It is easier to defend what you have done rather than what you have not done that you were supposed to have done.
First, I’d think the prosecution would have to demonstrate that the undone action was a required action.
Then they would have to prove that the Haditha incident fit that requirement.
Then they’d have to prove that Chessani did not in any way fullfill that action or think he was fulfilling that action.
Then they’d have to prove that Chessani was negligently wrong if he decided that the action potentially met the requirement, but ultimately decided that it did not.
I’d also think that they have to demonstrate that there had not developed a battlefield expedient norm for meeting that requirement that was somewhat different than the textbook means of meeting the requirement. They would have to demonstrate that other units were not following the same or similar battlefield expedient norm and not being prosecuted.
They’d have to demonstrate that immediately superior commanders to Chessani who also viewed the action were prosecuted for the same offenses, since they would have had the same requirements.
I’m sure there are additional questions the prosecution would have to prove to truly convict Chessani.
The bottom line seems to me to be questionable prosecution and selective prosecution.
Agreed. And the prosecutor’s case at the Article 32 fits your blueprint. Of course, the standard of proof (and rules of evidence) is much higher at a CM.
For drama, the prosecution’s star witness is Maj. Samuel Carrasco, the operations officer. He testified that he told Chessani an investigation was needed. Chessani shouted in reply, “My men are not murderers.”
Ultimately, of course, it comes down to the jury. The prosecution needs to convince a panel of Marines that they are superior to LtCol Chessani in wisdom and dispassionate judgement. The investigating officer at Chessani’s 32 gave that a big affirmative.