A trying year for Marine Corps [Hamdania, Haditha, Fallujah]

North County Times ^ | December 29, 2007 | Mark Walker

[RedRover]

CAMP PENDLETON - On the legal front, the last 12 months have been a trying time for the Marine Corps.

While most troops went about the business of training and deploying to battlegrounds in Iraq and Afghanistan or spent months on expeditionary cruises, a series of hearings and trials involving men accused of committing murder or being derelict in duty in Iraq dominated much of the news coming out of Camp Pendleton, the service's premier West Coast base.

It was also a year in which the service cracked down on drill instructors at the Marine Corps Recruit Depot in San Diego, charging four with abusing enlistees.

At year's end, the service was dealing with yet another high-profile homicide case, this one alleging that current and former Marines murdered four insurgent captives during a fight for the city of Fallujah in November 2004.

Each case involves battlefield decisions. The cases have also raised issues surrounding the rules of engagement, the fog of war and whether anti-war politics in Washington influenced the decisions that led to criminal charges against the troops.

Taken together, the cases caused some to question whether the Corps was somehow losing its grip on its creed of honor.

Not so, say Marine commanders, who nonetheless were ordered by Commandant Gen. James Conway to conduct a unit-by-unit refresher in the laws of war.

Gary Solis, a military law professor at Georgetown University and a recognized scholar on the subject, said in an interview that he does not believe the Marine Corps has lost its way. But he and others said they do worry about the impact the prosecutions may be having on troops in the field.

"The prosecutorial focus has been centered on the Marine Corps, but that does not suggest it is out of control or has more lawbreakers than other branches of the service," Solis said. "Instead, it reflects a very aggressive approach the Marine Corps has taken to these kinds of charges.

"It does, however, set a high bar and we have to be careful that the aggressive approach does not become a case of eating our young."

The cases

The three cases generating the most notoriety involved incidents that took place in Iraq's dangerous Anbar province.

One case stemmed from an incident in the rural village of Hamdania northwest of Baghdad. Seven Camp Pendleton Marines and a Navy corpsman were charged with murder and related offenses in the April 2006 kidnapping and killing of a 57-year-old retired Iraqi policeman.

Only one of the men, squad leader Sgt. Lawrence Hutchins III, remains in jail, convicted of murder and sentenced by a Camp Pendleton military jury to 15 years behind bars.

The men he led either served out the terms they agreed to in plea deals or had their sentences commuted by then-Lt. Gen. James Mattis.

Mattis ordered the men below Hutchins' rank released after a jury found Cpl. Trent Thomas guilty for his role in the incident but limited his sentence to time already served. In releasing the others, Mattis determined that Thomas' sentence created an unfair disparity for his squad mates still behind bars.

Haditha

The Haditha case involved four enlisted men accused of murder in the death of 24 civilians following a roadside bombing in November 2005.

Four officers were charged with dereliction of duty for failing to investigate a suspected war crime at Haditha, and three others received career-ending letters of censure from the secretary of the Navy.

At the end of hearings to determine if the charges against each of those Camp Pendleton-based men should go to trial, the Marine Corps withdrew murder charges against one enlisted man and the dereliction charges for two of the officers. Murder charges against another were withdrawn in exchange for his testimony.

One enlisted man, Lance Cpl. Stephen Tatum, and one officer, the battalion commander at Haditha, Lt. Col. Jeffrey Chessani, have been ordered to trial for the Nov. 19, 2005, killings at Haditha. Decisions in the cases of a third officer, 1st Lt. Andrew Grayson, and the squad leader at Haditha, Staff Sgt. Frank Wuterich, are pending.

Fallujah

The Fallujah case has led to involuntary manslaughter charges against one former Marine based at Camp Pendleton, Jose Nazario Jr., and murder and dereliction of duty charges against an active-duty Marine, Sgt. Jermaine Nelson.

Attorneys for each man say they will vigorously contest the accusations and point out there are no complaining Iraqis, no bodies and no identities of the alleged victims. The case is instead based on interviews with some of the men in the squad Nazario led, statements that have not been made public.

The Fallujah case will also test the Military Extraterritorial Judicial Act and the legality of a civilian prosecutor charging a former serviceman with a crime on a battlefield.

Nazario's attorney, Kevin McDermott, said in a recent interview that civilians with little or no military knowledge may now have to decide appropriate battlefield conduct.

"It's one thing to have senior military officers and investigators decide there are issues on a battlefield that need to be examined," McDermott said. "We could now be asking civilians to issue their own second-hand opinions."

