On Friday, a close expert observer of the Watada case offered his view of what Wednesday’s mistrial signified in a brief comment. -- Francis Boyle, professor of law at the University of Illinois, wrote in no uncertain terms that the judge in the court-martial of Lt. Ehren Watada “realized he had lost control” of the case and that his effort to exclude Lt. Watada’s defense from the trial had failed, and therefore “used the stipulation as a pretext to call a mistrial and avoid a serious defeat for the Army” because “there was a good chance the jury would acquit Lt Watada of one, more, or all charges,” which would have been “a great blow to the Pentagon, the Bush Administration, and the continuance of the war.” -- Boyle attributed to JAG, i.e. the Judge Advocate General’s Corps (the Army’s lawyers), the creation of two “obstacles” to the railroading of Lt. Watada: (1) charges that made it impossible to exclude the arguments he wished to use in his defense at the court-martial, and (2) witnesses who “directly confirmed the relevance of these legal arguments.” -- Boyle was a witness at the Article 32 (pretrial) hearing of Lt. Watada held at Fort Lewis in August 2006....
GREAT BLOW TO PENTAGON IN COURT-MARTIAL PROCEEDINGS: LT. WATADA MISTRIAL A GREAT VICTORY
By Francis A. Boyle
February 9, 2007
Lt. Watada's basic defense under international law, U.S. Constitutional law, the laws of war, and U.S. Army Field Manual 27-10 (1956) is set forth below. You can read it for yourself and draw your own conclusions. On 16 January 2007 Judge Head had ruled that none of these arguments could be made at the general court-martial (GCM) proceeding itself. It was clear that the Army was planning to railroad Lt. Watada. The obstacle to doing this was that JAG had brought charges that made these legal arguments impossible to exclude at the GCM.
In addition, at the GCM itself JAG put on prosecution witnesses that directly confirmed the relevance of these legal arguments to the defense of Lt. Watada and in his favor. In addition, his attorney Eric Seitz did a brilliant job in cross-examination of the JAG witnesses to bring out the relevance of these legal arguments to Lt. Watada's defense and in his favor.
And then Lt. Watada was about to take the stand on his own behalf and explain to the jury that he did not deploy to Iraq because he believed the war to be illegal. Judge Head realized that he had lost control of the railroad; that these legal arguments were going to get to the jury; and that there was a good chance the jury would acquit Lt Watada of one, more, or all charges. So Judge Head used the stipulation as a pretext to call a mistrial and avoid a serious defeat for the Army.
Under no circumstances was Head motivated to protect the due process rights of Lt. Watada, which he had already violated grievously on 16 January 2007. Head's argument on the stipulation is completely bogus. Seitz and Watada and Head and JAG knew exactly that he was stipulating to facts only, not to criminal intent. But Head used the stipulation as a pretext to abort a prosecution that he knew the Army had a very good chance of losing with the jury.
Head pulled the plug on the JAG case because he realized that if Lt. Watada was acquitted on any of these charges, which was quite likely, it would be a great blow to the Pentagon, the Bush Administration, and the continuance of the war. So Head declared a mistrial. The problem is that by then the JAG case was closed, Lt. Watada was about to testify on behalf of his defense, so jeopardy had attached and thus a re-prosecution would be barred by the Double-Jeopardy Clause. But as Head saw it, that would be a lot better for the Army, the Pentagon, Bush, and the War than a defeat for them all at the GCM.