Lt. Ehren Watada suffered two losses in court Friday during the Army’s second attempt at court-martialing him for refusing to deploy to Iraq last year.
Military judge Lt. Col. John Head first refused to disqualify himself from the case, despite arguments from Watada’s new attorneys that there is at least the appearance that Head cannot be impartial in this matter.
Head then ruled that trying Watada again wouldn’t violate his constitutional right not to be prosecuted twice for the same crime, also known as double jeopardy.
Head is the same judge who declared a mistrial in Watada’s first court-martial in February after he questioned whether the officer understood a pretrial agreement he’d signed.
On Friday, Watada’s new attorneys, Kenneth Kagan and James Lobsenz, immediately filed notice that they will appeal Head’s decision on the double-jeopardy question to the Army Court of Criminal Appeals in Arlington, Va.
That action is sure to delay the start of Watada’s second court-martial, which is scheduled to begin July 23.
Watada is charged with missing his unit’s movement to Iraq in June 2006 and four counts of conduct unbecoming an officer for negative comments he made about President Bush and the war.
He faces up to six years in prison and dismissal from the Army if convicted.
Watada contends he had a duty to miss the flight with the 3rd Brigade, 2nd Infantry Division, now more than 12 months into a 15-month deployment in Iraq. He contends the war is illegal and that he would be party to war crimes if he participated in any way.
Kagan argued Friday that Head should step away from the case because the judge has created “the impression that your mind is made up as to some of the issues.”
The attorney pointed to an e-mail that Head’s supervisor sent the judge in February indicating she believed the mistrial did not create double-jeopardy issues and that a second court-martial could move forward.
Kagan said the e-mail suggested there was pressure on Head to rule a certain way.
The attorney also said the judge had at the time seemed “hostile to the needs of the defense” for additional time to prepare.
Kagan and Lobsenz took over the case from attorney Eric Seitz this spring.
Head declined to remove himself, saying he does not have an “intractable attitude or preconceived notions” about the case.
Lobsenz then tried to convince Head that his decision to declare a mistrial in the first court-martial was wrong. The judge erred in part, Lobsenz said, by not exploring alternatives to calling off the trial midway through.
Head ruled against Watada on that issue without comment. He is expected to issue a written decision early next week.
The judge also is expected to issue rulings on the admission of evidence should the case again go to trial, including whether Watada may call witnesses to testify about the legality of the war.
Head excluded such witnesses in the first court-martial.
Watada is performing administrative duties at Fort Lewis while the legal process grinds on.