitz, asked that the trial be allowed to continue. He did so because that action alone could cause jeopardy to attach. He's a clever man and represented Watada well.
C&L, Supporting Lt-Ehren-Watada
C&L, Watada court martial begins today
C&L, Mistrial declared in Watada court martial
C&L, Watada re-charged
Watada's Double Jeopardy
The Nation Jeremy Brecher & Brendan Smith
Courage to Resist.org
Watada did the right thing by not going. George Bush, President AWOL,and his henchmen should not be allowed to court martial him. What does a court martial from a corrupt justice system mean? I respect Watada for his strength and character. There are many of us who feel this way in this country that is become a ghost of its previous self.
Courage and integrity. C'mon. This guy could have resigned his commission should he wished not to go to Iraq AT ANY TIME. This is a bit of nonsense in my opinion, some guy trying to make a statement. That's fine, but he's wearing a UNIFORM. If you are a soldier and you are called, you go. You don't make up reasons for why you don't go. Is this war bullshit? yes. I will be on my 2nd deployment to Iraq at the beginning of next year. Do i wanna go? F**K NO. But I will have to. I'm not flying off to Canada. I'm not going to shoot myself in the foot. I most certainly will not try some weasel way out like this guy. When I enlisted, I swore to do the bidding of the president. Even if it is this loser Bush. I'm telling you this right now: This guy Watada IS NO PATRIOT. I wouldn't want him guarding my six in no foxhole.
Yeah. Like the Constitution specifies that soldiers who put their lives on the line for their country have fewer rights than the rest of us.
This prosecution is itself a criminal act...a crime against the Constitution. (yet another one.)
You take this, Pat Tillman, the guys who wrote the op-ed piece and ended up dying in an "accident", the troops who were thrown under the bus for following orders to torture at Gitmo.
I have an idea........DO NOT JOIN THE MILITARY!!!!!!!
Whether or not you agree with his actions that led to this trial....
What the HELL does that mean???
He volunteered to serve in the US military. Well, I disagree with that, in this day and age, but I don't automatically condemn those who do.
He matured during his service, decided the Iraq War is totally illegal and unjust, and requested to be reassigned to Afghanistan.
Well, soldiers don't get to pick their assignments, do they? It's no surprise the military has has come down upon him.
My worry is that the same folks who "support" his refusal to fight in Iraq are not so OK with his contention that he will go to Afghanistan instead.
What if his superiors had actually caved and reassigned him....as they probably now think they should have, given the headaches that have ensued...
I hear this argument ALL THE TIME against the Iraq War....it's taken so many resources away from the good Afghanistan War.
What is so good about the the Afghanistan War?
NOW, I mean.
If this guy totally wins his case tomorrow, if his superiors cave and give him what he wants, he will be in Afghanistan tomorrow...
Doing what exactly? And for whom?
As a relative of a troop who has given his life to save another soldiers, I fully support Wattada's case and he should refuse to be sent to risking his life for a lost cause.
I've supported Lt. Watada from the start, but this double jeopardy complaint is not in the spirit of his resistance.
The real issue is that he cannot get a fair trial, because the gov't will not allow the illegality of the invasion to be broached. That's the real issue.
For an officer who has continually requested deployment to Afghanistan, the only issue is not 'unwillingness to serve' -- it's refusal to serve in an illegal conflict.
If he can avoid prison, all the better. But FOR US to focus on the double jeopardy claim instead of the illegal war claim is to take a rather shabby alternative to the real issue.
eddiberto @ 44 "This guy Watada IS NO PATRIOT. I wouldn't want him guarding my six in no foxhole."
Your rank and deployment history or SHUT YOUR PIEHOLE.
cleo @ 43 "What does a court martial from a corrupt justice system mean?"
What is the evidence that the court martial is 'corrupt'?
The judge made major mistakes, and the gov't is trying to avoid facing the real issues, but a court martial is in fact due process for an officer accused of a crime. He has a defense, but if they won't allow that (as they didn't in the first go round)
Lt. Watada's effort has NEVER been about avoiding deployment. He is also not trying to avoid court martial. This is an HONORABLE officer, and he accepts court martial as a part of the service he in fact LOVES.
