When charges were brought originally against Ehren, there were five counts. The two counts of giving interviews to reporters Sara Olson and Dahr Jamail were dropped in the first court martial. In order to save Olson and Jamail from complying with the subpoenas served to them by the military, Ehren stipulated to having made the statements. The military then set aside those charges without prejudice.

When Judge Head called the mistrial, in the first court martial, it was over the strong objection of Ehren’s counsel, and initially against the wishes of the prosecution. After going behind closed doors the prosecution emerged, requested a mistrial, mistrial was granted. Eric Seitz, Ehren’s attorney said at that time that it was his opinion that he could not be tried again because it would be a clear case of double jeopardy.

Judge Settle agreed, the mistrial was mishandled by the military, and just because they blew it, they don’t get a second chance.

When the military pursued a second court martial, Ehren appealed all the way up to the highest military court on double jeopardy grounds and lost. Then last October, his new attorneys appealed in Federal Court to Judge Settle, a former JAG prosecuting attorney himself. In November Judge Settle handed down a temporary injunction.

Ehren has been cleared of being retried for the counts he faced in the first court martial. However, this time around the military added back in the two counts of conduct unbecoming (the interviews with Olson and Jamail) and did not offer the same deal to stipulate. So now Judge Settle has left it up to the military to appeal his ruling as well as continue on concerning those two counts.

Although Ehren’s commission was up over a year ago, the military has not released him. He still reports to his desk job at Fort Lewis. Furthermore, he is still confined to travel no further than a 150 mile radius of Fort Lewis.

Judge Blocks Retrial of War Objector on Key Counts

SEATTLE (AP) — The Army can’t retry a Fort Lewis-based Iraq war objector on
several key charges because that would violate the soldier’s constitutional
protection against double jeopardy, a federal judge ruled late Tuesday.
U.S. District Judge Benjamin H. Settle of Tacoma said the government could
not retry 1st Lt. Ehren Watada on charges of missing his unit’s deployment to
Iraq in June 2006 and for denouncing President Bush and the war.

To do so would violate Watada’s Fifth Amendment rights by trying him twice
for the same charges, Settle held.
”He dismissed the heart of their case,” Watada lawyer Jim Lobsenz said.
”We’re very pleased. It’s taken a long time.”
The judge kicked back to the military trial court for further consideration
two other conduct unbecoming an officer charges against Watada, opening the
door to further court proceedings. Both of those charges involve public
interviews Watada gave to reporters.

Settle said the military court should consider whether there are
”constitutional defects” to retrying Watada on those charges before a civil court
In a statement late Tuesday, a Fort Lewis spokesman said the base’s
commanding general, Lt. Gen. Charles H. Jacoby Jr., had not yet had a chance to
review the ruling in depth.
”Once that review is complete, he will be able to make a decision on the way
forward with this case,” the spokesman said.

Watada contended that the war is illegal and that he would be a party to war
crimes if he served in Iraq. His first court-martial ended in a mistrial in
February 2007.
Lobsenz had said it was a mistake for a mistrial to be declared in that case.

On Tuesday, Settle agreed, noting that the trial judge ”did not exercise
sound discretion” when he failed to determine whether a mistrial was

Thanks to Robin for supplying the above info and writing the intro.


  1. coolcuke said,

    October 22, 2008 at 16:52

    It is glaringly obvious that the first trial was deliberately bungled , as per the prosecutor’s change of attitude after a closed door meeting. They know Lt. Watada is correct in his assertion that the Iraq war is an illegal war and if they find him guilty then they too are complicit to war crimes. However, their problem is how to make an example of him and at the same time exonerate themselves of complicity. What baffles me is why won’t they simply do what is right? What is so sacred about the system of killing, maiming,and destroying that none of them have the fortitude to stand against it? What are they so afraid of? Lt. Watada has more courage than all of them put together.

  2. Robin said,

    October 22, 2008 at 19:00

    Coolcuke (and any others who may be reading here)
    It is important to understand how the mistrial was called in the first court martial.
    As noted above, Ehren had stipulated to having made the statements to the two reporters to save them from facing their subpoenas.

    Ehren had also signed a stipulation that he had missed movement WILLINGLY. Ehren NEVER plead not guilty to missing movement. He did however have a defense for his actions, the Nuremberg Principles and the military’s own code of justice which call on all military personal to refuse illegal orders. Ehren’s defense was that he came to believe after much studying and deep personal reflection that should he follow orders to deploy to Iraq he would be committing a war crime.

