Lt. Watada gets a mistrial, and may walk

Jacob Hornberger, who practiced law for 12 years before he quit the practice to become a libertarian writer, has an interesting, legal opinion about the mistrial on the court-martial of Army 1st Lieutenant Ehren Watada:

A mistrial was declared yesterday in the case of Lt. Ehren Watada, the military officer who refused orders to deploy to Iraq. Watada's refusal is based on the principle set forth at the Nuremburg War Crimes Tribunal that soldiers have a moral and legal duty to refuse to obey orders that constitute war crimes. Watada indented at the trial to show that Bush' invasion of Iraq was a war crime (i.e., a war of aggression, one of the war crimes prosecuted at Nuremburg) and, therefore, that Watada had a moral and legal duty to refuse to deploy to Iraq.

The mistrial might well have put an end to the Watada prosecution, based on double-jeopardy grounds.

Once the trial began, the military prosecutor got hoisted on a petard of legal trickery that he tried to foist onto the presiding judge. Since Watada was not disputing that he had in fact refused to deploy to Iraq, he had entered into a stipulation agreeing that the prosecutor would not have to prove that particular fact.

In what has to be one of the most ludicrous arguments in legal history, the prosecutor argued, in classic legal trickery, that by stipulating to that particular fact (that Watada had refused to deploy to Iraq) Watada had admitted his guilt and effectively waived his Nuremburg-style defenses.

It became clear that the presiding judge wasn't overly impressed with the prosecutor's ludicrous legal arguments regarding the stipulation, which in turn prompted the prosecutor to move for a mistrial, which the judge granted. A new trial date is set for March.

There's one big problem, however, for the U.S. military and its prosecutor--the U.S. Constitution, which still applies to U.S. military courts martial--specifically the constitutional bar against double jeopardy. Once the trial started, Watada was placed in legal jeopardy. He didn't agree to a mistrial. By granting the prosecutor's (not Watada's) motion to start over and do it again, a new trial would effectively be placing Watada in legal jeopardy a second time. And that's exactly what Watada's lawyer is now arguing.

Now, I am not a lawyer. However, I have a legal mind, I know basic law, especially constitutional law, and from what I know, Hornberger is dead-on accurate, if the judge is honest. However, the prosecutor will say double jeopardy does not apply in this case, and the judge might accept the prosecutor's argument (the Supreme Court perverted the meaning of the Constitution in Wickard v. Filburn, United States v. Miller, Arver v. United States, Sparf v. United States, Kelo v. City of New London, et al). But, in real honest constitutional law, if the defense's motion for a mistrial is granted, double jeopardy does not apply; however, if the prosecutor does, double jeopardy does too.

By the way, the meaning of "double jeopardy" is found in the 5th Amendment: "[No person shall] be subject for the same offence to be twice put in jeopardy". That is one angle of his case. Another angle, and I believe a more stronger case, is Watada was following his oath, which means he will support and defend the Constitution against all enemies, foreign and domectic, and he will do this before he will obey the "Decider-in-Chief" or any other officers above him. If the judge interprets the Constitution the way the Framers intended, Watada walks a free man.