Military barred from retrying Watada on 3 of 5 court-martial charges

Citing the constitutional protections against being tried twice for the same crime, a federal judge on Tuesday ruled that 1st Lt. Ehren Watada cannot face a second court martial on three of five counts resulting from his high-profile 2006 refusal to deploy to Iraq with a Fort Lewis brigade.

The ruling by Judge Benjamin Settle, however, leaves open the possibility of a second prosecution on two other counts involving conduct unbecoming an officer.

In the ruling, Settle abstained from ruling on the constitutionality of those charges, and said it was up to a military court to consider "if constitutional defects" would be present in a second court-martial on those counts."

The ruling keeps Watada, who has been assigned a desk job at Fort Lewis since his refusal to deploy back to Iraq with his combat brigade, in a kind of legal limbo.

Settle barred the military from retrying Watada on charges of missing his redeployment to Iraq, taking part in a news conference and participating in a Veterans for Peace national convention.

But the court did not rule out the possibility that the Army, after considering legal issues, could retry Watada on two counts of conduct unbecoming an officer resulting from his media interviews.

Watada's first court martial, in February 2007, ended in a mistrial, and was halted over the objections of the defendant.

Watada's attorneys then claimed that a retrial would amount to "double jeopardy," the constitutional right to not be tried twice on the same charges. In his Tuesday ruling, Settle said that an Army judge "did not exercise sound discretion" in ruling a mistrial.

As a result, the Army was barred by the constitution from retrying Watada on three of the five counts.

Watada's attorney, James Lobsenz, said that he was pleased with the federal court's unusual decision to interfere in the Army court-martial process to protect his client's constitutional rights.

"It's very important and not often done," he said.

Lobsenz said he was hopeful that the Army would dismiss the remaining two charges. If that didn't happen, Watada could return to federal court once again and try to get the charges blocked.

An Army spokesman said it was still reviewing the court's decision, and had yet to prepare a comment.

The Army had sought a second court-martial trial on the five counts against Watada, which could have carried a sentence of up to six years in prison.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com