Mistrial for Watada

[Winstonm]

Lt. Watada, who refused to go to Iraq because he claimed the Nuremberg defense that the war was illegal and thus his orders to go were illegal, was brought to court martial but the trial ended in mistrial. According to some legal experts, a retrial is impossible due to double jeapordy.

 

Link to story: http://www.truthout.org/docs_2006/020807A.shtml

 

Was a mistrial declared because the military did not want to have to face this defense in an open court martial?

[luke warm]

possibly so... i think this could all be stopped if, in the future, u.s. troops are not committed to battle unless congress declares war

[hrothgar]

My understanding is that there are significant differences between civilian courts and military courts. I just did a quick search trying to figure out if double jeopardy applies in the case of military trials. I found the following:

 

http://www.armfor.uscourts.gov/opinions/2003Term/02-0212.htm

 

In Rosendahl, we noted that service members are protected with respect to each of the three components of the constitutional prohibition against double jeopardy. "In the military, as in civilian life, the following are prohibited: (1) trial for the same offense after acquittal; (2) trial for the same offense after conviction; and (3) multiple punishments for the same offense." 53 M.J. at 347. See Articles 44, 63, and 75(a), UCMJ, 10 U.S.C. §§ 844, 863, 875(a)(2000); Rule for Courts-Martial (hereinafter R.C.M.) 810(d)(1) and 1107(f)(5)(A), Manual for Courts-Martial, United States (2002 ed.)(hereinafter MCM). See also North Carolina v. Pearce, 395 U.S. 711 (1969).

[helene_t]

possibly so... i think this could all be stopped if, in the future, u.s. troops are not committed to battle unless congress declares war

Is that a good idea, Jimmy? I suppose most future tasks of U.S. troops will be peace-guarding missions. It would be difficult to find someone against whom to declare war in Iraq, for example.

[Winstonm]

I wonder if the military would rather not retry than have to deal with the planned defense, even if double jeopardy does not apply.

[luke warm]

possibly so... i think this could all be stopped if, in the future, u.s. troops are not committed to battle unless congress declares war

Is that a good idea, Jimmy? I suppose most future tasks of U.S. troops will be peace-guarding missions. It would be difficult to find someone against whom to declare war in Iraq, for example.

i think it's an excellent idea, and one i'll implement when i'm benevolent dictator... it would force congress' hands and (almost) guarantee the support of the public before troops are committed... imagine life if we'd not gone into viet nam or iraq or countless other places unless war was declared... true, the executive branch needs emergency powers, but outside of that i'm for either fighting a WAR or stayng home

 

and if we fight a war, we fight it to win... quickly and decisively

[Winstonm]

possibly so... i think this could all be stopped if, in the future, u.s. troops are not committed to battle unless congress declares war

Is that a good idea, Jimmy? I suppose most future tasks of U.S. troops will be peace-guarding missions. It would be difficult to find someone against whom to declare war in Iraq, for example.

i think it's an excellent idea, and one i'll implement when i'm benevolent dictator... it would force congress' hands and (almost) guarantee the support of the public before troops are committed... imagine life if we'd not gone into viet nam or iraq or countless other places unless war was declared... true, the executive branch needs emergency powers, but outside of that i'm for either fighting a WAR or stayng home

 

and if we fight a war, we fight it to win... quickly and decisively

I would take this one step further - it must be a defensive war. Lies about WMD, chemical stockpiles, and Nigerian yellowcake may have misled Congress into declaring a pre-emptive, offensive war.

[mike777]

If you believe there is a war against Radical Islam or some stateless enemy who does Congress declare war against before launching cruise missiles? If you believe we should never fight a stateless enemy, no problem.

 

So much for fighting those nanobots or a malevolent AI ;)

[Winstonm]

If you believe there is a war against Radical Islam or some stateless enemy who does Congress declare war against before launching cruise missiles?  If you believe we should never fight a stateless enemy, no problem.

 

So much for fighting those nanobots or a malevolent AI :)

I have stated my opinon before and will do so again. Terrorism is a crime, and as such should be dealt with by police action, not war.

 

A war of ideology had no place on the battlefield, unless one ideological group invades another in hopes of conquering - but it is the action of invasion that warrants the war, not the battle of minds.

 

Do you, Mike, believe that each individual has a right to his own beliefs? If so, then a radical Islamic has a right to his beliefs. If those beliefs are in opposition to yours, does that give you the right to kill this person - simply because his beliefs do not conform to your beliefs? The only time you have the right to kill is when the other person attacks, and you act in self defense. To kill before he acts is simple murder.

 

If a terrorist attacks and kills, we call it murder.

 

If you were a radical Islamic, and the U.S. attacks and kills your followers, you would call it murder - it is a matter of perception.

 

No one can change the actions of another human being unless done by force. If I hold a gun to your head and tell you to get down on your knees, you will do so, but have I accomplished anything of worth? And my actions will be either viewed as criminal, if I have no perceived authority to order you around, or legal, if I am a policeman perceived as making a legal arrest.

 

It is only a matter of perception that alters the view of the action.

 

My perception is that murder is murder, no matter who does the killing.

[mike777]

hmm I have my doubts that most killings in war are murder.

 

Heck of alot of horrible things are legal in war, not just killings.

[Winstonm]

hmm I have my doubts that most killings in war are murder.

 

Heck of alot of horrible things are legal in war, not just killings.

Mike, define war.

[mike777]

Whatever Mrs. Clinton, errr, Mrs President says, I guess or

 

http://en.wikipedia.org/wiki/WAR

[Winstonm]

A war is a violent conflict between two or more groups that involve large numbers of individuals. Wars may be prosecuted simultaneously in one or more different theatres. Within each theatre, there may be one or more consecutive military campaigns. Individual actions of war within a specific campaign are traditionally called battles, although this terminology is not always applied to contentions in modernity involving aircraft, missiles or bombs alone in the absence of ground troops or naval forces.

