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The War Profiteers - War Crimes,
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June 28th,
2008 - Haditha Cases Continue to Unravel |
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Haditha Cases Continue to Unravel Unlawful-influence finding may have domino effect By Mark Walker North County Times June 28, 2008 Battered by six consecutive
exonerations of Marines accused in a highly publicized case, military
prosecutors face new difficulties in obtaining convictions against the two
remaining defendants charged with wrongdoing in the deaths of 24 Iraqi civilians
in Haditha. The latest blow came June
17, when a judge ruled that unlawful command influence had irreparably
tainted the dereliction-of-duty prosecution against the battalion commander
at Haditha, Lt. Col. Jeffrey Chessani and that the charges would be
dismissed. The ruling gave the brass
three choices: Let it stand, appoint a new convening authority to review the
case or appeal the ruling. A day after the decision,
prosecutors said they would appeal. They say they are doing so because of the
effect the ruling could have on the primary target in the Haditha
prosecutions, Staff Sgt. Frank Wuterich, the Camp Pendleton Marine who led
his squad in the killings following a roadside bombing in November 2005. "He's been the No. 1
guy they've been after from Day 1," said an attorney with intimate
knowledge of the case and the discussions that have been taking place in
Washington. What was unlawful in the
Chessani case, a judge said, was that a legal adviser to the general
overseeing that case and Wuterich's took that job after first serving as an
investigator into the events at Haditha, an assignment that also made him a
prosecution witness. Those dual roles constituted
a fatal conflict of interest, the judge said, a grievous sin in the military
justice system. It's also one that legal experts say was readily avoidable. Unlawful command influence
occurs when a senior military officer knowingly or unknowingly acts in a way
that compromises what should be a commander's independent decision. The Chessani ruling is
reverberating throughout the Marine Corps not only because of its potential
impact on the Wuterich case, but also because it serves as an indictment of
how the Haditha prosecutions have been handled almost from the start. "The concept of
unlawful command influence includes the perception of its presence,"
Gary Solis, a former Marine Corps judge and prosecutor who teaches military
law at Georgetown University, wrote in an e-mail to the newspaper.
"Military justice cannot afford even the perception that the government
has its fingers on the scales of justice." Chessani is accused of
failing to order a full-scale probe of the civilian deaths and faces two
years in prison and dismissal from the service if his case continues and he's
convicted and receives the maximum sentence. Wuterich faces nine counts
of voluntary manslaughter and related offenses and the prospect of a lengthy
prison term. A Marine Corps spokesman,
Lt. Col. Sean Gibson, said Thursday that the service will not comment on why
it is appealing the ruling by Col. Steven Folsom, the senior Marine Corps
judge in this region. What happened Presiding over the Chessani
case at Camp Pendleton, Folsom ruled that then-Lt. Gen. James Mattis was
unlawfully influenced by the adviser when he approved the charges in December
2006. The illegal influence didn't
stop there, the judge ruled. By extension, Folsom was saying that the
adviser, Col. John Ewers, was wrong to sit in on dozens of subsequent
meetings with the general at which the Haditha prosecutions were discussed. Ewers was known to have
formed opinions of guilt and was superior in rank to the prosecutors at those
meetings. "The government has
failed to prove beyond a reasonable doubt that Col. Ewers' history and
presence at these legal meetings ... did not chill subordinate legal advisers
from exercising independence and providing potential contrary legal
advice," Folsom wrote. "This court finds, and
actually is convinced of one thing beyond a reasonable doubt, that a
disinterested member of the public would harbor significant doubts as the
fairness of the proceedings against this accused and the military justice
system as a whole if they knew that this accused's main interrogator was ...
