By GENE JOHNSON, AP LEGAL AFFAIRS WRITER

Seattle Post Intelligencer, Oct 3, 2008 

SEATTLE -- A Fort Lewis soldier charged with refusing to deploy to Iraq asked a federal court on Wednesday to bar his upcoming court-martial, saying that the Army is violating his constitutional rights by trying him twice for the same crime.

First Lt. Ehren Watada is accused of missing his unit's deployment in June 2006 and of conduct unbecoming an officer for making public comments denouncing President Bush and the Iraq war. If convicted, he could be sentenced to six years in prison and be dishonorably discharged.

"This is a remarkably clear case of an egregious violation of the double-jeopardy clause," Watada's lawyers, James Lobsenz and Kenneth Kagan, wrote in an emergency motion to block the court-martial, scheduled to begin Tuesday.

Watada contends the war is illegal and that he would be party to war crimes if he served in Iraq. The Army, which refused his request to be posted in Afghanistan or elsewhere, declared his first court-martial a mistrial in February, over the lieutenant's objections.

The Army Court of Criminal Appeals has ruled that Watada can be court-martialed again, but Watada appealed that decision to the U.S. Circuit Court for the Armed Forces, which has not ruled, his attorneys wrote. With the court-martial about to start, Watada urgently needs the federal court to step in, they said.

Watada's attorneys also asked that he be allowed to leave the Army. Watada's term of service ended in December, but the pending legal proceedings have prevented his discharge. He lives in Olympia and continues to perform administrative duties at Fort Lewis, south of Seattle.

"The only reason he's still in the Army is that the Army will not let him leave while there's discipline pending," Kagan said.

"The government has followed the law and rules throughout the process of bringing this case to trial," the Army said in a statement released by Fort Lewis spokesman Joe Piek. "The U.S. Army Court of Criminal Appeals in Balston, Va., determined that this case was not prohibited by double jeopardy and may properly proceed to trial. The Court issued its ruling after considering comprehensive briefs and arguments from the parties."