Issues and impacts

The Haditha case is the largest prosecution of a group of U.S. troops since the March 2003 invasion of Iraq.

Coupled with Hamdania and now Fallujah, the prosecutions are sending a dangerous message, according to David Brahms, a former Marine Corps general who once was the service's chief legal officer.

"We are creating a mind-set in our troops and our commanders that has the potential to make them tentative on the battlefield," said Brahms, who represented a lance corporal in the Hamdania case. "The next benefit Congress ought to give is to provide legal insurance to all combat commanders so they can hire themselves a civilian attorney."

At the same time, Brahms acknowledged that in the Hamdania case, there was reason to believe the Marines and corpsman went outside the norm and proper behavior when they seized a man they believed was tied to the insurgency and responsible for attacks against them.

"But are these cases a permanent blot on the Marine Corps? I don't think so," he said. "Sometimes people make bad decisions, but that is in part the nature of the combat environment."

In the Haditha case, Lt. Col. Paul Ware presided over hearings for the three enlisted men charged with murder; he wrote extensively in his reports about his view of whether sufficient evidence had been demonstrated to win a conviction. In each case, he suggested there was ample room for a military jury to acquit the men.

Scott Silliman, a Duke University law professor and another recognized military law expert, told a conference in October that Ware, who was picked by Lt. Gen. Mattis to hear the cases, went beyond his responsibilities as a hearing officer in commenting on the evidence. Instead, Silliman said, Ware's only job was to determine if there was sufficient evidence to believe a crime may have been committed.

Solis, however, said he thinks Ware acted appropriately.

"He clearly had a strong belief and expressed it," Solis said of Ware's writings. "It may be unusual, but it's not wrong."

Also wrong, Solis said, would be if outsiders concluded that the number of men originally charged in the Haditha matter and since exonerated suggests a predetermined outcome. The pretrial hearings in the military justice system are in effect mini-trials where all the prosecution evidence is laid out. If that evidence is lacking, cases should not move on to trial, he said.

"The military system is separate and distinct from the civilian system," he said. "It serves different needs and sometimes has different imperatives. Those who have not sat through these hearings should be wary of criticizing the outcome."

Thad Coakley, a former Marine Corps attorney who served as a legal officer in Haditha before the civilian killing incident, said he is sometimes frustrated in watching the various legal cases unfold at Camp Pendleton.

"It's the manner in which some people are using them to support their political opinions and talking about the cases in very uneducated ways," he said.

In the end, however, Coakley said the cases do serve as a lesson for present and future Marines.

"No one has more of an interest in keeping their honor clean than the Marine Corps," he said. "Hopefully, at the end of the entire process, there will be enough facts for the commonsense American to understand what happened and why and be satisfied with the outcomes, whatever they may be."

The drill instructors

Far from the battlefield, the Marine Corps also sent a strong signal to its cadre of drill instructors, charging four of them with abusing recruits at the recruit depot in San Diego.

One, Sgt. Jerrod Glass, was convicted by a military jury of cruelty and mistreatment and sentenced to six months behind bars and a dishonorable discharge.

Two others, Sgts. Robert Hankins and Brian Wendel, also were charged with assault, maltreatment and dereliction of duty. Wendel was found guilty of dereliction of duty and violating an order but acquitted on assault and maltreatment charges. Hankins' case was pending as of mid-December.

Glass recently said that the training and acts he and his fellow instructors allegedly engaged in were nothing new.

"Recruit training is not being conducted any differently than it was before," he said in a recent interview with The Associated Press. "It's not like all of the sudden this is happening. I think it has to do with the Marine Corps not wanting to admit to the public what it takes to train somebody ... to go to war."

Glass said his only motivation to testify was to bring to light to what he said were long-standing training practices.

"I just want the Marine Corps to say, this is the way we conduct our recruit training so the individuals, and by individuals I mean drill instructors, aren't singled out," he said. "I'm not trying to force anything on Hankins and Wendel. I'm just going in to say what happened."

Glass was convicted of, among other charges, ordering a recruit to jump into a trash can, hitting others with a flashlight and routinely destroying enlistees' personal property.

In an interview with the North County Times at his Pentagon office in October, Marine Commandant Gen. James Conway also said the drill instructor cases were "unfortunate," but a necessary step.

"There's only one way to teach recruits, and that's to demonstrate the right kind of leadership skills that you want them to use as a model for the rest of their time as a Marine."

