Justice Department drops appeal in Watada case

May 6, 2009

U.S. Army 1st Lt. Ehren Watada

The U.S. Justice Department under the Obama administration has decided to drop its appeal of a federal judge's ruling that 1st Lt. Ehren Watada cannot face a second court-martial resulting from his high-profile 2006 refusal to go to Iraq with his Fort Lewis brigade.

The Ninth Circuit Court of Appeals Wednesday granted the Justice Department's request to drop its appeal of a federal judge's earlier ruling that the second court-martial of 1st Lt. Ehren Watada on that count would represent double jeopardy and a violation of Watada's constitutional rights.

This is the latest development in the long legal battle of Watada, whose 2006 decision not to join his Stryker brigade in Iraq turned the Hawaiian-born officer into a national symbol of the anti-war movement.

But Watada's legal troubles may not be over.

He could still face a military tribunal for two other counts of conduct unbecoming an officer, according to a Fort Lewis spokesman.

Those counts were not thrown out by the federal court. They result from two interviews Watada gave in 2006, in which, among other comments, he attacked then-President George Bush for betraying the trust of the American people. He also said that Bush's conduct made him ashamed to wear his Army uniform.

"At this point the leadership at Fort Lewis is considering a full range of judical and adminstrative options, which could range from court martial to administrative actions and discharge," said Joe Piek, a Fort Lewis spokesman.

Watada's first court martial, in February 2007, ended with a mistrial.

To block a second court martial, Watada's attorneys sued in U.S. District Court. The unusual move left the U.S. Justice Department arguing the case on behalf of the Army.

In October, U.S. District Judge Benjamin Settle in Tacoma ruled that Watada could not be prosecuted again by the Army on charges of missing his deployment to Iraq. He also blocked court-martial for comments made in a news conference and while speaking at a Veterans for Peace national convention.

But Settle left open the possibility that the Army could retry Watada on the two counts of conduct unbecoming an officer.

The Army has consistently maintained that a second trial on all the counts would not be double jeopardy. In December, in the waning days of the Bush Administration, the Justice Department filed a notice of appeal that kept open the option of trying to overturn Settle's ruling.

After a more lengthy review, the Justice Department in the Obama administration opted to withdraw that appeal. That decision was made by the department's Office of Solicitor General, which determines what cases should be appealed, according to Emily Langlie, a spokeswoman for the U.S. Attorneys Office in Western Washington.

Through the course of this legal battle, Watada has been assigned a desk job at Fort Lewis. Eventually, he hopes to return to civilian life and attend law school, said Kenneth Kagan, one of Watada's attorneys.

The 3rd Brigade, 2nd Infantry Division that left for Iraq without Watada was deployed for 15 months. The brigade returned to Fort Lewis and is preparing to serve again in Iraq later this year.

Hal Bernton: hbernton@seattletimes.com