He is simply unwilling to join in an illegal operation from stem to stern -- as is his duty under the Nuremberg Principles.
(sorry, a distraction)
"He has a defense, but if they won’t allow that (as they didn’t in the first go round)" then he has still to make his case. From that standpoint, fighting for his right to contest the deployment is his singular purpose.
Speaking as a veteran who's opposed to this war, Watada was oath-bound and honor-bound to obey his orders and to go to Iraq.
Rules are a little different for the military, I'm afraid. You don't get to choose where you're sent to
SW @ 35 "I hate to say it, but aside from the limiting of the scope of the tribunal (ignoring the legality of the war, and assuming that the order itself was legal), the mistrial proceedings seem to be entirely legitimate."
No, the judge should certainly have realized that he was allowing the military to force Lt. Watada to enter a written plea of guilty. In which case, on to sentencing -- without a trial.
The military's case fell apart -- they tried to railroad the Lt. and failed. They've tried to intimidate him, and failed. They have tried to impugn his honor, and failed. They tried to force him into a confession of crimes HE DID NOT COMMIT -- and failed.
So far, the Lt.'s resistance has not failed. His integrity has not failed. The military has huge egg on its face, and it is hard to imagine they figured it would turn out so badly for them, or else they would have simply discharged him generally, as they have many others.
Murderers are getting off without trials because they have left the service. The moutain of warcrimes reaches the stinking heavens. Whatever happens next, the Lt. deserves the honor he has attempted to restore to the military he loves.
kudos to Watada for taking a stand against the Pinochetists
Josh @ 52:
Not under the Nuremberg Principles.
Next you will say that MPs were honor bound to waterboard at Abu Ghraib.
Though Bush would like to discard this nation's experience in Nuremberg and the equivalent process in Japan -- the nation will not allow it. Ultimately, Lt. Watada will be honored for his service as an officer in this resistance.
Josh @ 52:
Isn't he duty-bound to refuse illegal orders? That's the foundation of his case. He would follow orders, if they weren't illegal orders.
"...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's Double Jeopardy
eddiberto @ 44:
So much for reading up on his legal basis for refusal. :roll:
miss_kitty @ 57:
PS. Dude, I sincerely hope the mess is done with before you have to go back. If not, good luck and god speed.
C&L didn't do a great job here of explaining the double jeopardy issues here.
It's not as simple as "mistrials preclude double jeopardy issues," and it's not simply that Watada was tried once and can't be tried again.
Certainly, if the case had gone to the court-martial jury, and that jury could not reach a decision, the case could proceed again with a new jury. (Any time a jury is empaneled, a defendant is "in jeopardy." While the jury is out, he's still "in jeopardy." If they jury can't reach a decision, well, he's still "in jeopardy.")
Mistrials, however, might preclude retrials depending on how they happen. For instance, once a jury is empaneled, a defendant is in jeopardy. If, during the trial, the prosecution misbehaves in such a way as to warrant a mistrial, then the trial itself is over. Now, the defendant can no longer be placed in jeopardy again. That would be "double jeopardy." It's different from a jury's being unable to reach a decision.
Here, however, there are some intriguing issues. One of them, is that upon the declaration of the mistrial, the military immediately sought to try Watada again. It did this despite the fact that his lawyers had asked the courts to declare that double jeopardy rules, in this case, preclude a retrial.
THAT'S WHAT'S INSANE HERE!
Before the courts have ruled as to whether double jeopardy applies, the military is seeking to try him again anyway!
Karen @ 60:
I tried, but there are space constraints. I'm glad you commented here Karen...The military denied multiple appeals for stays based on DJ-When it looked like the highest military court would not respond in time for the second trial, Watada's team appealed to the Federal Court in Tacoma. The judge granted the stay, but allowed for a ruling from the military court, which never came.
And if I'd done a bang up job of explaining it-people still wouldn't have read it.
We'll see what Judge Settle says tomorrow.
Lt. Watada is a hero.
Brave man. A right living man.
...
eddiberto @ 45:
Don't you think Watada could be forcing the issue whereby all of you soldiers will be brought home sooner than later? No, I am not a veteran, but my husband is a former Marine, and both of us think there is no virtue in American youth being sitting ducks in Iraq.
