More On Ehren Watada

An amazing thing happened in a courtroom at Fort Lewis, Washington on Wednesday. The U.S. Army was in the third day of what to all appearances was a kangaroo court martial of Lt. Ehren Watada, over his refusal to deploy for what he believes to be an illegal war in Iraq. (Noted one courtroom observer: “I had images of robe-clad kangaroos hopping through my head…”) The judge, Lt. Col. John Head, had seemingly done his best in the trial’s first two days to ensure conviction, while Watada had steadfastly maintained his belief that he had a duty not to follow an illegal order to deploy to Iraq.

Then, suddenly, the Army blinked, and there was a mistrial. And due to double jeopardy issues, the Army may be unable to retry Watada, or to give him anything as punishment beyond a dishonorable discharge.

Essentially, Head coerced the mistrial, ruling that Watada “did not understand” a pre-trial stipulation, prepared by the Army and signed by Lt. Watada last week, which dropped two additional charges in exchange for Watada acknowledging, among other things, that he willfully refused to deploy. Head had already ruled that Watada could not use his reason for refusal -– the illegality of the Iraq conflict -– as a defense, and so Head had excluded all of the defense team’s witnesses to that effect. To the judge, this then meant Watada was acknowledging guilt in the pre-trial stipulation. But when the Watada team successfully motioned to include a jury instruction that Watada be found innocent if he “reasonably believed” that what he was doing was legal, after prosecution witnesses had already testified to that effect, the Army’s case fell apart. Head, in his haste to control the damage, wound up declaring a mistrial over Watada’s objection.

Head tentatively set a retrial date in mid-March. But a judge or prosecution cannot simply abandon a trial in mid-proceeding over the defense’s objection because it doesn’t like the way a trial is going. That’s what double jeopardy is about, and Watada’s attorney has already said he will fight any effort to retry the lieutenant. That’s why, Wednesday night, Army spin doctors were doing their best to express satisfaction with the bizarre outcome by noting how it shows the fairness of the military justice system –- rather than by reiterating the Army’s belief that Watada acted illegally.