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The War Profiteers - War Crimes,
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February 23rd,
2008 - Judge Throws Out Subpoena Request News article by the Associated Press |
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Judge Throws Out Subpoena
Request By Chelsea J. Carter Associated Press February 23, 2008 Camp Pendleton, Calif. - A
judge on Friday tossed a subpoena for unaired "60 Minutes" footage that
the military says is vital in its effort to prosecute a Marine sergeant in an
attack that killed 24 Iraqi civilians. Military judge Lt. Col.
Jeffrey Meeks said prosecutors had other avenues to get the evidence needed
in the case against Staff Sgt. Frank D. Wuterich. Prosecutors say the
interview contained admissions of crimes in the attack. CBS attorneys had told the
judge that it was in the public's interest for the subpoena to be quashed, or
else potential sources could become more reluctant to talk to the media. "It is not easy for
journalists to have witnesses, who are central witnesses in cases such as
these, to sit down and share their story with the general public,"
attorney Seth D. Berlin said. "If we become viewed as an arm of the
government, nobody is going to do that." The subpoena stems from an
interview aired on March 15, 2007, report on "60 Minutes" on the
November 2005 deaths in Haditha, Iraq. Wuterich, 27, of Meriden,
Conn., is scheduled to be court-martialed March 3. He faces voluntary
manslaughter and other charges in the deaths, which happened after a roadside
bomb hit a Marine convoy, killing a Humvee driver and wounding two other
Marines. Wuterich and a squad member
allegedly shot five men at the scene, and Wuterich then allegedly ordered his
squad into several houses, where they cleared rooms with grenades and
gunfire, killing unarmed civilians. In the interview, Wuterich
recounted to CBS Correspondent Scott Pelley his recollection of the events
that led to the deaths. Capt. Nicholas Gannon, a
military prosecutor, had contended in court papers that in an unaired
segment, Wuterich apparently admitted "that he did in fact order his men
to `shoot first and ask questions later.'" But in its motion, CBS had
said the subpoena would be "unreasonable and oppressive," and turn
a news organization into an investigative arm of the government. "This fishing
expedition is particularly inappropriate given the numerous other sources of
information concerning the events underlying this court-martial,"
according to the motion. California has one of the
nation's most protective statutes shielding journalists from prosecutors'
inquiries. The law generally allows journalists to decline to divulge
unpublished material to state authorities, but the protection does not extend
to federal courts, which include military courts. CBS says testimony is
available from witnesses, including members of Wuterich's squad who are not
being prosecuted. But prosecutors, who have
previously said squad members are "far from cooperative," say it is
apparent to them from Pelley's narration that Wuterich made admissions in
unaired footage. Copyright © 2008 The
Associated Press. External link: http://ap.google.com/article/ALeqM5hNUaTPsL6OBHarjCDUGxJ0EYsm9AD8UVL84O0 First Haditha trial set to
unfold Wuterich court-martial puts global spotlight on Iraq rules of
engagement By Mark Walker North County Times February 23, 2008 Camp Pendleton - A jury that
includes several combat veterans will gather in a courtroom here one week
from Monday to hear the first case against four Marines being prosecuted in
the slaying of two dozen Iraqi civilians more than two years ago. The court-martial of Staff
Sgt. Frank Wuterich will offer dramatically competing versions of what
happened in the city of Haditha on Nov. 19, 2005, and the outcome could set
the tone for subsequent courts-martial of the three other Marines. The prosecutions are themselves
controversial, drawing scorn from active-duty Marines and retired veterans,
as well as global attention. "Sergeant Wuterich is
the key figure in this case," said Scott Silliman, a former military
lawyer and now director of the Center on Law, Ethics and National Security at
Duke University. "This is a trial the
whole world will be looking at to see if we hold our own accountable for
violations of the laws of war and armed conflict." Rules of engagement The last of many pretrial
hearings Friday settled a few final questions in Wuterich's court-martial,
including whether CBS would have to turn over the parts of a "60
Minutes" interview the network didn't broadcast. It doesn't. Originally charged with 17
counts of murder and related offenses, the legal wrangling has resulted in
Wuterich now facing nine counts of voluntary manslaughter, dereliction of
duty, aggravated assault, reckless endangerment and obstructing justice. If convicted and sentenced
to the maximum - an outcome that would defy trends seen in jury decisions in
similar cases at Camp Pendleton in recent months - Wuterich faces as much as
160 years in prison. The jurors will hear from
dozens of witnesses and have access to tens of thousands of pages of
investigators' reports. And they won't be limited to hearing only what those
witnesses say in response to attorneys' questions. Unlike in a civilian court,
jurors in a military court are called "members" and are armed with
the authority to ask their own questions of witnesses. For the Wuterich jury, the
central issue is this: Did the squad leader on his first combat assignment
ignore the rules of engagement and criminally lead his squad in the slaying
of unarmed men, women and children? Or were his actions a regrettable but
justifiable execution of his responsibility to defend his men when they came
under attack? What’s at stake At the heart is the
prosecution's charge that Wuterich "willfully failed to ensure Marines under
his charge obeyed the rules of engagement by ordering his Marines to shoot
first and ask questions later." Military law professors
offer divergent views of how the jury, which will include enlisted men and
officers, might see the case and what the Wuterich trial represents. One is Gary Solis, a former
Marine judge and attorney who has written extensively on the laws of armed
conflict. Solis said last week that he
sees the incident at the heart of the trial as having changed from its
original characterization as an alleged massacre by vengeful Marines to one
that highlights the "fog of war" and the ambiguity troops confront
on an urban battlefield. "It's really more of a
tragic event than a murderous rampage and that can only accrue to the benefit
of the accused," Solis said during a telephone interview. "The government is
going to have to convince members of a military jury to convict a Marine
noncommissioned officer of acts carried out in combat," Solis said,
"and that just hasn't been done before." Scott Silliman added:
"The question is did Staff Sergeant Wuterich act on pure emotion or did
he try and sort out the factual environment of what he was facing that day
and follow the rules of engagement by trying to discriminate between lawful
combatants and civilians?" Underlying facts Both sides squaring off in
the Camp Pendleton courtroom agree on this account of what happened on Nov.
