Watada v. Head
| Decision Date | 08 November 2007 |
| Docket Number | No. C07-5549BHS.,C07-5549BHS. |
| Citation | 530 F.Supp.2d 1136 |
| Parties | 1Lt. Ehren K. WATADA, Petitioner, v. Lt. Col. John HEAD, Military Judge, Army Trial Judiciary, Fourth Judicial District; Lt. Gen. Charles Jacoby, Convening Authority, Ft. Lewis, Washington, Respondents. |
| Court | U.S. District Court — Western District of Washington |
James E. Lobsenz, Kenneth S. Kagan, Carney Badley Spellman, Seattle, WA, for Petitioner.
Brian C. Kipnis, US Attorney's Office, Seattle, WA, for Respondents.
ORDER ISSUING PRELIMINARY INJUNCTION OVER COURT MARTIAL PROCEEDING PENDING OUTCOME OF HABEAS CORPUS PETITION
This matter comes before the Court on Petitioner's Emergency Motion for a Stay of Court-Martial Proceedings (Dkt.2). Previously, the Court granted a temporary stay over the court martial proceeding referred by Respondent Jacoby and request ed additional briefing. The Court has considered the pleadings filed in support of and in opposition to the motion and the oral arguments of counsel, and hereby grants the motion for the reasons stated herein.
Petitioner filed for a writ of habeas corpus under 28 U.S.C. § 2241 on October 3, 2007. Dkt. 1. Petitioner requests to be released from all restraints imposed by his pending court martial charges, the court martial proceeding originally set to begin on October 9, 2007, on the basis that the proceeding violates the Double Jeopardy Clause of the Fifth Amendment. Id. On October 3, 2007, Petitioner also filed his Emergency Motion for a Stay of Court Martial Proceedings. Dkt. 2. After hearing oral argument from Petitioner and Respondents on October 4, 2007 and receiving additional briefing on the issue of jurisdiction, this Court entered an order temporarily staying Petitioner's court martial in order to allow the parties to brief the Motion for Stay. Dkt. 9. Once Petitioner's motion had been fully briefed, the Court extended the preliminary stay until November 9, 2007 in order to allow sufficient time to weigh the significant legal issues raised by the motion and to review the portions of the underlying record submitted by the parties. Dkt. 17.
Petitioner was charged with violating Articles 87 and 133 of the Uniform Code of Military Justice for allegedly refusing to deploy to Iraq on June 22, 2006 and making public statements, between May and August of 2006, expressing his views about the illegality of the war in Iraq. Dkt. 13 at 50. Petitioner wanted to present a defense to the charge of missing movement that concerned his intent:
[T]he question here is, whether or not that was his intent — his specific intent, because it's not just the general intent. It's a specific intent offense. That's what the Manual says. In this case, we will argue, as we've argued before, that his specific intent was to fail to participate in something, which he believed was unlawful and that therefore, would involve him [in] the commission of war crimes. And that is the intent element that exists here.
Dkt. 12 at 4. Petitioner argued that each soldier's subjective beliefs would determine whether that soldier should follow the order to deploy to Iraq.
That doesn't mean that's [sic] people who don't realize, or don't know what they are doing, have an obligation to refuse to go. But certainly, if one person is conscious, and knows, and full well understands the implications of what he or she is being ordered to do, and reaches the conclusion that that is unlawful, then that person is without an excuse or justification if he or she does it anyway.
Id. at 6. Before the court martial began, "the military judge ruled that, as a matter of law, the order to deploy was lawful, and that Petitioner was not allowed to present evidence on the legality of the war in Iraq or his motive for missing movement." Dkt. 11 at 4; Dkt. 12 at 32. The court martial was held on February 5-7, 2007. Dkt. 12 at 6. During the proceeding, Petitioner entered a plea of not guilty to all the charges and specifications. Id. at 7.
Petitioner and the Government entered into a pretrial agreement wherein the Government agreed to dismiss "Specifications 2 and 3 of Charge II without prejudice to ripen into prejudice upon completion of trial proceedings" in exchange for Petitioner entering into a Stipulation of Fact. Dkt. 14 at 9. The pretrial agreement allowed the nullification of the agreement upon the occurrence of three enumerated "events, the third being "the refusal of the military judge to accept the Stipulation of Fact." Id. at 10. Completion of the trial proceedings was explained as either Petitioner being found not guilty or the imposition or announcement of sentence. This definition was accepted by Petitioner. Dkt. 12 at 24.
