updated 10/5/2007 8:59:33 PM ET 2007-10-06T00:59:33

A federal court judge has temporarily blocked a court-martial scheduled to start Tuesday for an Iraq war objector based at Fort Lewis.

First Lt. Ehren Watada is charged with refusing to deploy to Iraq. His lawyers argue the Army is violating his constitutional rights by trying him twice for the same crime.

U.S. District Judge Benjamin Settle ruled he has jurisdiction to issue the stay and that Watada's double-jeopardy claim is not frivolous.

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.

Watada has said the war is illegal and that he would be party to war crimes if he served in Iraq.

First court-martial declared a mistrial
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.

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 Ballston, 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.”

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