CASE CRUMBLES AGAINST OFFICER WHO REFUSED IRAQ DEPLOYMENT

by Aaron Glantz

(IPS) -- First Lt. Ehren Watada, the first commissioned officer to refuse deployment to Iraq, won what his backers are calling a "huge victory" in court Thursday.

U.S. District Court Judge Benjamin Settle ruled the military cannot put Watada on trial a second time unless it can prove such a trial would not violate the U.S. Constitution's prohibition against "double jeopardy."

In February, Lt. Watada's first court martial ended in a mistrial just before he was to take the stand in his own defense. Many observers believe the judge, Lt. Col. John Head, ordered a mistrial in that case because he was worried that Lt. Watada's testimony would lead to him being found not guilty of "missing [troops] movement" and "conduct unbecoming of an officer and a gentleman."

Immediately before a mistrial was declared, Watada had said: "Your Honor, I have always believed that I have a legal and moral defense. I realise that the government can make arguments and you can make rulings contrary to that, but that does not negate my belief that I have a defense."

"To me," Watada told the court, leading soldiers into battle in Iraq "means to participate in a war that I believe to be illegal."

Watada had hoped to make that argument under the so-called Nuremberg Principals which arose from trials of Nazi war criminals after World War II.

The fourth of the Nuremberg Principles says that superior orders are not a defense to the commission of an illegal act, meaning soldiers who commit a war crime because they were "just following orders" are just as culpable as their superiors.

Over the last nine months, Watada has continued in his daily duties at Fort Lewis, Washington while his lawyers and lawyers for the Army have been in and out of federal court.

The Army has been trying to launch a second prosecution, with Watada's attorneys arguing such a trial would violate the 5th Amendment, which prohibits citizens from being tried twice for the same crime.

In his ruling Thursday, Judge Settle found the Army judge "likely abused his discretion" in the first court-martial.

"The same Fifth Amendment protections are in place for military service members as are afforded to civilians," he wrote. "To hold otherwise would ignore the many sacrifices that American soldiers have made throughout history to protect those sacred rights."

Judge Settle's ruling does not provide a complete victory for Watada, however. The injunction only temporarily blocks Army prosecutors from proceeding.

In a statement released Thursday, the Army Office of the Staff Judge Advocate indicated it was not giving up and said the military plans to file additional briefs on the double jeopardy issues.

"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. "We believe that this additional information will be helpful as the judge prepares to issues his final ruling in the case."

Watada's supporters expressed surprise that the military continues its legal crusade. David Mitchell, a lawyer who served time in prison for refusing to fight in the Vietnam War, noted that Lt. Watada has already completed his term of service in the military and could now simply be discharged.

"The longer the military continues this trial, the more publicity Lt. Watada gets," Mitchell told IPS, "[and] the more information is out there for the public that there are people in the military who challenge the legality and morality of the war."

Yet despite Watada's apparent victory, Mitchell is disappointed that other officers have not followed in the lieutenant's footsteps. Nearly two years after he publicly refused his deployment, Lt. Watada remains the only commissioned officer to refuse to serve.

"The war is incredibly unpopular," Mitchell said, "but people are frustrated because they don't think they can do anything about it. You see it in the fact that we don't really have large demonstrations and you see it in the fact that the amount of military resistance is a lot lower than it was during the Vietnam War."

Nonetheless, antiwar sentiment in the ranks is making an impact.

In February 2006, pollster John Zogby conducted a survey of U.S. soldiers stationed in Iraq. Seventy-two percent said that U.S. troops should be pulled out within one year. Of those, 29 percent said they should withdraw "immediately."

More than 10,000 soldiers have deserted since the Iraq war began four years ago. According to the Army, the number of deserters has increased every year of the war; 3,196 active-duty soldiers deserted the Army last year, compared to 2,543 the year before.