seated at the side of the convening authority as a trusted legal
adviser." Mattis rejected that
conclusion, issuing a statement the day Folsom ruled that he stood by what he
said during a court hearing on the issue in May - that he made his decisions
independently and was not influenced by Ewers. Ewers was an initial
investigator in the Haditha incident and helped write a report on what
happened. He then became Mattis' legal adviser while simultaneously serving
as a prosecution witness, thus establishing the conflict of interest. While Ewers is highly
regarded, the military law experts say someone should have realized early on
that a mistake was being made. The remedy was simple - remove Ewers from any
meetings or discussions about the Haditha cases and have another lawyer
advise the general on those matters. "He should have recused
himself," said Scott Silliman, a former Air Force legal adviser who now
teaches law at Duke University and heads the Center on Law, Ethics and
National Security. "You have to make sure when you work for a commander
that you don't lose a case because you didn't maintain your distance." Folsom noted that unlawful
command influence is a "mortal enemy of military justice." Ewers'
role, he said, violated that basic tenet. "We need to take it all
back and remove any potential influence of Col. Ewers," he wrote in his
ruling. The dismissal of charges
against Chessani, Solis said, "is a small price to pay to maintain the
public's trust in military justice." One of Chessani's attorneys,
Brian Rooney, said Folsom's ruling was unequivocal. "Unlawful is a strong
word and it means there was influence exerted in this case that was illegal,"
he said. "We were concerned from the beginning that the people making
the decision in this case did not presume Colonel Chessani's innocence, which
is supposed to be a fundamental precept." ‘Disappointed but not surprised’ Chessani, who headed Camp
Pendleton's 3rd Battalion, 1st Marine Regiment at Haditha when the civilians
were killed as Marines searched for their attackers following a roadside
bombing, was relieved of command and is working as an anti-terrorism officer
at the base while his case is adjudicated. "He was hopeful the
Marine Corps wouldn't appeal and he is disappointed but not surprised,"
Rooney said. Wuterich's attorneys made a
similar motion to dismiss the charges against their client, basing their
argument on pretrial publicity stemming from remarks by members of Congress
early in the Haditha investigation. Comments such as one made by
Rep. John Murtha, D-Pa., that the Marines had "killed in cold
blood," fueled the decision to charge Wuterich and also constitutes
unlawful command influence, they contend. A ruling on that motion has been
delayed. Wuterich's attorney, Neal
Puckett, said last week that a new motion to dismiss charges against his
client based on Folsom's finding regarding Ewers will be filed "as soon
as we can get back in court." Judicial courage Carlsbad attorney David
Brahms, a retired Marine general who once was the service's top legal
adviser, said he believes the Chessani prosecution should be dropped. "Is there something
more that needs to be done to a make a point in this case? Colonel Chessani
has already been punished by being relieved of command, he has become a
public figure under cloudy circumstances and his reputation has been
adversely impacted. "Whatever lesson should
come from Haditha has been digested." The Folsom ruling and two
from Lt. Col. Paul Ware, who as an investigating officer issued decisions
resulting in two other Haditha cases being dropped, represent true courage on
the part of the Marine Corps bench, Brahms said. "The guys who are
standing up and doing the right thing are the staff judge advocates," he
said in reference to the terminology for military attorneys and judges.
"In this chaos of what has been military justice disaster we have had
people willing to rise up and call it like they see it." Another way One way to avoid command
influence issues, said Eugene Fidell, president of the National Institute of
Military Justice in Washington, is to adopt systems used in the United
Kingdom, South Africa, Canada and Australia, where a chief lawyer and not a
combat commander such as Mattis oversees military justice cases. "Our system is
command-centric where nonlawyers play significant roles," Fidell said.
"As long as nonlawyers are making key decisions, problems such as
unlawful command influence are going to occur." The fact that six of the
eight men charged at Haditha have been exonerated in some fashion with only
one minor player, 1st Lt. Andrew Grayson, accused of obstruction and found
not guilty, is eroding confidence in military justice, Fidell said. Solis said the 18 months of
Haditha prosecutions have become "a debacle." "Justice has become
elusive," he said. "Charges against the battalion commander are
dropped for reasons having nothing to do with his conduct in the case. While
there was reason to justify the latest dropped charges, it becomes difficult
to maintain that as a whole the Haditha case is approaching a just
conclusion." That said, Solis maintained
the Marine Corps was right to charge the case as it did, pointing to multiple
investigations that concluded wrongdoing led to the deaths of innocent men,
women and children and that commanders largely ignored the carnage. "The acquittals and the
dismissals of charges are the workings of the military justice system,"
he said. "It isn't perfect, but no justice system is." External link: http://nctimes.com/articles/2008/06/28/military/zcaed43dd200c477388257472005a24b4.txt |