Miss Kitty: I hate be a pain, but the headline of this story is wrong. He's not facing court martial tomorrow, he's facing the judge's decision on whether or not he'll be facing a court martial.
(Sorry about that last fragmentary post. Length limits got me, I guess.)
A retrial after a mis-trial is not double jeopardy. We don't help ourselves when we go off half-cocked. That's the domain of the wingnuts.
James H. Taylor, III @ 67:
Perhaps it would behoove you to read the entire thread before airing such a critique. Oh the irony.
Some of us have already explained the complications of double jeopardy issues. The rule is not simply "mistrials preclude double jeopardy issues."
SeattleJoe @ 66:
You aren't a pain... :) I already answered it upthread-but I think it was buried. I did not write the headline. I know he's facing a decision as to whether or not he'll face a second trial, or if he'll be spared, if the judge decides Double Jeopardy attaches to the mistrial called by Lt Col. John Head.
James H. Taylor, III @ 67:
So is not reading the post. There is a Federal Judge who is considering whether or not double jeopardy attaches to Watada's case. It's not me or C&L going off 'half-cocked' as you say. That would be you.
Well, my understanding of double jeopardy IS based on watching TV and movies. And I can't believe that no one has mentioned the most lurid and pulp fiction version of it: Someone is framed or otherwise convicted of a murder they didn't do, and the "victim" (whose body was never found) is still alive.
Since the wrongly convicted person has already been found guilty (and paid for the crime), he or she can -- upon release -- now kill the fraudulent "victim" with no fear of punishment.
Okay, it's kinda sick, but morbidly fascinating. You may carry on.
Widespread @ 70:
That was already made into a really awful movie with Ashley Judd. You'll never guess what it was called.
I'm a veteran. Far as I'm concerned, Watada is a towering hero. What a shame that it should take an act of courage to follow the laws regarding war crimes. That they are persectuing him for obeying those laws only puts his heroism in greater relief against their own miserable failings.
miss_kitty @ 62:
Sad, but true. :(
;)
Karen @ 71:
Heh. Even I knew it wasn't double jeopardy, because it wouldn't be the SAME crime. That was an annoying movie. I can't believe the shit was made. Or that I watched a smidgen of it.
The only reason I can think of that this guy would get double jeapordy protection is if the prosecution caused the mistrial on purpose, to avoid the defendant being acquitted.
But there is nothing in this article that says that...
Mistrials don't protect against being retried. In fact, that is what you are supposed to do when there is a mistrial.
Chris May @ 74:
This paper has a pretty good summation of double jeopardy as it pertains to mistrials:
Read on....
Paul @ 72:
Nothing to add here. Well said, Paul.
...
Chris May @ 74:
That's correct. The JAGs secured a written confession (in effect) BEFORE the judge ruled out Lt. Watada's defense.
They were trying to fix the trial, and they got caught doing it. That is actually a double jeopardy situation.
Testing.....somehow my posts aren't getting published....this is just a test.
Hmm...well, I was trying to link to a Georgetown Law Journal that very neatly summed up the law vis-a-vis mistrials and double jeopardy. For some reason, the internet tubes aren't letting me do it, though. Oh well. :)
miss_kitty @ 73:
:lol:
It kind of reminded of me of the time back in high school when my government teacher had the unfortunate task of explaining double jeopardy to the class. One genius' misinterpretation caused him to say, "Hey, so if I go on trial for smoking pot, and I'm found not guilty, I can smoke pot all I want!"
No, the teacher had to try to explain, double jeopardy applies to just one particular incident in time. It's not the "same crime" if you do it again.
What is interesting is this quote from the story...... "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."
When did that happen last?
Where does the UCMJ meet Civil Law?
Chris May @ 74:
You may want to send your concerns to U.S. District Court Judge Benjamin Settle, with whom you disagree. I'm sure he'll need to hear your considered opinion. :)
RET-Liberal_Squid @ 80:
When this happened last I'm not sure, and it might even be a difficult question to answer, depending on what's meant by "civilian intervention." Suffice it to say that there have always been all sorts of issues about jurisdiction over crimes -- with the military and the civilian courts arguing about when jurisdiction arises. The Supreme Court rendered one decision a few decades ago, and then reversed itself in the 90s.