    In the first court martial, Ehren had been stripped of every single witness he had called which would have backed up his claim that the war is illegal. Judge Head had ruled that the legality of the war was not at issue in Ehren’s case. So on the last day of the trial, the only two witnesses that the defense had to call were another officer who had been flown in from Iraq to testify as to Ehren’s character and outstanding military service and Ehren himself. The day prior, the prosecution witnesses had actually been better witnesses for the defense than the prosecution.

    On the last day, when the court reconvened late, the judge insisted that Ehren had admitted to his own guilt by signing the stipulation that he missed movement, and that Ehren did not understand what he had done. However, Ehren DID understand what he had done. I was in the court room that day pecking away as best I could on my laptop. This is the portion of what Ehren stated.: (note the last statement by the judge, the legality of the war was not at issue because HE had decided it wasn’t and disallowed Ehren’s defense)

    Judge: Do you remember what I asked you before regarding the stipulation?
    Paragraph 4, page 7: What does it mean that you intentionally did not board the aircraft.

    Ehren: Your honor, in that sentence, is that intentionally missed movement because I believe it would lead me to participate in war crimes in an illegal war.

    Judge: Do you believe you had a duty to make that movement?

    Ehren: No

    Judge: What do you think this paragraph means?

    Ehren: I have always believed I had a reason to miss movement. That has been my contention all along that I have the legal and moral right

    Judge: Do you believe that paragraph 4 gives every reason ?(why you missed movement)That’s the problem I am having the problem, because you don’t think you had the duty, regardless, what do YOU believe?

    Ehren: Your honor I did not miss boarding the aircraft out of negligence or because it was a mistake, I was being asked to do something I could not do.

    Judge: Let me read to you what you read before: the government has the duty to prove beyond a reasonable doubt that you missed movement, by stipulating that you missed movement, that you stipulated and that relieved the government’s burden. What did you understand that to mean?

    Ehren: I do understand, that I stipulated, but there is additional evidence that goes to my defense.

    Prosecutor: His motives are irrelevent,

    Judge: Do you believe the government proved by stipulation, that the burden was removed.

    Seitz: That does not mean that there was not motive, which you have stripped us of.

    Judge:That is a completely different matter.

    Coolcuke, I am in agreement with you, the first court martial was deliberately bungled. Re-trying him when the first trial was bungled, deliberately or not is clear double jeopardy. Whether or not the military pursues the other two lesser charges not included in the first trial is up to them, but now Ehren CANNOT be re-tried on.


    On the day of the mistrial his belongings had been packed and he was prepared to face prison should the jury have ruled against him.

    Ehren Watada is a TRUE AMERICAN HERO, and no matter WHAT the government does to him in the future, they CANNOT take that away from him.
    He REFUSED to participate in the CRIME of the United States invasion and continued occupation of the Iraqi nation and it’s people.

  3. gmathol said,

    October 23, 2008 at 05:10

    America’s lynch justice at it’s best. That shows the World that not only that the US military is pathological murderous but has no clue about justice at all.

    Poor little Amis who have to expose themselves to such a system.

  4. Robin said,

    October 23, 2008 at 07:52

    There needs to be a bit of clarification, above I stated the two charges that Settle did not rule on concerning double jeopardy had been dropped. That they were set aside without jeopardy. I am not a legal expert but the way I worded it was a bit misleading.

    Those two charges were set aside without prejudice MEANING that although he was not charged with them during the court martial, upon COMPLETION of the court martial, they would have ripened in to charges. A mistrial was called by Judge Head, those charges never “ripened” therefor, jeopardy did not attach to them.

    Anyone wanting to read the long decision by Judge Settle can go to this link and then link to the pdf of his decision there

    The simple explanation is that Ehren signed a stipulation that he had missed movement, he stipulated to FACT but that his INTENT was based on legal grounds. That stipulation was accepted by the judge, but Ehren did NOT plead “guilty”, he stated quite clearly he had a defense, the Nuremberg Principles. During the mistrial the prosecution stated, “He thinks he has a defense, we do not”, but the judge had already tossed out all of Ehren’s witnesses and wouldn’t even allow the trial to continue with only Ehren to testify for himself, SUPPOSEDLY part of his reason is that Ehren didn’t understand he had admitted guilt relieving the military of the burden to prove it. The JUDGE decided to toss out the stipulation because he stated, “there is not a meeting of the minds” Then the judge tried saying the military didn’t have any proof to proceed that Ehren had missed movement. HELLO, what about Ehren himself? Had the trial been allowed to proceed which is what Ehren wanted, he would have stated right there and then he missed movement!

    Hope that makes more sense. (or maybe now you are even more befuddled because Judge Head’s reasoning and what went on in that courtroom made no sense, not legally, therefore Settle ruled double jeopardy, and certainly not to any lay person)

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