The military's effort to punish Lt. Ehren Watada for refusing to deploy to Iraq fell apart in dramatic fashion on Wednesday, with the judge for the court-martial declaring a mistrial and Watada's attorney calling the case a "hopeless mess" that could not legally be restarted.
In a tense courtroom on the Fort Lewis Army Base, just south of Tacoma, the judge, Lt. Col. John Head, appeared to upbraid the military's prosecutors, telling them they had entered into a pre-trial agreement with Watada that they did not understand, a mistake he likened to botching a basic contract.
"I'm not seeing that we have a meeting of the minds here," Judge Head said. "And like any contract, if we don't have a meeting of the minds, there's not a contract."
The pre-trial agreement, which was reached before the court-martial began on Monday, February 5, had resulted in two charges against Watada being dropped and involved a stipulation, signed by Watada, in which he admitted to not deploying with his unit as ordered in June of last year.
Watada, 28, claimed he had a good reason for not deploying: He had come to believe the war in Iraq was illegal, and he therefore felt he had an obligation to refuse the "illegal order" to deploy. The military's prosecutors said it didn't matter what Watada's motivation for refusing the order was, particularly since the judge had already excluded any talk of Watada's "illegal war" defense during the court-martial. The relevant fact, prosecutors argued, was that Watada had missed the deployment and signed a stipulation saying as much.
The judge saw things differently. After halting the court-martial to question Watada himself, he said that what Watada had signed was in fact a "confessional stipulation"—a stipulation sufficient for conviction on the charge of not deploying—while Watada apparently believed he had signed only a "stipulation of fact" and still retained a legitimate defense against the charge of failing to deploy.
With military prosecutor Capt. Scott Van Sweringen looking frustrated and defeated, Judge Head then declared the stipulation inoperative, announced that he would be telling the jury to disregard it, and asked the prosecutors if they would like to ask for a mistrial. The prosecutors, who had rested their case the previous day and would have faced a daunting task in opening it back up and trying to rescue the proceedings, immediately took him up on the offer.
It was not the end that anyone at the court-martial had expected when it began on Monday, and it remained a mystery why Judge Head had suddenly become so concerned about the stipulation, particularly since the judge was very familiar with the document and two days earlier had questioned Watada in court about his understanding of it—and received essentially the same answers.
A spokesman for Fort Lewis said the judge's actions on Wednesday were "further evidence" that the Army could conduct a fair court-martial that protected the rights of the defendant. Watada's lawyer, Eric Seitz, said the judge had been no friend of his client's and that he was baffled by the judge's decision. But he added that in granting a mistrial at the request of the prosecutors (and over the objections of the defendant), the judge had provided him grounds for a motion to dismiss the case whenever it is reconvened.
"In this case, it is my opinion that Lt. Watada cannot be tried again because of the effect of double jeopardy," Seitz said at a press conference shortly after the trial.
The judge seemed to think otherwise, scheduling the case to begin again on March 19. But it's highly unlikely the case will reopen then, if at all. Seitz plans to ask for a delay because of scheduling conflicts, and if the judge at the second trial (it could be Judge Head again or a new judge) doesn't grant the request for dismissal, Seitz said he would immediately appeal that decision to a higher court.
All along, Seitz had argued that Watada should be allowed to present his "illegal war" defense—be allowed to, essentially, put the legality of Iraq War on trial at Fort Lewis. The contortions that the government had to go through to prevent that from happening, Seitz said, are what ultimately caused the court-martial to fall apart over a stipulation.
"This is just another example of what I consider to be an ill-advised effort to keep those issues out of these proceedings," he said.