[RedRover]

Key dates in cases against Camp Pendleton troops

By Mark Walker, North County Times

Fallujah case

Nov. 9, 2004: Four detained insurgents allegedly killed by a Camp Pendleton squad.

Nov. 19, 2006: Naval Criminal Investigative Service probe begins.

Aug. 16, 2007: Former Marine Sgt. Jose L. Nazario Jr. charged by civilian prosecutors in U.S. District court with two counts of involuntary manslaughter.

Aug. 20, 2007: Murder charge filed by Marine prosecutors against Sgt. Jermaine Nelson.

Sept. 12, 2007: Charges against Nelson withdrawn by the Marine Corps pending review of investigation.

Dec. 6, 2007: Murder charge and dereliction of duty filed against Nelson by the Marine Corps.

Haditha case

Nov. 19, 2005: A four-vehicle convoy containing U.S. service members from 1st Squad, 3rd Platoon, K Company, 3rd Battalion, 1st Marine Regiment, 1st Marine Division and Iraqi forces encounter a roadside bomb and small-arms fire ambush near Haditha, Iraq. One U.S. Marine was killed and two wounded. Twenty-four civilians killed by Marines searching for their attackers.

Nov. 20, 2005: Military issues news release stating that 15 civilians were killed by an improvised explosive device and that U.S. Marines and Iraqi forces killed eight insurgents in the ensuing firefight.

Jan. 24, 2006: Time Magazine reporter contacts the Multi-National Force-West (2nd Marine Division) public affairs officer, claiming he is investigating the deliberate killing of civilians during an incident in Haditha, Iraq, on Nov. 19, 2005.

Feb. 14, 2006: Multi-National Corps - Iraq directs an investigation concerning the circumstances of the civilian deaths.

March 12, 2006: Naval Criminal Investigative Service investigation launched into possible criminal conduct.

Dec. 21, 2006: Murder and related charges against four Marine enlisted men are announced. Dereliction of duty and related charges against four Marine officers for their failure to properly report and/or investigate the deaths also announced in briefing at Camp Pendleton.

April 2, 2007: Murder charges against Sgt. Sanick Dela Cruz dismissed in exchange for his testimony.

Aug. 8, 2007: Murder charges against Lance Cpl. Justin L. Sharratt dismissed after finding he acted within rules of engagement.

Aug. 9 2007: Dereliction of duty charges against Capt. Randy W. Stone dismissed.

Aug. 30-Sept. 6, 2007: Article 32 hearing for enlisted men squad leader at Haditha, Staff Sgt. Frank Wuterich. Result pending.

Sept. 12, 2007: Dereliction charges against Capt. Lucas M. McConnell dismissed.

Oct. 19, 2007: Lance Cpl. Stephen Tatum ordered to trial by court-martial in homicide and related charges.

Oct. 19, 2007: The battalion commander at Haditha, Lt. Col. Jeffrey R. Chessani, ordered to trial by court-martial for dereliction of duty.

Nov. 13-17: Article 32 hearing for 1st Lt. Andrew Grayson conducted. Result pending.

Hamdania case

April 26, 2006: Hashim Ibrahim Awad taken from his home and killed.

May 2006: Complaints from Awad's relatives result in investigation.

May 25, 2006: Seven Marines and one Navy corpsman placed in Camp Pendleton brig.

June 24, 2006: All eight troops are charged with murder, kidnapping, conspiracy and other offenses for Awad's death.

Oct. 6, 2006: Corpsman Melson Bacos pleads guilty to kidnapping and conspiracy. Murder charges are dropped.

Nov. 17, 2006: Lance Cpl. Tyler Jackson sentenced to 21 months in jail for conspiracy and aggravated assault.

Nov. 18, 2006: Pvt. John Jodka sentenced to 18 months in jail for conspiracy and aggravated assault.

Nov. 22, 2006: Lance Cpl. Jerry Shumate sentenced to 21 months for conspiracy and aggravated assault.

Feb. 17, 2007: Lance Cpl. Robert Pennington sentenced to eight years in prison after pleading guilty to murder and related offenses.

July 21, 2007: Cpl. Trent Thomas sentenced to time served after military jury convicts him of kidnapping and conspiracy to commit murder.

Aug. 2, 2007: Lance Cpl. Marshall Magincalda sentenced to time served after being convicted of conspiracy to commit murder.

Sgt. Lawrence Hutchins II sentenced to 15 years in prison after being convicted of murder.

