The Haditha Massacre

2008/11/17 - Legal Update

Thu, 25 Dec 2008 13:41:14 +0100

November 17th, 2008 - Opinion (U.S. vs. Frank Wuterich & CBS Broadcasting vs. Court of Appeals)

Opinion from the United States Court of Appeals for the Armed Forces

"[...] We vacate the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the order of the military judge quashing the Government’s subpoena. We remand the record of trial to the Judge Advocate General of the Navy for return to the military judge for further consideration of whether relief should be granted to Petitioner-CBS under R.C.M. 703. Prior to ruling, the military judge shall order production of the requested material for in camera inspection by the military judge alone. [...]'

2008/12/11 - Murtha Maintains He Was Right to Say Marines ‘Killed Innocent Civilians in Cold Blood’

Fri, 12 Dec 2008 01:03:35 +0100

By Nicholas Ballasy
Cybercast News Service
December 11, 2008

Although all of the charges have been dropped against all of the Marines - except for one - involved in the killing of Iraqi civilians in Haditha in 2005, Rep. John Murtha (D-Pa.) said he stands by his May 2006 remarks that the Marines involved "killed innocent civilians in cold blood."

"Yes, I think it was," the right thing to say, Murtha told CNSNews.com on Wednesday. "That’s my job. My job is due. Listen, the NCIS (National Criminal Investigation Service) came to exactly the same conclusion I did.

"They had a two-star general investigate it," said Murtha. "General Hagee went over right after I spoke out and talked to all of the Marines in the field and said ‘you got to stop this kind of killing.’"

n November 2005, unarmed Iraqi civilians were killed in the town of Haditha in Iraq. While the investigation of several U.S. Marines allegedly involved in the killings was underway in May 2006, Murtha said during a press conference then that the Marines "killed innocent civilians in cold blood."

He later defended his remarks on CNN and MSNBC.

Since then, all charges against the Marines involved - except for one - have been dropped (and in one case, it was an acquittal). Still, Murtha told CNSNews.com after his speech at the liberal Center for American Progress Wednesday, that it was right to make those comments.

Murtha declined to answer any follow-up questions from CNSNews.com on the subject of the Haditha killings.

Below is a transcript of the Dec. 10 interview with Murtha:

CNSNews.com: "Recently, all the charges were dropped with the soldiers involved in the Haditha event. You had been on TV with CNN and different outlets and you were saying that they were, quote, the civilians were killed in cold blood, end quote. But now that the charges have been dropped, do you think that was the right thing to say?"

Rep. John Murtha: "Yes, I think it was, that’s my job. My job is due. Listen, the NCIS (National Criminal Investigation Service) came to exactly the same conclusion I did. They had a two-star general investigate it. General Hagee went over right after I spoke out and talked to all of the Marines in the field and said you got to stop this kind of killing."

CNSNews.com: "Do you think that -"

Rep. John Murtha: "I’m not going to answer any more questions on that."

External link: http://www.cnsnews.com/public/content/article.aspx?RsrcID=40726

2008/12/02 - Military Judge Ordered to Review ‘60 Minutes’ Outtakes

Thu, 4 Dec 2008 13:25:31 +0100

By Rick Rogers
San Diego Union-Tribune
December 2, 2008

Camp Pendleton - A military judge has been ordered to review the outtakes of a “60 Minutes” interview with the main defendant in the Haditha case, in which some Camp Pendleton Marines are accused of unjustifiably killing 24 civilians in Iraq or not investigating the deaths fully.

Lt. Col. Jeffrey Meeks must determine whether the footage contains anything of legal value to the military's prosecution of Staff Sgt. Frank Wuterich, the Navy-Marine Corps Court of Criminal Appeals said in its Nov. 17 ruling. It's unclear when Meeks needs to complete the analysis.

In a 3-2 decision, the court said Meeks erred in quashing the prosecution's subpoena seeking unused portions of the interview that Wuterich granted to the CBS news program "60 Minutes."

Attorneys for CBS had argued against allowing Meeks or others to view the unaired material. Kevin Tedesco, a spokesman for "60 Minutes," declined comment on the latest developments.

Wuterich's civilian attorneys couldn't be reached, and Marine prosecutors have a policy of not discussing their cases.

