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Originally published November 9, 2007 at 12:00 AM | Page modified November 9, 2007 at 2:04 AM

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Watada court-martial now less likely?

A U.S. District Court judge on Thursday barred a second court-martial of 1st Lt. Ehren Watada while the Army officer pursues his claim...

Seattle Times staff reporter

A U.S. District Court judge on Thursday barred a second court-martial of 1st Lt. Ehren Watada while the Army officer pursues his claim that it would violate his constitutional rights. It was a legal victory for Watada, the first Army officer to face prison for refusing to deploy to Iraq.

In issuing a preliminary injunction, Judge Benjamin Settle wrote "it is likely" that Watada will succeed in his claims that a second court-martial would violate constitutional protections against being tried twice for the same crimes.

The injunction marks a rare move by a civilian court to intervene in military justice.

In 2006, Watada gained international attention when he publicly denounced the Iraq war as an illegal occupation, then refused to deploy with his Fort Lewis Stryker Brigade that June.

Watada's court-martial in February ended in a mistrial, and his attorneys have claimed that Fifth Amendment constitutional protections apply when a trial is under way, and then is halted by a judge over the objections of a defendant. Watada had asked to complete his first court-martial trial.

Wrote Settle in his decision: "The same Fifth Amendment protections are in place for military service members as are afforded to civilians ... . To hold otherwise would ignore the many sacrifices that American soldiers have made throughout history to protect these sacred rights."

Army officials still hope to have Watada face a second court-martial trial that could put him in prison for up to six years for conduct unbecoming an officer and missing a troop movement to Iraq. In a statement, they said they will file briefs in U.S. District Court to try to prevent the injunction from becoming permanent.

"We look forward to the opportunity ... to further explain to the District Court judge the full extent of the protections and safeguards that are afforded to a military accused," the statement said.

The first court-martial fell apart over a pretrial agreement that Army Judge 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 that was a virtual admission of guilt and decided he could no longer accept the agreement. He then declared a mistrial.

Defense attorneys argued there could be no second trial without a breach of Watada's constitutional protections, but two military appeals courts rejected those arguments.

In a last ditch move to prevent a second court-martial trial in October, Watada's attorneys turned to the U.S. District Court in Tacoma.

In his 33 page decision, Settle undertakes a harsh review of the Army's performance in the first court-martial. Settle found that the Army judge "likely abused his discretion" in rejecting the stipulation.

Watada's attorneys hope that Settle eventually will opt to issue a permanent injunction, which would prevent any retrial of Watada unless the Army was able to overturn the decision on appeal. "This is an enormous victory, but it is not yet over," said Kenneth Kagan, a counsel for Watada.

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

Copyright © 2007 The Seattle Times Company

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