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May 17th,
2007 - Lawyers on Haditha Panel Peer Into Fog of War |
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Lawyers on Haditha Panel
Peer Into Fog of War By Paul von Zielbauer New York Times May 17, 2007 Camp Pendleton, Calif., May
16 - On its face, the military hearing that ended here Tuesday concerned just
one issue: whether an inexperienced Marine lawyer’s failure to question the
killing of Iraqi civilians in Haditha 18 months ago constituted a criminal
dereliction of duty. In fact, the seven-day
hearing opened a rare public window onto a debate about how the Marine Corps
is fighting in Iraq against a ruthless insurgency that uses civilians as
cover and disregards the laws of conflict taught in the United States. The presiding officer, Maj.
Thomas McCann, seemed disconcerted about the testimony he had heard from
several officers, from the general in charge of the Second Marine Division
down to the first lieutenant whose men killed 24 civilians in Haditha on Nov.
19, 2005. Several officers described civilian deaths as unfortunate but
justifiable if they occurred during combat. On Friday Major McCann, an
experienced Marine lawyer, interjected some unsettling questions about how
many civilian deaths it would take to constitute a violation of military
regulations. Alluding to Haditha, he
asked, “At what point do we have to scratch our heads that we killed a lot
more civilians than enemy?” Because so many witnesses
had testified that civilian deaths from “combat action” need not be
investigated, Major McCann said, “I’m trying to figure out what authority
they are citing.” The witness testifying then,
Col. Keith R. Anderson, a senior Marine Reserve lawyer now with the
Department of the Navy, delivered a succinct and telling answer. “There is no
authority,” he said. “I think it’s just a mind-set.” The two officers had tackled
some of the same issues that had troubled military investigators, including
Maj. Gen. Eldon A. Bargewell of the Army, who bluntly criticized Marine
commanders in a secret report last year for tolerating large numbers of
civilian deaths in combat operations. “All levels of command,”
including the American command in Baghdad, “tended to view civilian
casualties, even in significant numbers, as routine and as the natural and
intended result of insurgent tactics,” General Bargewell wrote. The report suggested that
Marine commanders - from Maj. Gen. Steve Johnson, the commander of ground
forces in Anbar Province, to First Lt. William T. Kallop, leader of Company
K’s Third Platoon - created “an unintended command climate” that did not
encourage compliance with the laws of armed conflict. Testimony in the hearing
last week, convened to determine whether Capt. Randy W. Stone had violated
military laws for not investigating the civilian deaths, bore out many of
General Bargewell’s main findings. Maj. Carroll J. Connolly,
for instance, a lawyer for the Marine regiment commanded then by Col. Stephen
W. Davis, said he saw no need to investigate the civilian deaths in Haditha
because they had come during combat with enemy fighters. When Major McCann, the
investigating officer, asked what the legal basis was for drawing that
conclusion, Major Connolly, who was granted immunity from prosecution for his
testimony, said he could not think of any. Many legal experts said the
killing of women and children required investigation regardless of whether it
occurred in combat. “The best course of action
would be to immediately do some sort of investigation to see how these people
came to be dead,” said H. Wayne Elliott, former chief of the international
law division of the Army’s Judge Advocate General’s Legal Center and School
in Charlottesville, Va. Mr. Elliott, a retired Army
lieutenant colonel, also pointed out that investigating the Haditha killings
would be required to comply with Marine commanders’ requirements to report
significant civilian deaths up the chain of command. “How can you report it,”
he asked, “if you don’t see an obligation to investigate it in the first
place?” It was questions like those
that Major McCann repeatedly seemed to grapple with. At another point in the
proceeding last week, he questioned a Marine battalion intelligence officer,
Capt. Jeffrey S. Dinsmore, who had inspected the scene at Haditha. “If there had been 150
bodies N.K.I.A. that day,” Major McCann asked, using the military’s abbreviation
for noncombatants killed in action, “where would we be, in your mind?” Captain Dinsmore, a 21-year
veteran testifying by telephone from Iraq, offered a relatively impassioned
response. He said the Iraq war rarely provided clear lines between combatants
and civilians. The marines in Haditha that day, under small-arms fire in a
profoundly hostile Sunni Arab region, could either abide by the laws of war
and risk being killed, or could take aggressive steps to protect themselves
and their squad members, and risk committing a war crime. “The reality is then and the
reality is now, you let loose marines in a T.I.C. against a hostile
situation, taking small-arms fire,” Captain Dinsmore said, referring to
“troops in contact,” “they don’t have the training nor do they have the
presence of mind to differentiate between civilians and insurgents. It
stinks.” Military and civilian
lawyers said the Marine Corps was unlikely to charge the division commander,
Maj. Gen. Richard A. Huck, with a crime related to Haditha, despite the
general’s testimony last week that he knew about the deaths hours after they
occurred but did not ask for follow-up reporting. But given the widespread
misperception throughout his division’s ranks that civilian deaths were not
cause for great concern, military justice experts said that prosecutors could
have charged other officers as well. Gary D. Solis, who teaches
the laws of war at Georgetown University, said that General Huck could have
been charged but that “I can see the argument against it as well.” Mr. Solis
also said that the general’s chief of staff, a colonel, should be reprimanded
for not telling the general about questions from a Time magazine reporter
that amounted to a war crime allegation. Instead of being charged
with dereliction charges similar to those facing Captain Stone, three other
Marine officers - Lieutenant Kallop, the Third Platoon leader; Maj. Dana G.
Hyatt, a battalion civil affairs officer; and Major Connolly - were granted
immunity from prosecution in exchange for their testimony against Captain
Stone. Copyright 2007 The New York
Times Company External link: http://www.nytimes.com/2007/05/17/world/middleeast/17haditha.html |