CBS broadcast its interview with Wuterich on March 18, 2007. In it, Wuterich recounted the Haditha incident, which took place Nov. 19, 2005.

The Marines' killings began shortly after a roadside bomb killed a member of their convoy. Wuterich, a squad leader, said the deaths of civilians was regrettable but also unavoidable during legitimate combat against insurgents.

Prosecutors have said in court that Wuterich and other members of his squad went on a vengeful killing spree.

Wuterich is charged with voluntary manslaughter, aggravated assault, reckless endangerment, dereliction of duty and obstruction of justice. If convicted, he could be sentenced to more than 160 years in the brig.

Originally, eight Marines were charged in December 2006 for allegedly murdering the Iraqis or not looking into the deaths thoroughly.

Only Wuterich and Lt. Col. Jeffrey Chessani still face courts-martial. The other defendants had their charges dropped during pretrial proceedings or were found not guilty by military juries.

The case for Chessani, a battalion commander accused of not scrutinizing the killings, remains in limbo after a military judge dismissed charges against him. The prosecution has appealed that decision.

External link: http://www3.signonsandiego.com/stories/2008/dec/02/n8230317321-no-headline/?zIndex=18418

2008/12/01 - Wuterich Ruling Requires Tape Review

Tue, 2 Dec 2008 02:22:29 +0100

By Mark Walker
North County Times
December 1, 2008

A military judge must review unaired portions of a CBS "60 Minutes" interview with Marine Staff Sgt. Frank Wuterich in which he recounts the slaying of 24 Iraqi civilians following a roadside bombing, a military appeals court has ruled.

Prosecutors contend that Wuterich may make admissions on those tapes, known as outtakes, that could help them prove him guilty of manslaughter and related offenses in the 2005 slayings in the Iraqi city of Haditha.

The Nov. 17 ruling from the U.S. Court of Appeals for the Armed Forces is the latest in an ongoing skirmish between CBS and the Marine Corps in the Wuterich case.

The network contends that the military judge was correct when he ruled last year that the prosecution effort was nothing more than a "fishing expedition" and that attempts to see its nonbroadcast material raised substantial First Amendment issues.

In its 3-2 ruling, the court's majority directs the military judge to review the outtakes and then decide whether a prosecution subpoena for that material should stand.

The court said that the judge, Lt. Col. Jeffrey Meeks, abused his discretionary powers by choosing to "quash the subpoena without first conducting an in-camera review of the requested materials."

Meeks is bound by the ruling to review the outtakes in private and then rule on the government subpoena.

Repeated efforts Monday to reach an attorney representing CBS were not successful. Marine Corps officials will not comment on ongoing court cases.

Wuterich was scheduled to go on trial at Camp Pendleton this year on nine counts of voluntary manslaughter and other charges in the Haditha deaths. He was one of eight base troops charged with wrongdoing in the Nov. 19, 2005, killings that included several women and small children as he and his troops searched for those responsible for a roadside bombing.

Charges against six of the defendants have since been withdrawn or dismissed, leaving Wuterich and the battalion commander at Haditha, Lt. Col. Jeffrey Chessani, as the remaining defendants.

Chessani's case is on hold after another military judge ordered dereliction of duty charges against him dismissed after finding "unlawful command influence" involving a general's legal adviser overseeing the Haditha prosecutions unfairly tainted the case. The Marine Corps challenged that ruling and an appellate court that heard arguments on the issue has yet to rule.

The Wuterich "60 Minutes" issue resulted in supporting court briefs from several media groups, who sided with the network in arguing that handing over nonbroadcast material was akin to forcing a reporter to hand over unpublished notes.

The Reporters Committee for the Freedom of the Press in Washington was among the groups that sided with CBS and its executive director said Monday she was disappointed with the ruling.

"But I can't say I was shocked," Lucy Dalglish said. She speculated that CBS used the best material in its March 2007 Wuterich broadcast and that the outtakes will do nothing to help the prosecution.

Wuterich's primary attorneys, meanwhile, say they will file a motion for dismissal when his case resumes at Camp Pendleton, citing the unlawful command influence ruling in the Chessani case. Because the legal adviser was involved in consulting on all the Haditha prosecutions, they argue the illegality found by Chessani's judge applies to their client as well.

