By Jason Farbman and Sam Bernstein | February 16, 2007 | Pages 1 and 2

IN WHAT could emerge as a significant victory for the antiwar movement, a military judge declared a mistrial in the court-martial of Lt. Ehren Watada, the first officer to refuse deployment to Iraq. The result of the mistrial, say his lawyers and other legal experts, is that Watada may walk free.

Watada decided to follow his conscience and not deploy to Iraq in June 2006, in protest of what he considers an illegal and immoral war.

The Army filed charges against Watada that include not only "missing movement" for refusing to join his Stryker Brigade unit when it shipped out, but "conduct unbecoming an officer and a gentleman"--for the "crime" of giving interviews and speeches against the war. Watada faced a total of six years in a military prison on these charges.

From the beginning, the judge in Watada's case, Lt. Col John Head, made it clear he would limit the defense in every way he could. He refused to allow Watada to state his position that the war is illegal under international law.

Head denied every other defense motion, ruling, for instance, that all but one of the defense team's witness pool--which included an expert in international law from Princeton, a former United Nations Assistant Secretary General, an Army general and a member of Congress--were "irrelevant."

What you can do For more information on Lt. Watada's case, updates on future activities and what you can do to support him, see the Thank You Lt. Ehren Watada Web site. Active-duty soldiers can register their discontent by signing the Appeal for Redress. Troops who need advice about their rights should go to GI Rights Hotline Web site or call 800-394-9544 from the U.S. or 510-465-1472 from outside the U.S. Go to the Iraq Veterans Against the War Web site for news and updates about war resisters and other initiatives. For an excellent history of the GI rebellion during the U.S. war on Vietnam, read David Cortright's Soldiers in Revolt, newly republished by Haymarket Books. David Zeiger's Sir! No Sir! is an inspiring documentary about the Vietnam soldiers' revolt, and is available on DVD, along with many other supplemental materials.

Despite stacking the deck against Watada, the military faced growing uproar over its case against Watada. Prosecutors used subpoenas to try to force several journalists and activists to testify against Watada.

Shortly before the trial, officials agreed to drop the subpoena and two charges against Watada--reducing his maximum sentence to four years--when Watada signed a "stipulation" saying that he did miss movement and publicly denounced the war.

Yet the stipulation produced the trial-ending catch-22. The agreement clearly stated that the defense reserved the right to argue any motion it had submitted, including its use of the "Nuremberg Defense"--the international ruling under which a person must disobey immoral or illegal orders given by the government if possible.

After using the prosecution's witnesses against them in the opening days of the trial that began February 5, the defense team got ready to bring Watada to the stand to make his case. But at the last minute, the judge suddenly cast doubt on the stipulation, claiming that it amounted to a confession.

Watada's lawyers believe that Head didn't want to give Watada an opportunity to prove the illegality of the war, so he tossed out the stipulation. The prosecution then pointed out that their whole case rested on the "statement of facts" and called for a mistrial--over the objections of Watada's defense attorneys. Head set a new trial date of March 19--ironically, the fourth anniversary of the Iraq war.

Many legal experts, however, say that Watada cannot be retried on the same charges under the Constitutional ban on "double jeopardy"--being tried on the same charges twice.

If the court-martial does resume March 19, Watada's lawyers will object and appeal, possibly pushing the trial back to May. But in the meantime, Watada will have served out his remaining time in the Army. His lawyers are now saying they think he could walk away a free man.

The Army faced an inevitable contradiction in the Watada case. On the one hand, it is trying to crack down on dissent and make an example of Watada as antiwar soldiers and veterans are increasingly speaking out. On the other hand, this might have allowed Watada to explain why the Iraq war is illegal and immoral--exactly the opposite of the military's intentions.

The military was clearly sweating the pressure of nationwide and worldwide attention and protest in support of Watada's right to resist. On the first day of the court-martial, more than 1,000 people--led by Iraq Veterans Against the War and the family of war resister Agustin Aguayo--converged on the gates of Fort Lewis to show their support for Watada.

Watada's heroic stand could be a defeat for the military and a much-needed victory for the reviving antiwar movement.

If it succeeds, Watada will likely embolden other soldiers to follow their consciences and abandon the war on Iraq. The antiwar movement must welcome them and take up their cause.

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