Courage to Resist. June 5, 2007 Update
Nearly one year after Army Lt. Ehren Watada very publicly announced that he would be the first commissioned officer of the U.S. military to refuse to deploy to Iraq on the grounds that the war there is illegal under U.S. and international law, the U.S. Army court of appeals has issued a partial stay to consider arguments that a second court-martial would constitute double jeopardy. Regardless of the recent ruling, a pretrial hearing is schedule for July 6 at Fort Lewis, Washington. The trial is schedule for July 23, but may change. “Read more…” for the legal update from Lt. Watada’s attorney Kenneth Kagan.
Lt. Watada’s first court-martial ended in a mistrial in February when military Judge Lieutenant Colonel John Head ended the trial over the objections of both parties. “The court gave no indication when it would review lawyers’ arguments,” reported Melanthia Mitchell for the Associated Press. Up until the stay was issued, the Army had intended to attempt a retrial beginning July 23. It is still possible that the military appeals court may rule in favor of the Army in time for the Army to still attempt a July 23 trial. However, defense attorneys anticipate this possibility and are readying the double jeopardy arguments for civilian court of appeals as the next step if needed.
The Seattle Times reported that according to Lt. Watada’s civilian attorney James Lobsenz, “Once the briefs are filed, the appeals court could: dissolve the stay and allow the case to proceed; hear oral arguments and then issue a ruling; or issue a ruling based on a review of the briefs.”
Though an Army spokesman at Fort Lewis, Washington has publicly discounted that possibility, it is anticipated that a federal court of appeals would hear this very strong case against the prohibition against double jeopardy as clearly laid out by the constitution. The stakes are high for the Army. Although they probably are not eager for another round of mass protests at the gates of Fort Lewis, if the courts do end up ruling against the Army – as the constitution of the United States would dictate – Lt. Watada would be promoted to captain and granted an honorable discharge.
In late April, the central committee of the Washington State Democratic Party overwhelmingly passed, by a show of hands, a resolution “support[ing] and commend[ing] Lt. Ehren Watada for his courage, moral leadership, and commitment to duty demonstrated by his act of resistance to the continued costly, destructive, and immoral U.S. military occupation of Iraq.”
Lt. Watada continues to report for duty at Fort Lewis, Washington. Although his original term of active duty service expired a few months ago, he will remain active duty until his current “legal hold” is resolved. “Even in the off-chance that they succeed in re-trying me, public opposition to this war (including the military) grows daily.”
Speaking of fellow GI resisters in a recent letter to supporters, Lt. Watada noted, “These troops have taken the road less traveled. Even though it is an arduous, difficult, and lonely path — it is one that they are entitled to follow. Please help spread word of their plight. Keep the flame of hope alive.”
Thank you to Mark Jensen of United for Peace of Pierce County, Washington for significant contributions to this update.
From attorney Kenneth Kagan of Carney, Badley, and Spellman
Representing Army Lt. Ehren Watada
First, on Thursday afternoon (May 31st), late in the day, Judge John M. Head granted the defense motion to continue the pretrial motions hearing from June 5 to July 6.
Second, the Army Court of Criminal Appeals (a.k.a. “ACCA,” located in Arlington, VA) has taken the following actions:
1. After we filed our request for a Stay of Proceedings and for a dismissal of all charges due to a violation of Lt. Watada’s right to be free from Double Jeopardy (on May 15th), ACCA issued an Order on May 18th that partially stayed the proceedings, meaning that while the pre-trial litigation of motions could go on without interruption, the trial was ordered stayed until ACCA decides the case;
2. The May 18th Order also directed the government to file its response to our dismissal motion within 10 days of the Order, or by May 29th (which it did);
3. We then moved for oral argument, and for an extension of time in which to file our reply to the government’s response (which was due on June 5th). The government opposed both, and we responded to their opposition;
4. On Friday (June 1st), ACCA granted our request for an extension of time to file our reply from June 5th to June 15th. They have not yet ruled on our request for oral argument.
Thus, the next court appearance at Fort Lewis is the pretrial motions hearing on July 6th.
We do not know yet whether we will be in Arlington, VA to argue the double jeopardy issue before ACCA.
Trial at Fort Lewis is still scheduled for July 23rd. That could change if:
1. ACCA has not yet ruled by that date;
2. ACCA rules in our favor (in which case I am certain the government would appeal);
3. ACCA rules against us and we appeal to the higher court above ACCA (the Court of Appeals for the Armed Forces, a.k.a. “CAAF”) and CAAF grants our request for a stay while they decide the case.