The War Profiteers - War Crimes, Kidnappings, Torture and Big Money
December 23rd, 2006 - 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.
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."
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.