The court-martial of Army Lt. Ehren Watada for refusing deployment to Iraq could be held up a year or more by constitutional challenges, several prominent criminal defense lawyers said.

On Wednesday, a military judge in Fort Lewis, Wash., Lt. Col. John Head, ordered a mistrial in Watada's case and tentatively scheduled a new trial to begin March 19.

Eric Seitz, Watada's attorney, said he plans to seek dismissal of the charges on the grounds of double jeopardy. If military judges reject that argument, Seitz said he's prepared to appeal the case all the way to the U.S. Supreme Court.

"There's clearly a double jeopardy problem," Seitz said.

Watada, a 1996 Kalani High School graduate, made international headlines when he refused to be deployed in Iraq and called the war illegal. The 28-year-old Watada was charged with one count of missing a troop movement and two counts of conduct unbecoming an officer for his public statements.

Watada was assigned to administrative work at Fort Lewis after his unit deployed and is barred from traveling more than 250 miles from base.

Howard Luke, a local criminal defense lawyer who has handled military court-martial cases, believes that Seitz's double jeopardy argument carries weight.

In Watada's court-martial, the mistrial was declared over the objection of Watada's lawyers.

In such cases, a defendant can only be retried if there was a "manifest necessity," meaning there was no viable alternative for a fair trial other than aborting the court-martial, Luke said.

What's more, the mistrial was declared after a jury was seated and the government presented its witnesses and arguments. Once a trial goes that far, the defendant is considered to be in "legal jeopardy," meaning that prosecutors would be barred from bringing the same case a second time, Luke said.

"To me it looks like it should be over," said Luke. "If I were in the shoes of the prosecution, I would not be confident in getting a new trial."

Whether Watada is successful in getting the case dismissed, it could take a year for his appeal to work its way through the Army appeals court, added Earle Partington, a local criminal defense lawyer who has handled hundreds of court-martial cases. Partington said he knows of cases that have been pending three to five years.

Once the Army appeals court rules, it could take another four months before the armed forces appeals court decides to take the case. And if it takes the case, it could be another six months to a year before a decision is reached. In addition, the armed forces appeals court decision could then be appealed to the U.S. Supreme Court, Partington said.

"This is not going to be resolved very quickly," Partington said.

Military prosecutors said earlier this week that they are free to pursue the three charges against Watada and may reinstate two others that were dismissed before the trial started.

Eugene Fidell, president of the National Institute of Military Justice in Washington, D.C., believes that the constitutional challenges will ultimately fail.

Fidell said Watada's attorneys will also have to show that the military judge abused his discretion in declaring a mistrial, which is a difficult thing to do.

Fidell believes that the military wants to make an example out of Watada.

He added that the military can get around the double jeopardy problem by ordering Watada to go back to Iraq, resulting in new court-martial charges.

"We would simply start this movie again," he said. "I think they would want to make this hurt and make it very clear you can't do this and expect to get a medal or a ticket home."

Jay Fidell, a local attorney and former military judge, believes the stakes are too high for the Army to back down.

"The military cannot afford to let it go because of national policy," said Jay Fidell, who is Eugene Fidell's brother. "What kind of armed force do you have ... if every soldier can make up their mind whether a war is legal or not?"

Reach Rick Daysog at rdaysog@honoluluadvertiser.com.