 

 

Seems to me that according to the definition you provided, killing small groups of isolated terrorists are not acts of war.

 

I believe a great number of people - like me - do not accept the nomenclature of "War on Terror". So what happens in this mis-named "war" cannot be compared to what occurs in actual war on the battlefields.

 

We should refer to these deaths as what they are - executions.

 

How can you have a "War" when the enemy combattants are not protected under the Genova Convention? If it is war, the convention applies; if the convention does not apply, it is not war.

[helene_t]

We should refer to these deaths as what they are - executions.

 

How can you have a "War" when the enemy combattants are not protected under the Genova Convention? If it is war, the convention applies; if the convention does not apply, it is not war.

As I understand it, the Geneva Convention applies to prisoners who were soldiers in a recognized country - since what they were doing (being soldiers) was legal under there jurisdiction (that of their own country) they are not ordinary criminals.

 

If that is correct, the Geneva Convention does not apply to guerilla war, which is nonetheless commmmonly refered to as "war".

 

Correct me if I'm wrong. Anyway, I agree with you that the "war on terror" shouyld not be called a war. Whether "execution" is the right word, I duno.

[Winstonm]

We should refer to these deaths as what they are - executions. 

 

How can you have a "War" when the enemy combattants are not protected under the Genova Convention?  If it is war, the convention applies; if the convention does not apply, it is not war.

As I understand it, the Geneva Convention applies to prisoners who were soldiers in a recognized country - since what they were doing (being soldiers) was legal under there jurisdiction (that of their own country) they are not ordinary criminals.

 

If that is correct, the Geneva Convention does not apply to guerilla war, which is nonetheless commmmonly refered to as "war".

 

Correct me if I'm wrong. Anyway, I agree with you that the "war on terror" shouyld not be called a war. Whether "execution" is the right word, I duno.

You could be right, Helene, and I'm too lazy today to look it up. But I thought the Viet Cong were provided rights under the Geneva Convention, and they could be classified as guerilla fighters I would think.

 

I'm not sure if execution is the right word either - perhaps the phrase counter-terrorim action is more appropriate.

 

However, my point is that whatever it is called depends on your perception - I doubt the followers of bin Laden call U.S. actions justifiable homicide.

 

Speaking of the Geneva Convention:

 

It is my understanding that part of the reason for the Military Commissions Act was so these new enemy combattants in the "War of Terror" could be removed from the protections of the Geneva Convention - so they could be tortured and not have any rights to habeus corpus.

 

This is an interesting Act we of the good old U.S.A. passed - I'm not sure many people even think about it. But here is what it does:

 

If you are suspected - notice, not proved - but suspected of having terrorist connections, the U.S. government has the right to arrest you with no charges, hold you in jail forever with no charges, torture you at their whim, while you have no rights whatsoever to prove your innocence and no one but your captors to decide your fate. No U.S. court can free you.

 

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate.

Oliver Wendell Holmes

 

 

The Military Commission Act - that ought to make us feel proud to be Americans.

[BebopKid]

By definition, double jeopardy is the trial of someone who has already received a verdict of not gulity

 

Since there is no verdict in a mistrial, the judge declaring this mistrial may declare the mistrial with or without predjudice.

 

With predjudice means that the judge is in effect rendering a not guilty verdict. This usually only happens in cases of prosecutorial misconduct or overwhelming evidence.

[Winstonm]

By definition, double jeopardy is the trial of someone who has already received a verdict of not gulity

 

Since there is no verdict in a mistrial, the judge declaring this mistrial may declare the mistrial with or without predjudice.

 

With predjudice means that the judge is in effect rendering a not guilty verdict.  This usually only happens in cases of prosecutorial misconduct or overwhelming evidence.

I cannot dispute your claims as I am not an attorney - but you might consider the opions of these legal experts:

 

Marjorie Cohn, a professor at the Thomas Jefferson School of Law and a proposed expert witness for the defense, opines: "When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court-martial, he probably didn't realize jeopardy attached. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges."

 

Prominent Honolulu defense attorney Howard Luke states, "Was there manifest necessity? That's up to the court to decide...From what I understand, I think not. The case could have been continued."

 

Let's close by examining the law on whether Lt. Watada can be forced to endure a second trial despite the double jeopardy doctrine. The latest case on the subject, US v. Eliot, 463 F.3d 858, 864 (9th Cir. 2006), states: "When, as here, a mistrial is ordered over a defendant's objection, retrial is permitted only if there was a "manifest necessity" for a mistrial (a case-by-case determination with a "high" burden). Other factors to look at are whether the trial judge (1) heard the opinions of the parties about the propriety of the mistrial, (2) considered the alternatives to a mistrial and chose the alternative least harmful to a defendant's rights, (3) acted deliberately instead of abruptly, and (4) properly determined that the defendant would benefit from the declaration of mistrial."

 

A case to look at for guidance is United States v. Rivera, 384 F.3d 49, 56 (3rd Cir. 2004) which states: "Critically, a mistrial must not be declared without prudent consideration of reasonable alternatives. Federal Rule of Criminal Procedure 26.3 requires that "efore ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives. Where a District Court sua sponte declares a mistrial in haste, without carefully considering alternatives available to it, it cannot be said to be acting under a manifest necessity. Any subsequent reprosecution under those circumstances is barred by the Double Jeopardy Clause."

 

Eric Seitz (defendent's attorney) has stated, "My professional opinion is that Lt. Watada cannot be tried again because of the effect of double jeopardy," and will file a motion to dismiss the entire case