Watada Protected by Right Denied to Others

In a tightly worded opinion, U.S. District Court Judge Benjamin Settle issued an injunction precluding the Government from retrying Lt. Ehren Watada from being brought forth for a second proceeding of court-martial. The basis of the Judge's decision rested on the Constitution's Fifth amendment protection of double jeopardy which holds that an accused may not be tried twice for the same offense. Much ink will flow on the issue of whether Watada is actually entitled to the defense of double jeopardy. Lost in most of the analyses is the fact that Watada was able to invoke the aid of the Federal Courts by the writ of habeas corpus. Before any court can exercise power over a case it must have jurisdiction -- that is the legal power to entertain the claims advanced by the parties. In this instance, the entire basis for jurisdiction was the writ of habeas corpus. Were Watada considered an "enemy combatant" he would have no such right. In fact, many conservative commentators will argue that Watada did not enjoy this right given his status in the military. Kudos to Judge Settle for invoking this right in taking Watada's case. There are a great many Federal Judges who would have deferred to the military and would have refused to hear the case much less issue an injunction in favor of Watada.

Many procedural hurdles remain to be jumped before Watada is out of the woods but some observations are in order. First and foremost is the fact that Lt. Watada is taking a principled stance against an extremely unpopular war. Disenchantment with the war is not limited to the chattering classes or to the liberal left -- many in the military despise this war. Had Watada taken this stand during the first gulf war or during the so-called "Panama incursion" would he have been granted relief? I hardly think so. The reality is that he has attracted top notch legal talent and the backing of the public precisely because this war is so wretchedly wrong and appropriately unpopular. Even so I salute Lt. Watada for acting on his convictions. Many others failed to do likewise and gave this administration the tools to carry on this disastrous war.