Watada can be tried again, judge rules

FORT LEWIS — Trying 1st Lt. Ehren Watada again for his refusal to deploy to Iraq won't violate his constitutional right not to be prosecuted twice for the same crime, an Army judge ruled Friday.

Watada's new lawyers, Kenneth Kagan and James Lobsenz, immediately filed notice they will appeal that double-jeopardy ruling to the Army Court of Criminal Appeals in Arlington, Va.

Watada is charged with missing his unit's deployment in June 2006 and with conduct unbecoming an officer for comments he made about President Bush and the Iraq war. If convicted, he could be sentenced to six years in prison and be dishonorably discharged.

The lieutenant contends that the war is illegal. His first trial ended in a mistrial.

The military judge, Lt. Col. John Head, presided over the first trial in February and ended it after questioning whether Watada understood a pretrial agreement he had signed. Head also ruled against Watada's defense team when they contended his decision to declare a mistrial in the first court-martial was wrong.

The developments are likely to delay the start of the second trial, which had been scheduled to begin July 23.

Watada, who is based at Fort Lewis, continues to perform administrative duties.

Kagan argued Friday that Head should step away from the case because the judge has created the impression that his mind is made up on some issues. The lawyer noted an e-mail that Head's supervisor sent the judge in February, indicating she believed the mistrial did not create double-jeopardy issues and that a second court-martial could proceed.

Head denied he has any preconceived notions and refused to disqualify himself from the case.

Lobsenz told the judge he erred in the first trial by not exploring alternatives to calling off the trial midway. Head ruled against Watada on that issue.

He is expected to give a written decision early next week. The judge also is expected to rule on admissibility of evidence, including whether Watada may call witnesses to testify about the legality of the war.