Civil law? Perhaps you meant civilian law. (It's all still criminal law, not civil law.)
In any case, the easiest answer to your question would be "at the Constitution." The Constitution is the supreme law of the land. Congress created the military code, which is its Constitutional prerogative. However, if a section of military code, or an action taken under it, violates the Constitution, it's void.
Karen @ 71:
Well, let's see.... knowing Hollywood:
"Triple Jeopardy 9: Justice Kills you Dead!!" ? :)
You know the cynical part of me thinks that the Republicans love this stuff. The more honest men and women they weed out of the actual positions of power in the military, the more they can stuff the staff with like minded cronie-zombies.
Incidences like this are supposed to shock the conscience and help allow honest people inside and out of the system to reform it. But just like in the federal government... I'm not really seeing that here. Honest people get flushed out, while they are replaced with true believers.
People saying "I'm not going to do this!" didn't stop Abu Ghraib... it just helped the Bushies weed out people from zombies. Actually gave them even more power to do wrong.
swarmofkillermonkeys @ 85:
You got it! First try! Kudos!
You make a good point.
[For some reason, your posts that didn't show got stuck in the spam filter. I got them out, so your link posted-Sitemonitor]
Thanks, site monitor. :) Though, I suppose you didn't have to publish all of them. ;)
[I didn't :) ]
Yeah, wish I had any answers for that one. I'm not smart enough to quite see exactly what is broken their or a means to fix it.
Other than some sort of honest "citizen education" in grade and secondary schools. Not to mention better overall education and teaching of critical thinking. But that's still 20 years off at best.
I dunno...
the Rule of Law and the Constitution mean NOTHING to Bush and his cronies. Didn't Congress subpoena Rice? And didn't she ignore it? And what happened? NOTHING! America has ceased to be a country of law and equality.
Paul in LA @ 57:
How the hell would you know what I would say about the MPs at Gitmo and Abu Gharib? [Deleted. Personal attack-Sitemonitor]
If only the rest of them would follow this guys lead. We would be out of that hell
Coward. Leavenworth awaits.
[From the commenting policy: "...posters should identify themselves with the same moniker, so readers know their comments are coming from a single individual. If they don’t, they are subject to a banning." I thought you should be told, 3X LOSER, Joey Stalin, Hell Calling Long Distance, Jello Biafra, Usama Bin Forgotten, DRAFT AWAY, Sy Borg, Get A Pension, Stupid Git, Dr. Kildare, Alone In My Room, Ron Jeremy, Dirty Hippie Blogger, Sold Ya Soul 2 Da Devil, The Beagle and the other 8 pages x 20 comments. In other words, pick a name and stick with it. Capice? Sitemonitor]
John Samsonite @ 22:
John, I assure that is not the case, I'm sure I've snarked and sniped-just like you are doing to me here-but I don't lie about other posters-like you are lying about me, and I don't post bullshit attacks-like yours on me-all day. So i would say you've got a way to go before you 'get it.'
But by all means-alert the site monitors if you think I'm out of line.
Josh @ 90 "How the hell would you know what I would say about the MPs at Gitmo and Abu Gharib? [Deleted. Personal attack-Sitemonitor]"
I knew exactly what you would say.
As a protester, I talk with a lot of Vets and some of them tell me they 'fought for my freedom.' When I ask them when and where, they admit that they spent their enlistment in a warehouse in Mobile.
Oh the battles in those bars! The awful injuries, the syphillis shots, the painful itch! What a band of brothers you heroes were.
Besides the points already made about double jeopardy, there is one thing everyone should be aware of concerning the UCMJ (uniform code of military justice). Double Jeopardy IS allowable in criminal trials in the military. Once at a court martial, and once more in civilian courts. For example, a military member rapes someone off base. The military can then court martial and imprison that member for a number of years. Once he's done his court martial imposed time, he can then be tried again and punished again in civilian court. As far as I'm aware, THAT level of "double jeopardy" has been around since the UCMJ was written, or at least since I was in the Air Force in the 80's. I'm working off dimly recalled memory here, so if someone can cite something different, be my guest.