The Stipulation of Fact admitted certain enumerated facts as true and contained reproduced written versions of the public statements Petitioner made expressing his beliefs about the illegality of the war. Dkt. 14 at 11-22. In the stipulation, Petitioner admitted as fact that "At approximately 1000 hours on 22 June 2006, 1L T Watada intentionally missed the movement of his flight to Iraq." Id. at 17. It further stated that "1 LT Watada intentionally did not board the aircraft and as a result, missed the movement of Flight Number BMYA91111173." Id. The stipulation also stated, `With this stipulation, however, the defense does not waive any future claim with regard to the motions and objections previously litigated." Id.
Before accepting the Stipulation of Fact, the military judge conducted an inquiry, asking Petitioner questions in order to discern his understanding. Dkt. 12 at 8. During this inquiry, the military judge stated as follows:
Lieutenant Watada, the government has the burden of proving beyond a reasonable doubt every element of the offenses to which you've been charged. By stipulating to the material elements of one of the offenses, as you are doing here, you alleviate that burden; that means, based upon the stipulation alone and without receiving any other evidence the court can find you guilty of the offenses to which the stipulation relates.
Do you understand?
Id. at 9. Petitioner responded that he did understand. Id. Petitioner, his counsel, and counsel for the Government agreed to the use of the stipulation. Id. at 9-10. The military judge then inquired into the factual basis for the Stipulation of Fact. With regard to Petitioner's intent to miss a movement, the military judge specifically asked, "What was your intent regarding the deployment of that aircraft?" Id. at 17. Petitioner responded as follows:
Sir, my intent, as I stated in public statements and as I stated to my chain of command numerous times, was that the order to deploy to Iraq to support combat operations in OIF was to me, as I believed in the facts and evidence that I saw, was an illegal order. And that the war itself was illegal, and any participation of mine would be contrary to my oath, and therefore I would have no other choice but to refuse. So my intent was to refuse the order, sir.
Id. The military judge replied: Id. Petitioner responded: "Yes, sir." Id. After some further questioning, the military judge asked if any further inquiry into the factual basis for the Stipulation of Fact was required. Id. at 22. The parties answered that the inquiry was sufficient. Id. After a discussion of the pretrial agreement, the military judge accepted the stipulation and entered it into evidence. Id. at 26.
The court martial then continued forward and preliminary instructions were given, voir dire occurred, and a panel (the military equivalent of a jury), was empaneled. Id. The Government proceeded with its case, presented evidence, the Stipulation of Fact was published and read to the panel. The panel then watched two videos attached to the Stipulation of Fact that showed Petitioner making the public statements reproduced in the stipulation. Dkt. 11 at 4-5. The military judge also instructed the panel members that, as a matter of law, "the order to deploy, if given, is lawful." Id. at 5. The Government then closed its case at 1546 on February 6, 2007. Dkt. 12 at 47.
The military court reconvened the next day. Id. Before counsel for Petitioner presented any evidence, Petitioner submitted a proposed jury instruction that contained the following language: "The evidence has raised the issue of mistake on the part of the accused concerning his belief that he had a legal and moral obligation to refuse to participate in the war in Iraq relating to the offenses of missing movement." Dkt. 11 at 5. The military judge expressed concern that this proposed instruction conflicted with the Stipulation of Fact and decided to reopen the inquiry into his acceptance of the stipulation. Dkt. 12 at 47. The military judge began by inquiring into the basis for the defense of mistake of fact and what element it went to. Id. at 48. Petitioner's counsel answered as follows:
It goes to the intent element; purely to the intent element. With respect to the missing movement charge, it has always been Lieutenant Watada's position that he intended not merely to miss movement, but to avoid participating in a war that he considered to be illegal, and that the orders to compel him to go to Iraq, in essence, were compelling him to put himself in a position where he would be supporting and engaging in war crimes.
So his specific intent, which is required by the offense, was not the mere intent to miss a movement, His intent, his state of mind, was of a different character, altogether. And, we have argued that repeatedly. We have also, as you know, in the stipulation, if you look at the last paragraph — sorry, the last sentence of the first paragraph, it says it there, and you approved this language, "With this stipulation; however, the defense does not waive any future claim with regard to the motions and objections...
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