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December 23rd,
2006 - Analysis: Haditha Case Highlights Legal Questions |
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Analysis: Haditha Case Highlights
Legal Questions By Teri Figueroa and Mark Walker North County Times December 23, 2006 North County - Hard
evidence, not arguments over the fog of war, will decide the fates of eight
Marines facing charges as a result of the killing of 24 Iraqi civilians in
Haditha, according to military justice experts. housead The prosecution must be able
to conclusively state "what happened, why did they do what they did, why
did they use force and did they believe they were being engaged," said
Col. Dave Wallace, who teaches law of war at the U.S. Military Academy at
West Point, N.Y. On Thursday, the Marine
Corps charged four enlisted men in the deaths that took place in Haditha over
the course of several hours on Nov. 19, 2005. Also charged were four
officers, who are accused of dereliction of duty and related offenses for
allegedly failing to properly investigate and report on what happened. The enlisted men were among
a group of 13 in a convoy of Marines rolling through Haditha when a massive
bomb embedded in the roadway ripped through one of the vehicles, killing a
lance corporal and injuring two others. The charges filed Thursday
represent the largest criminal case in terms of victims as well as the
highest number of officers to be accused of committing a crime for their
actions in Iraq. The initial news release
from the military, sent out the day after the incident, stated that the blast
killed 15 Iraqi civilians, and that U.S. and Iraqi troops killed eight
insurgents in the ensuing firefight. Four months later, a Time
magazine story questioning the official version of the deaths touched off an
investigation into what really happened in the Anbar province city in western
Iraq. "We now know with
certainty the press release was incorrect," Marine Col. Stewart Navarre
said Thursday when the charges were announced at Camp Pendleton. "None
of the civilians were killed by the IED explosion." The men, all from
Pendleton's Kilo Company attached to the 3rd Battalion, 1st Marine Regiment,
have maintained in statements through their attorneys that when they opened
fire, they were acting within the military's rules of engagement. While the civilian deaths
were unfortunate, they've said, the men contend they were following the rules
of engagement in a search for combatants they believed responsible for the
bombing and small-arms fire aimed at the troops. West Point professor Wallace
said the nine-month investigation into the incident "speaks to how
thoroughly they looked at it" before opting to bring charges. "There was no rush to
judgment," Wallace said. "It was very thorough and
methodical." Proving murder Kathleen Duignan, executive
director of the Institute of Military Justice in Washington and a former
military prosecutor, said a key question is whether the homicides were
unintentional, and whether the officers covered up the junior Marines'
actions "because they were criminal or at least potentially
embarrassing." The four enlisted men are
charged with unpremeditated murder, which roughly equates to second-degree
murder in civilian courts. In proving that a death
rises to the level of unpremeditated murder, the prosecution must show that
the death resulted from an intentional act and that the defendant had a
wanton disregard for human life. Prosecutors also must prove that the accused
knew that death or great bodily harm was a probable consequence of their actions. One interesting piece of the
case, Duignan said, is that even though all four of the accused enlisted men
were charged with unpremeditated murder, one of them, Lance Cpl. Stephen B.
Tatum, was also charged with one count of negligent homicide. A murder charge requires the
prosecution prove a defendant intended to bring harm; negligent homicide is
essentially the absence of care when committing an act. "Negligent homicide
allows for situations when the intent is unclear, like if somebody is firing
in the general direction" of the victim, Duignan said. Intent to bring harm is not
at issue for that charge, she said. The system and what's next In some respects, the
military's system of justice works like that of the civilian world. If the
charges are serious - as they are in this case - the case is likely to end up
in trial. The prosecution must prove the allegations beyond a reasonable doubt,
and the verdict can be appealed. In the military's criminal
justice system, a military commander referred to as the convening authority
decides whether charges should be brought. That authority in this case
is Lt. Gen. James Mattis, commanding general of the I Marine Expeditionary
force and the general with overall command responsibility for Marines in
Iraq. Gary Solis, a former staff
judge advocate at Camp Pendleton who now teaches military law at Georgetown
University, said the charges announced Thursday appear very aggressive. "They say that the
Marine Corps takes very seriously its obligation to conduct itself in
accordance with the law," he said during a telephone interview. The fact that a lieutenant
colonel and a captain who served as the battalion's legal officer are among
the accused underscores the seriousness of the case and the message it sends
to the officer corps, Solis said. "It's also the first
time in the history of our nation that a staff judge advocate, the man
responsible for ensuring conformance with the law, has been charged with
crime related to his work," he said. Solis said he expected the
troops accused in the shooting deaths of the Iraqi civilians would face
manslaughter and not murder charges. "I was very surprised
by the aggressive nature of that charge," he said, adding that that will
be much harder to prove than manslaughter. Clock is ticking Now that the charges have
been filed, the clock is ticking on the judicial process. Barring any
requests for delays by the defense, the government has 120 days to start
court-martial proceedings against the men if Mattis deems a court-martial is
the proper course to follow. The public's first look at
the government's case could come in pretrial court sessions known as Article
32 hearings, which are the rough equivalent of a preliminary hearing in
civilian courts. After those hearings, Mattis
will receive a recommendation on whether the cases should be sent to military
trials, known as courts-martial, or to administrative hearings, which are
less serious and do not result in jail time. He also will have the option at
that point of dismissing or altering the charges. Duignan said that even if
the officers aren't sent to courts-martial, an administrative punishment of
the four officers would be "career-ending." The likelihood that any of
the men will plead guilty to a lesser offense in exchange for lighter
sentences will depend on the strength of the evidence. If it's strong,
defense attorneys may be inclined to negotiate, she said. Attorneys for some of the
men have indicated they plan to fight the charges all the way. Plea bargains have played a
significant role in an unrelated case involving eight members of another Camp
Pendleton unit accused of kidnapping and murdering an Iraqi police officer in
April. Despite initial vows to fight the charges all the way, four of the
defendants in that case have pleaded guilty to lesser offenses than they were
charged with and are serving terms ranging from 12 to 21 months. Complicating matters for
prosecutors in the Haditha case is that U.S. officials have not been able to
obtain permission from the relatives of the slain to exhume their bodies and
conduct forensic autopsies. "The lack of a body
will make it difficult to prove the cause of death," Solis said. But forensics are not
invariably required in the prosecution, said Jeffrey C. Good, president-elect
of the Judge Advocates Association, a national organization of active-duty
and retired military lawyers. "It just depends on the
specific facts of the case," he said. "The exact details of the
entrance and exit wounds (help), but there is no requirement that the
government produce forensics in every case." Lt. Col. Daren Margolin, a
legal affairs officer at Camp Pendleton, said that plea agreements can be
broached by either side. The prosecution may propose one if the government
believes it is in its best interest to resolve a case, and the defense will
often do so if it appears the accused is headed for conviction and a better
deal can be had by pleading guilty to a lesser offense. The Article 32 hearings in
the Haditha case are not expected to begin for at least two months and will
take place in courtrooms at Camp Pendleton with the proceedings broadcast to
a media center established by the base to accommodate reporters covering the
case. External link: http://www.nctimes.com/articles/2006/12/24/news/top_stories/21_14_4612_23_06.txt |