External link: http://www.nctimes.com/articles/2008/12/01/military/z5e2ed7b5243ca0c488257512006a4d5a.txt

2008/11/18 - House Member Argues for Immunity from Lawsuit

Wed, 19 Nov 2008 00:50:21 +0100

By Kimberly Hefling
Associated Press
November 18, 2008

Washington - A Marine who sued Rep. John Murtha for defamation urged a federal appeals court Tuesday to order the Pennsylvania Democrat to testify under oath in the case.

An attorney for Staff Sgt. Frank Wuterich told the court that he needs Murtha's deposition to determine how often the congressman made the claim that Marines in Iraq engaged in "cold-blooded murder and war crimes" in the slayings of civilians in Haditha.

A government lawyer representing Murtha told the judges that the lawmaker has immunity from the lawsuit because he was acting in his official role as a lawmaker when he made the comments to reporters.

Arguments over whether Murtha must testify was argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia.

Wuterich filed the lawsuit in 2006. He is the only person still facing charges in the 2005 Haditha slayings. A second Marine also has sued over Murtha's remarks.

During the hearing, Judge Harry T. Edwards told Mark Zaid, attorney for the Marine, that a "witch hunt" would not be appropriate under the law and questioned what Zaid wanted to ask Murtha because he said he's not satisfied with what's in the complaint.

Zaid said he wanted to find out what Murtha said to other people, such as his neighbors and fundraisers, about the Haditha slayings. He said the deposition would last about three or four hours, but he said it wouldn't be a fishing expedition.

"We don't know what we don't know," Zaid said.

Assistant U.S Attorney Darrell Valdez, who represents Murtha, argued that a member of Congress is "absolutely immune" from a defamation suit because there's no circumstance in which speaking to the media is not within the scope of a lawmaker's employment.
Valdez said it would be hard to find an issue more of public concern than the Iraq war.

But Judge Karen Lecraft Henderson seemed skeptical about Valdez's argument.

"Are you saying a congressman can say anything that he wants about the Iraq war?" Henderson asked Valdez. She questioned if intent and motive should also be considered.

Neither Murtha nor Wuterich attended the hearing.

Murtha, who is opposed to the Iraq war, has said he made the comments to draw attention to the pressure put on troops in Iraq and efforts to cover-up the incident. Murtha is a decorated Vietnam veteran and retired Marine Reserves colonel who was elected in November to this 18th full term.

Last year, a federal judge ordered Murtha to give a sworn deposition in the case. Murtha appealed, and at issue also during Tuesday's hearing was whether it was appropriate for the case to even be before the appellate court.

Four enlisted Marines had been charged for their roles in the killings and four officers were charged in connection to the investigation. One officer was acquitted and charges have since been dropped against everyone else except Wuterich.

Wuterich, of Meriden, Conn., has pleaded not guilty to charges of voluntary manslaughter. He is accused of ordering his men to clear several houses with grenades and gunfire, leading to the deaths of women and children.

Copyright © 2008 The Associated Press.

External link: http://www.google.com/hostednews/ap/article/ALeqM5j-LnJlto4CJin4_NnKFQIIGSm2hQD94HGSL80

2008/10/13 - Marine Corps’ Haditha Appeal Goes to Court on Friday

Sat, 18 Oct 2008 01:06:22 +0200

By Mark Walker
North County Times
October 13,. 2008

A military appeals court on Friday will hear arguments on why a judge dismissed charges against the highest-ranking Marine Corps officer charged in connection with the deaths of two dozen civilians in Haditha, Iraq, in 2005.

In June, military judge Col. Steven Folsom dismissed two counts of dereliction of duty against Camp Pendleton's Lt. Col. Jeffrey Chessani for Chessani's alleged failure to order a full-scale investigation into the killings in the wake of a roadside bomb.

The judge ruled a senior legal adviser to then-Lt. Gen. James Mattis, who was overseeing the Haditha prosecutions at Camp Pendleton, should not have had any role in shaping the case.

The adviser, Col. John Ewers, had been one of the military's initial investigators into the killings and is a potential prosecution witness. The judge ruled Ewers' mere presence at meetings between Mattis and prosecutors created an unacceptable perception of "unlawful command influence" in the general's decisions.

