Watada won't be retried on 3 of 5 counts

Citing the constitutional protections against being tried twice for the same crime, a federal judge 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 two counts. Convictions on those two counts could result in two years in prison.

The ruling keeps Watada, who has been assigned a desk job at Fort Lewis since his refusal to deploy 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.

An Army spokesman said that Fort Lewis commander Lt. Gen. Charles Jacoby had not yet been able to review the federal court decision. "Once that review is complete, he will be able to make a decision on the way forward with this case," said J.C. Matthews, an Army public-affairs officer.

Watada is the first Army officer to face court-martial for refusing to serve in Iraq, and his case has drawn international attention as he allied himself with peace groups and repeatedly attacked the Bush administration's conduct of the war.

"Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and the rules of engagement of desperate field commanders will ultimately force them to be party to war crime," Watada said in an Aug. 1, 2006, speech to the Veterans for Peace in Seattle.

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

The court-martial fell apart over a pretrial agreement that the Army judge, Lt. Col John Head, rejected deep into the trial. In the agreement, both sides conceded that Watada had missed his deployment.

Watada said it was not a guilty plea, since he believed the war was illegal and he was thus not compelled to fight. But Head thought the plea was a virtual admission of guilt, deciding he could no longer accept the agreement and declaring a mistrial.

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 the jury could have decided whether the agreement amounted to an admission of guilt and that the Army judge did not "exercise sound discretion" in ruling a mistrial.

"The record does not reflect that there was a manifest necessity for the declaration of a mistrial," Settle wrote.

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 the Army would dismiss the remaining two charges. If that doesn't happen, Watada could return to federal court and try to get the charges blocked.

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. In trying him for conduct unbecoming an officer, prosecutors argued that the Army has limits on free speech and that Watada violated those limits.

Watada serves with the 3rd Brigade, 2nd Infantry Division, which was involved in tough fighting in 2006 and 2007.

In an interview in 2006, Watada said he had hoped to avoid a military tribunal. His military superiors offered him a role in Iraq where he would not have to bear arms, but he said no because the job would still be in support of the war effort. He had hoped to serve alternative duty in Afghanistan, but his request was turned down.

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