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Saturday, February 24, 2007 - Page updated at 12:00 AM

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Army refiles Watada charges

Seattle Times staff reporter

Undaunted by an initial mistrial, the Army on Friday refiled charges against 1st. Lt. Ehren Watada, a Fort Lewis officer who faces up to six years in prison for failing to deploy to Iraq and alleged misconduct.

"These are serious charges, and the next step will be to set a trial date," said Joe Piek, a spokesman at Fort Lewis, where Watada continues to serve as an active-duty officer.

Watada is the first Army officer to face court-martial for refusing to serve in Iraq, and his case has drawn international attention as the Hawaiian-born officer has allied himself with peace groups and repeatedly attacked the Bush administration's conduct of the war.

Watada's defense counsels are hoping to derail or at least delay a new trial, which they claim constitutes double jeopardy that violates Watada's constitutional rights to only be tried once for a set of crimes.

The defense counsels appeared caught by surprise by Friday's re-filing of charges.

"They appear anxious to get him into jail as soon as possible," said Eric Seitz, Watada's civilian defense counsel.

Seitz said he will seek a Fort Lewis hearing to make a case for double jeopardy. If unsuccessful, he will appeal to military courts and then to federal courts.

The first court-martial ended in mistrial Feb. 7 when a judge rejected a pretrial agreement.

In that agreement, Watada said that he had indeed missed his brigade's June deployment to Iraq, and made a series of public statements against the war. In return, Army prosecutors dropped several counts that knocked two years off a maximum six-year sentence.

Three days into the trial, the judge, Lt. Col. John Head, questioned the agreement.

The judge said the agreement was essentially an admission of guilt about missing the troop movement. Watada did not share that view, saying he still had a defense -- that the war was illegal and he was duty-bound by his officer's oath to disobey an illegal order to deploy.

"I'm not seeing we have a meeting of the minds here," Head said. "And if there is not a meeting of the minds, there's not a contract."

By the time the judge rejected the agreement, it already had been distributed to a jury panel of officers who were charged with determining Watada's guilt or innocence. So the prosecution, rather than continue the case, asked for a mistrial.

At the time, Head said he wanted to schedule the case for mid-March -- presuming charges were refiled -- and move it to the top of the docket.

Seitz said he had other trial commitments and could not be available that soon.

Friday, Seitz said Watada's military defense counsel, Capt. Mark Kim, also would have a problem making a March trial date. Currently, Kim is not on active duty and has resumed a civilian job.

During the first trial, Seitz repeatedly clashed with Head, at one point balking at the judge's order to sit down.

Piek said Head may preside over a second Watada trial.

If no new pretrial agreements are reached, the prosecution might have to prove in court that Watada actually made all the statements that the Army alleges as officer misconduct. That could involve an Army effort to subpoena journalists who reported Watada's statements.

Hal Bernton: 206-464-2581 or hbernton@seattletimes.com

Copyright © The Seattle Times Company

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