Kenneth S. Kagan [attorney for US Army 1st Lt. Ehren Watada]: "In February, 2007, 1LT Ehren Watada was tried by a court-martial for his refusal to deploy to Iraq, and for statements he made on four separate occasions in various media explaining his rationale for his intention to refuse to deploy (and on one occasion, explaining, after the fact, why he did not deploy with his unit). Prior to the commencement of his trial, 1LT Watada and the Government entered into a Pretrial Agreement and a Stipulation of Fact. Pursuant to that agreement, in exchange for his stipulating to the accuracy and authenticity of certain of the statements he made (thus relieving the Government of the burden of calling certain reluctant witnesses to establish a foundation for the admission of those statements), the Government agreed to move to dismiss two of the incidents (referred to as "specifications") of "Conduct Unbecoming an Officer."
At the close of the Government's case, but before the defense presented its case, the presiding military judge, Lt. Col. John M. Head, announced that he was troubled by what appeared to him to be an inconsistent position taken by the defense (or at least, his sense of the position he believed the defense would be taking, as reflected by a proposed jury instruction relating to mistake of fact submitted by defense counsel). He thus thought that 1LT Watada acted in breach of the Pretrial Agreement, and indicated his intention to set it aside and reject the Stipulation of Fact. He undertook a lengthy colloquy with 1LT Watada, and engaged in a lively debate with counsel. What was most astonishing was the uniform approach taken by the defense and the prosecution, wherein both sides were in accord that there was no problem with the agreement, and no issue requiring a mistrial. The lead prosecutor went about as far as a lawyer can go in trying to dissuade the judge from declaring a mistrial, but, ultimately, after several hours, the prosecution caved in and reluctantly asked for a mistrial, which was granted over the defendant's vociferous objection. Defense counsel at that time, Eric Seitz of Hawaii, even warned the judge that the judge was creating a situation in which a second trial might well be barred by the Double Jeopardy Clause, but the judge was undeterred.
My partner, Jim Lobsenz, and I took over as counsel for 1LT Watada in March, and sought relief in the military appeals courts (beginning with the Army Court of Criminal Appeals, and progressing to the Court of Appeals for the Armed Forces). Our arguments were that (1) a second trial was barred by the Double Jeopardy Clause; and (2) a stay of further court-martial proceedings was required while the courts reviewed the double jeopardy issue. Notwithstanding our argument that double jeopardy relates directly to the "right not be tried," and that therefore the only way the Double Jeopardy Clause would have any meaning would be if arguable claims were reviewed before a subsequent trial, the military courts were unsympathetic, and insistent that 1LT Watada's rights could be vindicated on direct appeal (assuming a conviction, of course).
At that stage, there was no alternative but to seek relief by way of a Sec. 2241 habeas petition and a request for an emergency hearing on a request for a stay. The matter was assigned to Judge Settle, who scheduled an emergency hearing the same day he received the case and our briefing. After hearing our presentation and the argument of the Assistant US Attorney, Judge Settle, the next day, issued an order staying the court-martial (which was scheduled to convene in 4 days) until further order.
Next, Judge Settle asked for further briefing from the parties directed more specifically to the Double Jeopardy issue, and after receiving a full complement of briefing, took the matter under advisement. On November 8th, Judge Settle issued a 33 page decision, granting a Preliminary Injunction. In his order, Judge Settle found that Judge Head had abused his discretion in setting aside the Stipulation of Fact; that even if he had not abused his discretion, there was no "manifest necessity" for a mistrial; that 1LT Watada had demonstrated in several respects that there was a significant likelihood he would prevail on the merits of his Double Jeopardy claim; that he would be irreparably injured if he was forced to go to trial; and that the balance of harms (to him versus the public) weighed in his favor.
In so ruling, Judge Settle did not stake out any new or novel grounds. His decision was not activist or legislative in scope. Instead, he relied upon well-settled precedent, long-established principles articulated in cases from the United States Supreme Court and numerous federal circuits. What distinguished our experience with Judge Settle from our experiences in the military courts was that Judge Settle took the issues seriously, and made an intellectually honest decision divorced from politics. Regrettably, we are unable say the same for the military courts.
As of this writing, it is unclear what the next step(s) will be, with regard to our seeking an order converting the Preliminary Injunction into a Permanent Injunction, and the Army's efforts to seek a vacation of the Injunction and the right to try 1LT Watada a second time. It seems reasonably certain the Ninth Circuit will get involved at some point, and we remain confident that the law (without regard to the politics) is on our side."