I sympathize with him but when he was sworn in as an officer he plead guilty in this case. Maybe if he was being ordered to do something against US or international law he'd have a case in another President's America but he didn't even show up.
You all may be interested in seeing the content of an email that was forwarded to me this afternoon. It originated with Lt. Ehren Watada's attorney and quotes Judge Settle's decision which was received a day ahead of schedule.
Read his own words here:
+++++++++++++++++++++++++++++++++++++
At approximately 3:39 p.m. today, Judge Benjamin H. Settle of the United States District Court for the Western District of Washington (sitting in Tacoma, WA) issued the attached ruling, which is a grant of a Preliminary Injunction in favor of 1Lt Ehren Watada.
In his decision, Judge Settle made the following significant points:
1. The remedy sought by Lt Watada (i.e., a writ of habeas corpus in a pretrial setting), while rare, is appropriate;
2. Lt Watada will suffer irreparable injury if relief is denied;
3. Lt Watada is likely to succeed on the merits;
4. Judge Head abused his discretion in rejecting the Stipulation of Fact;
5. Even if Judge Head did not abuse his discretion in rejecting the Stipulation of Fact, there was still a lack of "manifest necessity;"
6. Judge Head failed to adequately consider possible alternatives;
7. The balance of potential harms weighs in Lt Watada's favor; and
8. The public interest favors granting relief.
This is an enormous victory, but it is not yet over. This has not yet ripened into a permanent injunction, though the judge did indicate that we have demonstrated a likelihood of success on the merits.
The judge's order did not indicate what the next steps are, and did not give the parties a briefing schedule. He did indicate, though, that no trial proceedings could occur until his further order, or until this injunction is modified or dissolved (either by him or by a higher court).
It is reasonable to infer that the burden is now on the government to come forward and ask him to modify or dissolve the injunction. Beyond that, it is impossible to speculate on what will occur next.
My partner, Jim Lobsenz, and I are enormously gratified at the care with which Judge Settle approached this matter. While it is not yet over, we've come a long way toward achieving our goals for Lt Watada in this litigation.
Kenneth S. "Ken" Kagan
Carney Badley Spellman
+++++++++++++++++++++++++++++++
I'm not asking you to take my word for the authenticity of this email. You can read the a report on today's decision in the Seattle Times. Right here:
http://seattletimes.nwsource.com/html/nationworld/2004003059_webwatada.html
Judge Settle issues an injunction to stop Army court from trying Lt. Watada again! No court martial tomorrow!!!
Here's the news article: http://seattletimes.nwsource.com/html/nationworld/2004003059_webwatada.html
Lt. Watada's lawyers outline today's ruling by Judge Settle:
At approximately 3:39 p.m. today, Judge Benjamin H. Settle of the United States District Court for the Western District of Washington (sitting in Tacoma, WA) issued the attached ruling, which is a grant of a Preliminary Injunction in favor of 1Lt Ehren Watada.
In his decision, Judge Settle made the following significant points:
1. The remedy sought by Lt Watada (i.e., a writ of habeas corpus in a pretrial setting), while rare, is appropriate;
2. Lt Watada will suffer irreparable injury if relief is denied;
3. Lt Watada is likely to succeed on the merits;
4. Judge Head abused his discretion in rejecting the Stipulation of Fact;
5. Even if Judge Head did not abuse his discretion in rejecting the Stipulation of Fact, there was still a lack of "manifest necessity;"
6. Judge Head failed to adequately consider possible alternatives;
7. The balance of potential harms weighs in Lt Watada's favor; and
8. The public interest favors granting relief.
This is an enormous victory, but it is not yet over. This has not yet ripened into a permanent injunction, though the judge did indicate that we have demonstrated a likelihood of success on the merits.
The judge's order did not indicate what the next steps are, and did not give the parties a briefing schedule. He did indicate, though, that no trial proceedings could occur until his further order, or until this injunction is modified or dissolved (either by him or by a higher court).
It is reasonable to infer that the burden is now on the government to come forward and ask him to modify or dissolve the injunction. Beyond that, it is impossible to speculate on what will occur next.
My partner, Jim Lobsenz, and I are enormously gratified at the care with which Judge Settle approached this matter. While it is not yet over, we've come a long way toward achieving our goals for Lt Watada in this litigation.
