I won't recount the year old history of the case, which CAAFlog has covered on four prior occasions (1, 2, 3, and 4). However, the collective CAAFlog reaction to an Art. III court intervening in an on-going court-martial case is best summed up with a quote from my learned and eloquent CAAFlog colleague DHS, "Holy Cow!!!"
On the merits, the Judge's reasoning looks destined for appeal and a showdown over Schlesinger v. Councilman, 420 U.S. 738 (1975) (doctrine of equitable jurisdiction and abstention). This summary seems particularly a subject for attack under Councilman, particularly in light of the Court allowing the government to proceed on two other charges
Therefore, the Court’s assertion of jurisdiction over Petitioner’s double jeopardy claims on Charge I and Charge II, Specifications 1 and 4 is proper because Petitioner has exhausted his available remedies in the military courts and Petitioner would suffer great harm if the Court declined to intervene prior to the convening of the court-martial.
Judge Settle ruled that the government could re-try Watada on two conduct unbecoming charges that were dismissed "without prejudice to ripen into prejudice upon completion of trial proceedings." Since the plea proceedings were never completed, the Court reasoned, there is no double jeopardy issue. Amazingly, Judge Settle even leaves the door open for Watada to return to the Art. III courts should the military decide to retry him on these two charges. See Watada, No. C07-5549BHS, slip op. at 18.