Military still trying Watada in spite of Double Jeopardy

[babylonsister]

Watada's Double Jeopardy

Jeremy Brecher & Brendan 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.

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.

more...

http://www.thenation.com/doc/20071029/brecher_smith

[AuntPatsy]

1. I could say I am stunned but I am not, what I am stunned about is that

we are not protesting in the streets by the thousands on a daily basis until they realize that we have had enough and are just not going to take it anymore.

I wonder, will the next one be that pardons are no longer long term?

[HereSince1628]

2. Mistrial doesn't always mean no retrial. The key is usually juducial or proscutorial misconduct

Does anyone know if that is true under Cheney's Regency?

[sicksicksick_N_tired]

3. Does "unlawful order" EVER apply? eom

[Fredda Weinberg]

8. Yes and it's a painful process. Supposed to be, I'm afraid.

But the singularity works against the defendent in this case. Israeli officers who tried a similar demonstration were protected by their numbers.

[sicksicksick_N_tired]

10. Numbers?

He's not the only one who has refused to return based upon the illegal war. Perhaps, the issue of singularity is intentionally imposed upon one soldier at a time to prevent protection by numbers.

[Fredda Weinberg]

11. Whatever our sympathies, the headline is misleading at best n/t

[sicksicksick_N_tired]

12. I can't disagree with you, there. This isn't really a 'double-jeopardy' issue. nm

[eppur_se_muova]

4. Does double jeopardy apply to impeachment? nt

[0xDEADBEEF]

5. The Problem Here Isn't Double-Jeopardy

A new trial after a mistrial isn't double-jeopardy. (A retrial after an acquittal would be.) A mistrial is the same as saying that the trial hasn't happened yet.

My whole complaint about this case is the fact that Lt. Watada isn't even allowed to use the legality of the order in his defense. If our soldiers are required by law to disobey illegal orders, they should have the absolute right to use the legality of an order in their defense.

"Private, get in there and peel those potatoes!"

"No sir, it's a potato rights violation for me to peel those potatoes."

The private is charged with disobeying orders.
He defends himself by claiming that the order was unlawful.
The court-martial deliberates whether the order was, in fact, lawful, and the Private is either acquitted, or faces the consequences for disobeying the order.


Lt. Watada isn't even allowed to claim that his orders to deploy to Iraq were illegal. The only deliberation in his trial will be, did he, or did he not, deploy to Iraq as ordered. The Army, and the Bush administration, shield themselves from any deliberation of the legality of Operation Iraqi Liberation.

[sicksicksick_N_tired]

6. O.I.L.

Welcome to DU, 0xDEADBEEF! :hi:

[Fredda Weinberg]

7. The lawyers are playing a legal game w/no merit

They can't prevail without a valid legal argument and this dog won't hunt. Without substatial objections during the original hearing, they face a nearly insurmountable hurdle on appeal.

I understand the sympathy for the defendant and wish him well on his motion based on his incompetence to waive his rights.

[Tierra_y_Libertad]

9. Military justice = "Lead the guilty party in for a fair trial".