The fate of the first Army officer to face prison for refusing to deploy to Iraq might be decided by a civilian judge rather than a military jury.

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The fate of 1st Lt. Ehren Watada, the first Army officer to face prison for refusing to deploy to Iraq, might be decided by a civilian judge rather than a military jury.

In a rare, last-minute move, U.S. District Court Judge Benjamin Settle on Friday put Watada’s Tuesday court-martial on hold. In the weeks ahead, Settle will decide whether this second trial should proceed, or be quashed as a violation of the officer’s constitutional rights that protect against double jeopardy, or being tried twice for the same crime.

Watada’s first trial unraveled in February when a military judge expressed misgivings over Watada’s interpretation of a pretrial agreement. The judge, over objections by the defense, ruled a mistrial. Watada’s attorneys argued that a second trial sought by Fort Lewis prosecutors would represent double jeopardy, and they unsuccessfully sought to persuade two military appeals courts to block the trial.

The defense attorneys turned to civilian courts this week. And the case was assigned to Settle, a longtime Shelton lawyer and President Bush appointee who assumed the judgeship this summer.

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Settle appears to be taking a more favorable view of defense arguments. In the Friday ruling, he wrote that “the record indicates that petitioner’s double-jeopardy claim is meritorious.” He is expected to issue a final ruling in coming weeks.

“It’s hard to read tea leaves, but it looks promising,” said James Lobsenz, Watada’s attorney, after reviewing the judge’s ruling. “It’s important for people to remember that the government doesn’t get a warm-up trial, and then do it over again to try to get it right.”

The military’s position — that the second court-martial should proceed — will be argued by the U.S. Attorney’s Office.

“Fort Lewis, the U.S. Army Court of Criminal Appeals, and the Court of Appeals for the Armed Forces all believe that the case was proceeding in accordance with the law,” said a statement released Friday night by Fort Lewis.

Raised in Hawaii, Watada in June 2006 refused to join his Fort Lewis brigade in Iraq. He deemed the war to be illegal and in violation of U.S. and international law. He received international recognition: He was reviled by some for breaking his oath to serve his country, and was an inspiration to others who oppose the war. In his public announcements, he accused the Bush administration of war crimes, and appeared to urge soldiers to refuse to fight.

“If soldiers realized this war is contrary to what the Constitution extols — if they stood up and threw their weapons down — no president could ever again initiate a war of choice,” Watada said at a Veterans for Peace convention in August 2006.

The Army, stung by Watada’s public rebellion, charged him with missing the June deployment of his Fort Lewis Stryker Brigade to Iraq, and for statements considered to be conduct unbecoming an officer.

In the months leading up to the initial trial in February, Watada’s defense counsel, then Eric Seitz of Hawaii, sought to put the war on trial, and introduce a parade of witnesses to testify to the alleged illegality of administration actions.

But Military Judge John Head attempted to quash such testimony again and again. In a key pretrial decision in January, Head ruled the legality of the war is a political question that could not be judged in a military court.

Head, citing federal court precedents, also rejected defense attorneys’ claim that Watada’s First Amendment rights shielded him from charges relating to his criticism of the war.

So Watada appeared a longshot for acquittal as his first court-martial opened in February.

But deep into the court-martial, Head had serious concerns about a 12-page pretrial agreement that Watada signed in a deal that cut two years off his possible sentence. Watada confirmed in that agreement that he intentionally missed his brigade’s deployment.

The defense and prosecution both believed the agreement did not constitute an admission of guilt. And Watada in court affirmed that he believed he was innocent because the war was illegal.

But Head said the agreement had all the elements of a confession, and that Watada appeared not to understand what he had signed. Head then tossed out the stipulation, and the mistrial was declared.

Hal Bernton: 206-464-2581 or

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