HADITHA MASSACRE BY MARINES YIELDING LITTLE JUSTICE

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August 30, 2007

By PAUL von ZIELBAUER

CAMP PENDLETON, Calif., Aug.
29 — Last December, when the Marine Corps charged four
infantrymen with killing Iraqi civilians in Haditha, Iraq, in 2005, the
allegation was as dark as it was devastating: after a roadside bomb had
killed their buddy, a group of marines rampaged through nearby homes,
massacring 24 innocent people.

In Iraq and in the United States, the killings were viewed as
cold-blooded vengeance. After a perfunctory military investigation,
Haditha was brushed aside, but once the details were disclosed, the
killings became an ugly symbol of a difficult, demoralizing war. After
a fuller investigation, the Marines promised to punish the guilty.

But now, the prosecutions have faltered. Since May, charges against
two infantrymen and a Marine officer have been dismissed, and dismissal
has been recommended for murder charges against a third infantryman.
Prosecutors were not able to prove even that the killings violated the
American military code of justice.

Now their final attempt to get a murder conviction is set to begin,
with a military court hearing on Thursday for Staff Sgt. Frank D.
Wuterich, the last marine still facing that charge. He is accused of
killing 18 Iraqis, including several women and children, after the
attack on his convoy.

If the legal problems that have thwarted the prosecutors in other
cases are repeated this time, there is a possibility that no marine
will be convicted for what happened in Haditha.

Nor is it yet clear whether officers higher up the chain of command
than Sergeant Wuterich will be held responsible for the inadequate
initial investigation.

At least one of the four Marine officers charged last December for
failing to investigate the civilian deaths appears to be headed to
court-martial. That officer, Lt. Col. Jeffrey R. Chessani, commander of
Third Battalion, First Marines, “did not take personal action to
fully investigate the actions leading to civilian deaths,”
concluded Col. Christopher C. Conlin, the officer who examined the
evidence.

But the case against Capt. Randy W. Stone, the battalion lawyer
charged with failing to find out why so many civilians had been killed,
was thrown out by Lt. Gen. James N. Mattis, whose decisions in the
Haditha prosecutions are final. Charges against First Lt. Andrew A.
Grayson, an intelligence officer, are in limbo because of his argument
that the Marine Corps has discharged him.

In a wide range of cases involving abuses by American troops in Iraq
and Afghanistan, prosecutions have tended to focus on enlisted men and
noncommissioned officers — those accused of having personally
committed the acts — not on officers who commanded the units. And
while there have been numerous convictions, there have also been many
cases in which plea arrangements allowed for lesser punishments, or in
which charges were dropped or found not to be warranted.

The sole officer to face criminal charges in the abuses of prisoners
at Abu Ghraib, Iraq, was convicted Tuesday on only one minor charge and
will be reprimanded, Reuters reported, quoting an Army announcement.
The officer, Lt. Col. Steven L. Jordan, faced five years in prison and
dismissal from the Army, but a court-martial decided on the milder
penalty, the Army said.

The court-martial acquitted him of the charge of being responsible for cruel treatment of detainees at Abu Ghraib.

Experts on military law said the difficulty in prosecuting the
marines for murder is understandable, given that action taken in combat
is often given immunity under the Uniform Code of Military Justice.

“One could view this as a case crumbling around the
prosecutor’s feet, or one could see this as the unique U.C.M.J.
system of justice in operation,” said Gary D. Solis, a former
Marine judge who teaches the laws of war at Georgetown University Law Center and at West Point.

Prosecuting the Haditha case was especially difficult because the
killings were not thoroughly investigated when they first occurred.
Months later, when the details came to light, there were no bodies to
examine, no Iraqi witnesses to testify, no damning forensic evidence.

On the other hand, some scholars said the spate of dismissals has
left them wondering what to think of the young enlisted marines who,
illegally or not, clearly killed unarmed people in a combat zone.

“It certainly erodes that sense that what they did was
wrong,” Elizabeth L. Hillman, a legal historian who teaches
military law at Rutgers University
School of Law at Camden, said of the outcomes so far. “When the
story broke, it seemed like we understood what happened; there
didn’t seem to be much doubt. But we didn’t know.”

Walter B. Huffman, a former Army judge advocate general, said it was
not uncommon in military criminal proceedings to see charges against
troops involved in a single episode to fall away under closer
examination of evidence, winnowing culpability to just one or two
defendants.

When Sergeant Wuterich, the soft-spoken squad leader who faces the
most extensive murder charges in the Haditha matter, walks into court
here on Thursday, “all the prosecutorial attention is now going
to center on him,” Mr. Solis said.

Sergeant Wuterich’s lawyers have an uphill legal fight. First,
unlike the other marines who faced murder charges, Sergeant Wuterich is
charged with the close-range killing of five unarmed men who were
ordered out of a vehicle that rolled up near the scene.

Also, as a noncommissioned officer and the ranking member of the
squad, Sergeant Wuterich may be used by prosecutors to argue that he
had a greater responsibility to discern proper targets and avoid
civilian casualties. He also led the attack against or was present in
every house where civilians were killed.

But the earlier cases show that the defense has some opportunities, too.

The presiding officer, Lt. Col. Paul J. Ware, is the same Marine
lawyer who conducted hearings for Justin L. Sharratt and Stephen B.
Tatum, two other lance corporals accused of killing a total of five
Iraqis in three homes in Haditha.

Colonel Ware later recommended dismissing the charges against those
two men, and he has said the killings should be viewed in the context
of combat against an enemy that ruthlessly employs civilians as cover.
He warned that murder charges against marines could harm the morale of
troops still in Iraq.

General Mattis’s statements expressing sympathy for the plight
of other enlisted marines whom he cleared of wrongdoing in Haditha may
indicate his willingness to see Sergeant Wuterich’s case in a
similar light.

Regardless of what happened to charges against the other defendants,
there is still great public pressure on the Marine Corps to investigate
and punish any wrongdoing in a case in which so many civilians died.

“We can’t say those guys didn’t commit a
crime,” said Michael F. Noone Jr., a retired Air Force lawyer and
law professor at Catholic University of America. “We can only say
that after an investigation, there was not sufficient evidence to
prosecute.”

Marines’ Trials in Iraq Killings Are Withering – New York Times

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