Kenneth S. "Ken" Kagan
Carney Badley Spellman
Oops! LeeB beat me to it...
Apologies for the duplication!
Watada is essentially charged with disobeying an order. The core of his defense is that the order (or rather its context) was illegal, and soldiers are required not to obey illegal orders*. The retrial is apparently being set up to deny him the ability to bring up this defense. How in any semblance of a justice system does the legality of an order become irrelevant in a trial for disobeying that order?
* As clearly established at Nuremberg, where "I was only following orders" was no defense, because the orders were themselves illegal.
Will @ 99:
Good
Indeed God Speed Lt...a truly brave man.
Another of those evil Liberal judges legislates from the bench.
Oh silly me, this judicial advocate was appointed by President Bush.
Stash @ 96:
I guess you didn't read the post or look at the links or read any of the comments.
How do I know? I read your comment.
LeeB @ 97:
Nearly Perfect. I am totally overjoyed by this and look forward to the imposition of a permanent injunction. That'll make it perfect. Well done to everyone who worked tirelessly on the case.
Commander Ogg @ 103:
Just perfect.
This is a troubling situation for me (Being Left of Center and a 27 Year Air Force Veteran)
While I feel that the war in Iraq was/is a bad decision (to say the least) and I like people who stand up to Dubya and his ilk, I don't agree with Lt. Watada's stance. He went into the military with his eyes opened and swore an oath to do as he was told. He knew where this would take him and it was his choice to marytr himself in this way. This new trial is the only outcome acceptable in the military.
While we have a free thinking, free speech democracy - we cannot have a "do it if you want to" military. There are many other cases that those that read these posts would agree, are good causes and should not open to intrepretation by the individual military man/woman as to whether or not it's a cause worthy of their effort. This is part of what makes our republic, folks. Like it or not. Whether it's Bill/Hillary Clinton or GW Bush ::Spit:: in office, the military cannot carry on this way. They have to follow orders and trust their leadership (no matter how f-up they may appear to be) to make the right decisions and not take matters into their own hands. (This includes individual war crimes as well)
While I'm happy that Lt. Watada is making a stand; I feel bad that he is making this one. He should have never accepted a commission in the Army if he never intended to engage in military combat.
I know that there will be many that will not agree with me. I'll gladly accept desenting opinions from those who have served in the military as long as I have and understand the consequences of individual actions like Lt. Watada. After all, this is what makes this America.
Josh @ 54:
Wasn't this the argument of the members of the SS?
Support Ehren Watada and other patriots!
Paul in LA @ 51:
SSG USAR Civil Affairs. Camp Falluja, Iraq: 12/03 - 12/04. This is an area for opinions, and not for some sort of bullying action just because I have a different opinion than yours.
miss_kitty - thanks for the concern. Looks like March I'm heading back over.
#106-Ed
What you overlook in your condemnation of Watada is the fact that that he joined the army because, like many others, after the terrorist attacks of Sept.11, 2001, he did so for what he believed to be for patriotic reasons. You state that those in the military "... have to follow orders and trust their leadership..." Actually, that is exactly what those in the military should NOT be doing. In Watada's case, he committed the unpardonable crime, in your estimation, of reading and researching and, worst of all, thinking about the reasons why this country went to war against Iraq. You would do well to read and study the speech that Watada gave to myself and other veterans at the Veterans for Peace convention last summer in Seattle when he said:
"The American soldier must rise above the socialization that tells them authority should always be obeyed without question. Rank should be respected but never blindly followed. Awareness of the history of atrocities and destruction committed in the name of America- either through direct military intervention or by proxy war- is crucial. They must realize that this is a war not out of self-defense but by choice, for profit and imperialistic domination. WMD, ties to Al Qaeda, and ties to 9/11 never existed and never will. The soldier must know that our narrowly and questionably elected officials intentionally manipulated the evidence presented to Congress, the public, and the world to make the case for war. They must know that neither Congress nor this administration has the authority to violate the prohibition against pre-emptive war- an American law that still stands today. This same administration uses us for rampant violations of time-tested laws banning torture and degradation of prisoners of law. Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and rules of engagement of desperate field commanders will ultimately force them to be party to war crimes. they must know some of these facts, if not all, in order to act."
