The double jeopardy clause of the US Constitution ensures that no American can be tried twice for the same offense. But at a time when our civil liberties are rapidly eroding, a drama is unfolding in Washington State over whether that constitutional protection applies to a US soldier.
After his February court-martial ended in a mistrial, Lt. Ehren Watada, the first commissioned officer to refuse to serve in Iraq, seemed certain to face a second court-martial on October 9 at Fort Lewis, an Army base near Tacoma. Three military courts had rejected Watada’s claim of double jeopardy, finding no abuse of discretion by the military judge in declaring a mistrial. But in an unusual civilian intervention in a military legal process, US District Court Judge Benjamin Settle issued a last-minute stay October 5 in Tacoma, temporarily blocking the trial.
Settle will hear Watada’s double jeopardy claim October 19. Nationwide Iraq Moratorium protests are scheduled for that day, many of which will feature Watada’s case and his stand against the war.
Watada has consistently maintained that the Iraq War is illegal under international law and the US Constitution, and that to participate in it would make him guilty of a war crime. At the video press conference on June 7, 2006, in which he first announced his refusal to go to Iraq, he explained, “It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong but a horrible breach of American law.”
Watada was tried in a military court in February for failing to deploy and conduct unbecoming an officer for his statements opposing the war. After the prosecution had completed its case, the military judge, Lt. Col. John Head, intervened, declared a mistrial and ordered Watada to be retried. [See our report on that trial here.]
The Fifth Amendment to the Constitution states that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.” As the Supreme Court explained in a seminal 1978 double jeopardy case, United States v. Scott, “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence.”
Like the erosion of the right to habeas corpus, the denial of the protection against double jeopardy represents one more Bush-era encroachment of the all-powerful state on basic human rights and the rule of law.
While the legal arguments about double jeopardy are quite complicated, Watada’s lawyers are convinced their arguments are strong. They wrote in their emergency motion, “This is a remarkably clear case of an egregious violation of the double-jeopardy clause.” Judge Settle’s opinion states, “The Court has not been presented any evidence showing that Petitioner’s double jeopardy claim lacks merit. On the contrary, the record indicates that Petitioner’s double jeopardy claim is meritorious.”