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

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 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.

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.

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."

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.

"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."

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."

In today's North County Times...

Haditha and Fallujah cases on the 2008 docket

CAMP PENDLETON ---- The first trials in charges arising out of the slaying of 24 men, women and children in the Iraqi city of Haditha are set to take place at Camp Pendleton in 2008.

The two Marines whose cases are headed before a jury are Lt. Col. Jeffrey Chessani and Lance Cpl. Stephen Tatum. They may be joined by the squad leader at Haditha, Staff Sgt. Frank Wuterich, who has been recommended to face trial on seven counts of negligent homicide.

Chessani, 44, stands accused of failing to accurately report and investigate a possible violation of the laws of war by Marines under his command. The veteran of three Iraq deployments and recipient of the Bronze Star medal faces up to 30 months in prison and a dismissal from the service if convicted. His trial is scheduled to begin April 28.

One of Chessani's attorneys, Brian Rooney, said in a recent interview that the defense will press its long-standing argument that the Haditha prosecutions are not driven by simple demands of justice.

"We are going to file a motion alleging undue command influence," Rooney said, citing statements from politicians such as U.S. Rep. John Murtha, D-Pa., who said after the killings came to light that the Marines had killed in "cold blood" and that commanders attempted to cover up the incident.

"We also think there was undue command influence by top Marine Corps officers that affected how the case was investigated and eventually charged," he said.

That motion is set be heard Feb. 15.

Rooney said the defense also will seek to have the case thrown out because Chessani's due process rights would be violated by what he called the impossibility of finding an untainted jury of Marines to hear the case.

"People throughout the Marine Corps have made judgments about Haditha and are now passing that down in classrooms," he said. "That calls into question if we can ever seat an impartial jury."

Marine Corps prosecutors say they will not comment on pending cases.

During a hearing this summer that resulted in Chessani being ordered to court-martial, his attorneys argued that he wasn't the only senior Marine officer who didn't order an investigation into the Haditha killings.

One of those senior officers, Maj. Gen. Richard Huck, who had overall command of the Marine forces in Iraq at the time, testified that he relied on reporting that came up the chain, which said the civilian killings were "collateral damage" arising from combat.

The 24 Iraqis were killed by members of a Camp Pendleton unit after a roadside bomb destroyed a Humvee on the morning of Nov. 19, 2005, killing a lance corporal and injuring two other Marines.

A search for the bomb triggerman and other insurgents led to the civilian deaths.

The other Haditha defendant heading to trial is Lance Cpl. Stephen Tatum, who faces involuntary manslaughter, aggravated assault and reckless endangerment charges. The 26-year-old Oklahoma native faces up to 19 years in prison and a dishonorable discharge if convicted.

Tatum is one of four enlisted men from Camp Pendleton charged last December in the Haditha killings.

He originally faced two counts of unpremeditated murder and four counts of negligent homicide. Those charges were reduced, however, following an Article 32 hearing earlier this year that found the evidence lacking.

Article 32 hearings are akin to probable cause hearings in civilian court.

Still undecided is whether 1st Lt. Andrew Grayson and Wuterich also will be ordered to court-martial.

A hearing officer earlier this year recommended that 17 murder charges against Wuterich be dismissed and that he stand trial on seven counts of negligent homicide.

Another hearing officer has suggested that the dereliction of duty charges and an obstruction of justice charge against Grayson may not be provable.

Grayson and Wuterich's cases are now in the hands of Lt. Gen. Samuel Helland. As commander of Marine Corps forces throughout the Middle East and the "convening authority" under the Uniform Code of Military Justice, Helland has the power to rule whether the cases against those men should go to trial.

Fallujah

Also playing out in a Camp Pendleton courtroom and the U.S. District courthouse in Riverside will be the allegations that a Camp Pendleton squad violated the law of war and killed four insurgent detainees during the second day of a battle for the city of Fallujah in November 2004.

Former sergeant Jose L. Nazario Jr. is being prosecuted on civilian manslaughter charges and faces up to 10 years in prison. His case is being tried in federal court because he is no longer in the Marine Corps and thus no longer subject to the Uniform Code of Military Justice.

Nazario is accused of killing two of the insurgents.

On Dec. 7, the Marine Corps announced it was refiling murder and dereliction of duty charges against active-duty Sgt. Jermaine Nelson, who is accused of killing one of the insurgents.

He faces up to life in prison if convicted.

The Marine Corps originally charged Nelson with murder in September, but Lt. Gen. James Mattis, then of Camp Pendleton, ordered the charge against Nelson withdrawn pending a review of the investigation.

The dereliction charge alleges that Nelson violated a host of rules regarding the treatment of enemy prisoners and the laws of armed conflict.

The Fallujah case raises numerous legal issues. One of the more interesting is that one defendant is being tried in civilian court, the other a military court. While both are accused of essentially the same acts, they face drastically different potential punishments if convicted.

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