The lieutenant recalled the words of a literary icon when he said that "Mark Twain once remarked, 'Each man must for himself alone decide what is right and what is wrong, which course is patriotic and which isn't. You cannot shirk this and be a man. To decide against your conviction is to be an unqualified and inexcusable traitor, both to yourself and to your country...' by this, each and every American soldier, marine, airman, and sailor is responsible for their choices and theior actions. The freedom to choose is only one that we can deny ourselves."
Watada went on to remind us that "The oath we take swears allegiance not to one man but to a document of principles and laws designed to protect the people. Enlisting in the military does not relinquish one's right to seek the truth- neither does it excuse one from rational thought nor the ability to distinguish between right and wrong. 'I was only following orders' is never an excuse."
There is not one superfluous word in that excerpt from Watada's speech. Pay particular attention, Ed, to the last sentence- "... neither does it excuse one from rational thought nor the ability to distinguish between right and wrong. 'I was only following orders' is never an excuse." The judges at Nuremberg were not swayed by the Germans' claim that they were only following orders, since those same Germans were subsequently hanged for their war crimes. Despite your contention, Lt. Ehren Watada recognizes that he is not a drone; on the contrary, he realizes that he has a brain and the ability and the right to question the orders that that he has been given. The UCMJ says that soldiers have not only a right but a duty and an obligation not to obey what they consider to be illegal orders while the U.S. Army Field Army Manual 27-10 Section II, paragraphs 498 through 504 lists why a soldier who commits war crimes is liable to be punished. I also strongly suggest that you rent or buy the powerful documentary Sir! No Sir!, which chronicled the GI Movement that took place during the Vietnam conflict [and which, I am sure, heavily influenced Watada's decision to speak out].
To claim that those in the military should simply blindly follow every order that they are given, without weighing the reasons why, is incredibly absurd. If soldiers were ordered to march into the sea on orders from their superiors to prove their manhood, should they do so without question? "Into the valley of death" rode the 160,000. I would hope the answer to that question would be a resounding no.
Hate to be the one to rain on the parade, but a mistrial only means that the jury could not come to a decision. Prosecutors ALWAYS have the option of re-trying the case if there is a mistrial. While I respect this guys moral stand that doesn't mean that by refusing to go he's not basically deserting. You only have the right to refuse and order when it breaks the law/ Geneva conventions.
This is actually kind of a non story and I'm a little disappointed you guys would even put this up here as if it's some flagrant violation of the constitution when it's not. In this day and age don't we have enough violations of our rights without you guys pulling a right wing fear mongering tactic on something that's perfectly legal/well within the constitution?
Train @ 111:
Sir, you do not appear to understand the facts of this case. There was no Jury involved. The Judge in the case did not like how the case was going and so he declared a mistrial over the strenuous objections of the defense. If this is allowed to stand then whenever a defendant appears to be winning a case - a mistrial could be declared - giving the prosecutor another stab at the case. This is exactly what "double jeopardy" is intended to avoid.
#112-Damien Duff
Well said.
It's my understanding that once you sign your name to a military contract, you lose your constitutional rights. The contract supersedes your right as citizen. I'm all for Watada. I think he's one the biggest bad asses there is and I hope he stays free, but there is legal precedent (see Peter Irons, People's History of the Supreme Court) that allows Watada to be tried again.
eddiberto @ 109 "SSG USAR Civil Affairs. Camp Falluja, Iraq: 12/03 - 12/04. This is an area for opinions, and not for some sort of bullying action just because I have a different opinion than yours."
Camp Fallujah, huh. Setting up that camp was a major warcrime.
A staff sergeant who ignores warcrimes and is proud of his actions in an illegal invasion, after numerous pogroms on civilians in Fallujah == not exactly the right stuff.
Of course, that's just my opinion. The screaming women and children burned alive in the bombing of their houses, and the fiery deaths of the male residents with illegal white phosporus, and the giving of no quarter, all of those are major warcrimes.
Lt. Watada is a noble person. You? You don't even know which end of your foxhole is up.
LeftistChicago @ 114 "It's my understanding that once you sign your name to a military contract, you lose your constitutional rights."
