From the Japanese American Nichi Bei Times, Feb. 16:

On Feb. 7, the court martial of Ehren Watada, the Sansei army lieutenant from Hawai'i who refused deployment to Iraq to participate in what he considers an illegal war of aggression, ended in a mistrial. Watada, 28, may find himself back in court, however, for a retrial next month.

The final day of the court martial saw a disagreement over the significance of a Jan. 28 compromise between the defense and prosecution. In that arrangement, the Army agreed to drop two of the four misconduct charges in exchange for Watada’s admission that he made all the statements in question, included in the two remaining misconduct charges.

By signing the agreement, Watada confirmed that he had refused to deploy with his unit to Iraq and had made public statements against the war.

The prosecution felt that, by signing, Watada had implicitly agreed that he had a duty to obey the order to deploy.

When Judge Lt. Col. John Head asked Watada if this was also his understanding, the young lieutenant replied that he intended to admit that he had not deployed to Iraq, but not that he had a duty to go. According to the Rafu Shimpo, the judge then told the prosecution, “You believe that it is a confessional stipulated fact in every element, but the defense doesn’t believe that.”

He went on to say that the stipulation amounted to an admission of guilt and contradicted Watada’s “not guilty” plea, indicating he was uncertain whether or not he would accept the document.

The prosecution then requested a mistrial, saying that much of their case was laid out in that agreement.

“The problem appears to be that the Army wanted to argue that Ehren had implicitly stipulated he had a duty to deploy to Iraq once he received his orders,” Robert Rusky, an attorney and community advocate, explains. “The stipulation was inadequate, and didn’t avoid the real issue in the case, the legality of the Iraq invasion and occupation itself.”

The judge granted the mistrial despite protest from Watada’s civilian attorney Eric Seitz.

Rusky feels that the mistrial decision is the result of Judge Head’s pretrial ruling that the legality of the war could not be debated during the court martial

“This mess shows that the real issue can’t be avoided,” Rusky continued. “How can the Army be allowed to argue Ehren had a duty to comply with the deployment order, which necessarily assumes it was a lawful order, while denying Ehren the right to contest that it was a lawful order? (The ruling) inherently and clearly frames the issue I think we need to emphasize: the legality of the Iraq invasion that the deployment order was part of.”

A retrial is scheduled for March 19, but Watada’s attorney does not believe it will come to pass.

“It’s my belief that there are going to be serious problems re-instating this case,’’ Seitz said, noting that the judge had approved the stipulation after going over it with Watada in detail on the first day of the court martial.

Seitz also stated that he felt the charges must be dismissed, as Watada neither caused nor consented to the mistrial. If the judge were to proceed with the retrial, the attorney said, it would violate the constitutional ban on double jeopardy — being tried twice for the same crime.

However, Eugene Fidell, president of the National Institute of Military Justice, told the San Francisco Chronicle that a court reviewing a judge’s decision will allow the charges to be reinstated unless they consider the decision to be a “abuse of discretion.”

Fidell claims that proving an abuse of discretion is very difficult.

Seitz said the judge could have delayed the trial until the disagreement was cleared up and maintains his belief that the case will not be retried.

See Lt. Watada's support website.

See our last posts on Iraq and war resisters.