19, 2005: The Haditha killings came
after Wuterich led a Kilo Company squad from Camp Pendleton's 3rd Battalion, 1st
Marine Regiment in the former insurgent-hotbed city. As their four-vehicle
resupply convoy was returning to their base, a roadside bomb was detonated,
destroying one Humvee and killing Lance Cpl. Miguel Terrazas. Five unarmed Iraqi men who
emerged from a car that drove up moments later were the first to die, shot by
Wuterich and one of his men. The government considers
those shootings criminal because prosecutors say Wuterich failed to
positively identify who those men were before shooting. Nineteen other Iraqis were
killed as Wuterich led his squad in a house-to-house search for its
attackers. Several of the Iraqis were killed as they hid inside a bedroom. A day later, the Marine Corps
issued an incorrect news release stating that 15 civilians had died in the
bombing. Commanders at Haditha
originally determined the killings were regrettable "collateral
damage" stemming from a legitimate combat action. But that view changed
when survivors alleged the Marines had wantonly killed the men, women and
children inside their homes and Time magazine began raising questions. That led to a large-scale
criminal investigation and the filing of charges in December 2006. The fallout since the filing
of charges has seen a Marine two-star general and two other senior officers
issued career-ending letters of censure for not having ordered an
investigation. That action by the secretary
of the Navy last summer was in addition to criminal charges filed against
eight of the men involved in the incident. Four of the original
defendants have since seen charges dismissed. That leaves Wuterich and Lance
Cpl. Stephen Tatum still facing homicide charges. Lt. Col. Jeffrey Chessani
and 1st Lt. Andrew Grayson are facing charges tied to their alleged failures
to order a full-scale investigation into the slayings. The courts-martials of
Tatum, Chessani and Grayson are scheduled to take place at Camp Pendleton
later this year. ‘Comedy of errors’ Politics and the role of the
U.S. in Iraq have also have been hallmarks of the Haditha prosecutions. Rep. John Murtha, D-Pa.,
charged in early 2007 that overstressed Marines killed "in cold
blood," leading to widespread resentment toward him among local troops. The prosecutions also have
been heavily criticized among former Marines, many of whom view the case as
politically motivated and who say they believe commanders bowed in the face
of pressure to file criminal charges because of the high number of civilian
deaths. One of the critics is Bob
Wiemann, a retired lieutenant colonel and former 3/1 Kilo Company commander.
He recently wrote an open letter of protest to the commandant of the Marine
Corps, calling the case an "embarrassing comedy of errors." "These errors include
leaked confidential investigations, prosecution grants of immunity to
unreliable witnesses, and the almost whimsical addition of charges against
Marines who trust more in their training than you," Wiemann wrote. Final pretrial rulings A military judge presiding
over the Wuterich trial issued a series of final pretrial rulings Friday
afternoon on motions that set the stage for the convening of Wuterich's
trial. The judge, Lt. Col. Jeffrey
Meeks, denied efforts to suppress a statement Wuterich made to Army
investigators who conducted an initial investigation in February 2006. Meeks said the government
can introduce Wuterich's statement then "admitting his involvement and
directing his squad not to worry about positive identification before
targeting." Meeks also sided with
attorneys for CBS in agreeing to quash a prosecution subpoena for outtakes of
an interview Wuterich did with "60 Minutes" that was first
broadcast in March 2007. Prosecutors contended those
outtakes may have included additional incriminating statements but Meeks said
that constituted a "fishing expedition." Meeks said he would allow
the broadcast portion of the "60 Minutes" interview to be
introduced at the trial, which is expected to last two weeks. If found guilty on any of
the charges against him, the jury decides the punishment. Any sentence handed
down is automatically reviewed by the "convening authority" over
the case, Camp Pendleton's Lt. Gen. Samuel Helland. Under the Uniform Code of
Military Justice, Helland has sweeping power to set aside a conviction or
reduce punishment. External link: http://www.nctimes.com/articles/2008/02/23/news/top_stories/25_00_012_23_08.txt |