That is fundamentally untrue. The Uniform Code of Military Justice provides many of the civilian rights in military form.
"there is legal precedent (see Peter Irons, People's History of the Supreme Court) that allows Watada to be tried again."
The court did not agree with you.
miss_kitty @ 10:
Um, perhaps you should read up yourself. The fact that evidence has been presented is not the issue that determines whether or not a defendant can be re-tried after a mistrial - incidentally, something not even addressed in the citation listed. If that were the case, almost no mistrials would result in re-trial, since the vast majority of them occur after the trial has begun. And contrary to what others have suggested, it also doesn't automatically become double jeopardy if the judge declares a mistrial (only the judge can do it), or if the defense objects to the mistrial. And there's nothing that says if there's a mistrial the same evidence can't be used at a re-trial.
There are actually very situations where a legal prohibition against a retrial would exist. What's happening in this case is that the federal court has been asked to determine whether a retrial would be legal. Personally, I wouldn't put money on the idea of a mistrial being prohibited - it's an extremely difficult standard to reach.
miss_kitty @ 58:
Unfortunately, the comparison to the Nuremburg trials isn't on point. As I understand it, he refused to deploy with his unit to Iraq. Regardless of what he feels about the war in general, I don't think anyone can say that simply the act of going to Iraq is illegal.
No one tried at Nuremburg was found guilty of war crimes based on nothing more than going where their unit was sent. For that matter, no Axis troops were ever found guilty of war crimes based simply on the fact that they fought in the war. The people that were found guilty had committed specific violations - for the most part, the murder of civilians.
If Watada were in Iraq, ordered to torture prisoners of war, and refused, then the "illegal orders" would be a defense. Simply being told to go to the war zone and refusing? No, not a valid defense.
I've posted the 33 page Order (PDF) for those of you who might be interested in the Judge's actual thoughts on the subject.
http://tinyurl.com/2e5nhs
Angie @ 118:
Thanks. I typed that first part in, then went looking for the source for the entire thing, found the exception that applied in this case in Findlaw I copied and pasted (mistrial declared over defence objections), then forgot to take out my first thought. My bad. :( It happens. mistakes I mean. I'll ask a Sitemonitor to edit it out. I forgot about it.
I take it you do not disagree with the mention of mistrial declared over the objection of the defence.
And well before you posted this: "Personally, I wouldn't put money on the idea of a mistrial being prohibited - it's an extremely difficult standard to reach," this was posted on the thread LeeB @ 97
"At approximately 3:39 p.m. today, Judge Benjamin H. Settle of the United States District Court for the Western District of Washington (sitting in Tacoma, WA) issued the attached ruling, which is a grant of a Preliminary Injunction in favor of 1Lt Ehren Watada.
In his decision, Judge Settle made the following significant points:
1. The remedy sought by Lt Watada (i.e., a writ of habeas corpus in a pretrial setting), while rare, is appropriate;
2. Lt Watada will suffer irreparable injury if relief is denied;
3. Lt Watada is likely to succeed on the merits;
4. Judge Head abused his discretion in rejecting the Stipulation of Fact;
5. Even if Judge Head did not abuse his discretion in rejecting the Stipulation of Fact, there was still a lack of “manifest necessity;”
6. Judge Head failed to adequately consider possible alternatives;
7. The balance of potential harms weighs in Lt Watada’s favor; and
8. The public interest favors granting relief.
This is an enormous victory, but it is not yet over. This has not yet ripened into a permanent injunction, though the judge did indicate that we have demonstrated a likelihood of success on the merits.
The judge’s order did not indicate what the next steps are, and did not give the parties a briefing schedule. He did indicate, though, that no trial proceedings could occur until his further order, or until this injunction is modified or dissolved (either by him or by a higher court).
It is reasonable to infer that the burden is now on the government to come forward and ask him to modify or dissolve the injunction. Beyond that, it is impossible to speculate on what will occur next.
My partner, Jim Lobsenz, and I are enormously gratified at the care with which Judge Settle approached this matter. While it is not yet over, we’ve come a long way toward achieving our goals for Lt Watada in this litigation.
Kenneth S. “Ken” Kagan
Carney Badley Spellman "
I realise it's 'Preliminary' and not 'Permanent' but it is a start.
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