Aug. 8, 2007: Lt. Gen. Hames Mattis orders early release of now-Pvts. Shumate and Jackson.

Aug. 10, 2007: Lt. Gen. James Mattis orders early release of now-Pvt. Robert Pennington.

[Just A Nobody]

Thank you for posting this and for your concise list of events.

the prosecutions are sending a dangerous message

Yes they are. "Win the War" should be the only message

[freema]

Scott Silliman, a Duke University law professor and another recognized military law expert, told a conference in October that Ware, who was picked by Lt. Gen. Mattis to hear the cases, went beyond his responsibilities as a hearing officer in commenting on the evidence. Instead, Silliman said, Ware's only job was to determine if there was sufficient evidence to believe a crime may have been committed.

That's rich.

[freema]

/sarc

[RedRover]

Looking back over 2007, the outstanding individual who deserves the most applause for his defense of our Marines is Phil Brennan of NewsMax.

Long-time Haditha watchers will remember how bleak things looked a year ago. After charges were announced on December 21, there were a series of leaks damning the Marines.

It was Phil Brennan who struck back with Haditha Accusations Unmasked and other NewsMax articles beginning in late January that brought much needed perspective and accuracy (imagine that!) to the situation.

Additionally, it was through Phil Brennan's efforts at NewsMax that more than $200,000 was raised for the enlisted Marine defense funds.

For those reasons, Phil Brennan is the Defend Our Marines Man of the Year!

[RedRover]

Looking back over 2007, the outstanding individual who deserves the most applause for his defense of our Marines is Phil Brennan of NewsMax.

Long-time Haditha watchers will remember how bleak things looked a year ago. After charges were announced on December 21, there were a series of leaks damning the Marines.

It was Phil Brennan who struck back with Haditha Accusations Unmasked and other NewsMax articles beginning in late January that brought much needed perspective and accuracy (imagine that!) to the situation.

Additionally, it was through Phil Brennan's efforts at NewsMax that more than $200,000 was raised for the enlisted Marine defense funds.

For those reasons, Phil Brennan is the Defend Our Marines Man of the Year!

[Brad from Tennessee]

Our flag’s unfurled to every breeze
From dawn to setting sun;
We have fought in ev’ry clime and place
Where we could take a gun;
In the snow of far-off Northern lands
And in sunny tropic scenes;
You will find us always on the job—
The United States Marines.

[RedRover]

Sorry about the double ping! My ‘puter got stuck in the “post” cycle.

[RedRover]

For more on Phil Brennan, see this thread: And the Party Goes On [Happy Birthday, Phil Brennan: Journalist, Conservative, Marine!].

[lilycicero]

In the end, however, Coakley said the cases do serve as a lesson for present and future Marines

[Just A Nobody]

and another recognized military law expert

Recognized by whom? (or is it who?)

[Dick Vomer]

All this is, is showing the after action reports on the legal war against the Marines fought by the press, the libs and the other low life parasites that want to destroy the Marines fighting ability by introducing doubt at a critical time in a battle.

Don't ping me, don't reply to me about the sanctity of the legal system, don't try to convince me otherwise cause I've read the reports, I've served in combat, I've made decisions that lead to deaths of the enemy and others.

I've also got faith in the "system". It's just a cr#ppy way to treat a man that was willing to give his life for his country to be sold out by reporters, JAG ticket punchers, liberals, jihadist propaganda fighters and the rest of the democrat party like psuedo-Marine Murtha. (may he rest in a special sewer in hell)

[Dick Vomer]

Thank you Phil Brennan and thanks Rover for your posts.

[RedRover]

My pleasure, Dick. Happy New Year to you!

[bray]

Our men are fighting a War, let them fight.

Pray for W and Our Marines

[freema]

I think in this case it’s ho.

Nifong, perhaps.

[Girlene]

Gary Solis, a military law professor at Georgetown University and a recognized scholar on the subject, said in an interview that he does not believe the Marine Corps has lost its way. But he and others said they do worry about the impact the prosecutions may be having on troops in the field. ...

.....and we have to be careful that the aggressive approach does not become a case of eating our young."

Seems even Gary Solis is realizing the full impact of all these prosecutions.

[Just A Nobody]

LOL! I agree!

[lilycicero]

If it is true “you are what you eat”...then Solis is a waffle.

[NormsRevenge]

Phil Brennan is the Defend Our Marines Man of the Year!

—

Sounds good to me.

Semper Fi