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The Honolulu Advertiser

Posted at 2:23 p.m., Friday, May 18, 2007

Army court issues partial stay in Watada court-martial

Associated Press

SEATTLE — The Army's court of appeals issued a partial stay Friday in the planned second trial for a Fort Lewis soldier who refused to go to Iraq and spoke out against the Bush administration.

The decision by the Army Court of Criminal Appeals in Arlington, Va., means the July 23 court-martial for 1st Lt. Ehren Watada of Honolulu could be on hold until the court reviews arguments from both sides.

The order allows for all pretrial hearings to continue, including one scheduled for June 5 at Fort Lewis, south of Tacoma.

"Assembly of the court-martial and all proceedings ordinarily following assembly of the court-martial are hereby stayed," the court said in its written order.

The court gave no indication when it would review lawyers' arguments.

Watada is charged with missing movement and conduct unbecoming an officer. If convicted, he could be sentenced to six years in prison and be dishonorably discharged.

The appeals court issued its decision after defense attorneys Kenneth Kagan and James Lobsenz of Seattle moved to dismiss all charges against Watada based on a double jeopardy argument.

The Army has 10 days to respond to the defense's motion to dismiss the case.

Fort Lewis officials on Friday said they were not surprised by the order.

"This is all part of the normal procedures," said Joseph Piek, a Fort Lewis spokesman. "The Army expected the defense would file the double jeopardy motion."

He added, "The court-martial itself is still more than two months away. Even with this motion ... we still expect the court-martial to occur on July 23."

Watada's first military trial ended in a mistrial in February when military judge Lt. Col. John Head said he didn't believe Watada fully understood a pretrial agreement he'd signed.

In filing their motion this week with the appellate court, Watada's lawyers said that a second trial would be impermissible because there was no "manifest necessity" for the mistrial.

Further, Kagan and Lobsenz argued that before declaring the mistrial, Head did not consider any alternatives that could have allowed the original trial to proceed.

"It's our position that the judge abused his discretion when he declared a mistrial," Kagan said on Friday.

Watada originally signed a 12-page stipulation of fact in which he acknowledged he did not go to Iraq with his unit, the 3rd Brigade, 2nd Infantry Division, last June. He also acknowledged making public statements criticizing the Iraq war, which he believes to be illegal.

In exchange, prosecutors dropped two charges of conduct unbecoming an officer, and agreed to proceed to trial on remaining charges.

"Lt. Col. Head, for some reason that we don't entirely understand, believed that Lt. Watada's rights were being violated," Kagan said.

The appellate court's decision is a small victory for Watada.

The court "seems to believe, at least in part, that our argument has merit, such that they want to take time to look at the case more closely and consider the government's responses," Kagan said.