So it turns out that there are still honest, thinking judges in the federal court system who take their Constitution seriously, despite seven years of Bush administration court packing (and years more of such packing under two prior Republican presidents).
The first sign of Constitutional life in the federal system came on October 5, when the Ninth Circuit Court of Appeals in California issued an emergency injunction against the National Aeronautics and Space Administration (NASA), saying the space agency “could not require Jet Propulsion Laboratory scientists and engineers holding non-sensitive positions to sign waivers of their privacy rights.” As lawyers for the scientists put it, “If the Court had not issued this injunction, thousands of scientists would have had to choose between waiving their privacy rights and keeping their jobs.”
Scientists at JPL and at Goddard Space Flight Center in Maryland, which was also facing the waivers, had been picketing their worksites, getting the staff to agree to hold off on submitting to the invasive security check. Some of these protesting scientists have said that the heavily politicized leadership of NASA is trying to take a scientific agency that by law only does public research that is meant to be available to all, and clamp a lid on their work—largely in order to quash word about evidence of global warming.
None of the scientists at NASA are involved in national security work, and there is no reason for them to be subjected to national security scrutiny.
“We are grateful for the court’s action. This is another egregious example of the Bush Administration’s assault on the Constitution. Our clients are exemplary employees who have spent their work lives bettering this Country. This shows the court will not stand by and let this attack on the right to privacy take place,” said Dan Stormer of Hadsell & Stormer, the civil liberties law firm in Los Angeles that is representing the scientists at NASA.
“We are ecstatic,” said Robert Nelson, an astronomer who works on the Cassini space probe project, and an organizer of the protest against the security-screening program.
A second defense of Constitutional rule came the same day, when US District Judge Benjamin H. Settle in Seattle, WA took the unusual step of intervening in a military proceeding, ordering a halt to the second attempt by the Army to court-martial Lt. Ehren Watada, while he considers the merits of Lt. Watada’s claim that he is being subjected to double jeopardy by being re-court-martialed a second time.
Watada, who in June, 2006 refused orders to ship out to Iraq with his Stryker brigade, claiming that it was an illegal war and that it would subject US military participants to participating in war crimes, made his argument last February at a court-martial proceeding that ended in a mistrial when the military and the military trial judge realized that the young lieutenant was winning his case. Rather than risk losing on a claim of the Iraq War’s legitimacy, the judge in the prosecution sought, and the hearing officer granted a mistrial.
However, under established precedent, all the way to the US Supreme Court, it has been accepted that it is not appropriate for prosecutors to declare mistrials and then seek another trial, for the obvious reason that prosecutors would always resort to such a tactic if they found themselves in danger of losing a case. Only when the defense wins a mistrial ruling can the prosecution seek a second trial.
Precedent notwithstanding, the Army decided it couldn’t let Lt. Watada walk away from the war claiming it is illegal, so it has attempted to court-martial him again.
Having taken the unusual step of injecting the civilian legal system into this case of military justice, Judge Settle made it clear not only that he was confident that he had jurisdiction in the case, but that Lt. Watada had a good argument. "The irreparable harm suffered by being put to a trial a second time in violation of the double jeopardy clause of the Fifth Amendment stems not just from being subjected to double punishment but also from undergoing a second trial proceeding," Settle wrote in quoting case law,” he wrote.
Watada had appealed within the military system, but had received no answer from higher military authorities to his call for a second court-martial to be blocked.
The Army has been given until October 16 to present its arguments to the judge justifying a second court-martial.
The Army had apparently been hoping that media interest in the Watada case had faded away, and that he could be quietly convicted of a charge of refusing to deploy, and packed off to the brig. But Judge Settle’s order has scuttled that plan.
The gutsy Watada himself has also refused to be quiet. Earlier this year, at a Veterans for Peace convention, with dozens of Iraq War vets standing by him, he called on other soldiers to take a stand against the war saying:
"Today, I speak with you about a radical idea. It is one born from the very concept of the American soldier (or service member). It became instrumental in ending the Vietnam War - but it has been long since forgotten. The idea is this: that to stop an illegal and unjust war, the soldiers can choose to stop fighting it...
"I tell this to you because you must know that to stop this war, for the soldiers to stop fighting it, they must have the unconditional support of the people. I have seen this support with my own eyes. For me it was a leap of faith.
"For other soldiers, they do not have that luxury. They must know it and you must show it to them. Convince them that no matter how long they sit in prison, no matter how long this country takes to right itself, their families will have a roof over their heads, food in their stomachs, opportunities and education."
DAVE LINDORFF is a Philadelphia-based investigative journalist and columnist. His latest book, co-authored by Barbara Olshansky, is “The Case for Impeachment” (St. Martin’s Press, 2006). His work is available at www.thiscantbehappening.net