When he ordered the charges dismissed, Folsom said the Marine Corps could refile the case but said it would have to appoint a new investigating officer and a new convening authority.

Prosecutors opted to appeal.

The Marine Corps argues that Mattis, who has since been promoted to a four-star general and is no longer overseeing the Haditha case, was never unduly influenced.

"There is no evidence that Gen. Mattis relied on Col. Ewers for any information, opinions or legal advice," the Marine Corps says in its appeal. "Instead, the record shows Gen. Mattis to be an independent commander highly unlikely to be prone to manipulation by his staff officers."

In their response to the appeal, Chessani's attorneys contend Mattis' testimony was "self-serving" and that unlawful command influence has permeated the Haditha prosecutions "like a cancer affecting every aspect of this case from discovery to witnesses."

One of those attorneys, Brian Rooney, said Monday that the decision by the Navy-Marine Corps Court of Appeals in Washington following Friday's hearing could further be appealed to the Court of Appeals for the Armed Forces. Any appeal beyond there would go before the U.S. Supreme Court.

"This probably will not be the last appeal in this case," Rooney said. "But our hope is that someone will pull back the reins on this case because it has been politically motivated since the beginning."

Chessani and the man who led his troops in the slayings, Staff Sgt. Frank Wuterich, are the only remaining defendants among four officers and four enlisted men charged with wrongdoing at Haditha. Charges were dismissed or withdrawn against all the others following investigative hearings.

Wuterich, who faces multiple counts of manslaughter and related offenses, contends the civilians died as he and his men searched for their attackers after the bombing that killed one Marine and injured two others.

That case is on hold pending a decision by the Court of Appeals for the Armed Forces on whether the military judge in his case should review non-broadcast portions of a CBS television "60 Minutes" interview of Wuterich that prosecutors contend could include incriminating material.

The judge in Wuterich's case ruled the effort a "fishing expedition" when he sided with CBS earlier this year in denying access to those tapes. The Marine Corps' appeal of that ruling was heard last month by the five civilian judges who comprise the Court of Appeals for the Armed Forces and a decision is pending.

Numerous media groups sided with CBS in contesting the Marine Corps' appeal. The media groups contend the non-broadcast material is protected under the First Amendment from disclosure to prosecutors. A ruling to the contrary could set up a larger battle on First Amendment issues.

Wuterich and Chessani, who have each pleaded not guilty, remain on duty at Camp Pendleton working in administrative jobs.

External link: http://www.nctimes.com/articles/2008/10/13/military/z5bcf63516211876f882574e1005cedbd.txt

2007/08/23 - The Haditha Massacre: Summary of Facts

Mon, 6 Oct 2008 13:39:14 +0200

August 23rd, 2007 - Investigating Officer’s Report
Report by the U.S. Western Pacific Judicial Circuit (2,5 MB)

"[...] Summary of facts

"On 19 November 2005, in Haditha, Iraq, Lance Corporal (LCpl) Tatum was a passenger in the third vehicle of a four vehicle convoy. As the convoy traveled down route Chestnut on a logistics mission, an Improvised Explosive Device (IED) exploded under the fourth vehicle in the convoy. LCpl Tatum ran to the vehicle that was damaged to assist with any Marines who were injured. LCpl Terrazas was mortally wounded, LCpl Guzman suffered minor injuries and LCpl Crossan was stuck under debris from the damaged vehicle and had suffered significant injuries. LCpl Tatum assisted in pulling LCpl Crossan out of the debris and began first aid under the direction of Corpsman Whitt.

"While LCpl Tatum was administering to LCpl Crossan he heard gunfire to the West and South. He also heard sporadic gunfire from the North but did not return fire. Lieutenant (Lt) Kallop arrived on scene and after receiving fire from the South he ordered Staff Sergeant (SSgt) Wuterich to lead a fire team south to clear the house from where he believed the fire originated. Corporal (Cpl) Salinas fired an M203 round toward the houses to the South. LCpl Tatum joined SSgt Wuterich, Cpl Salinas, Lt Kallop and LCpl Sharratt to clear the houses to the South. LCpl Mendoza ran to catch up. On the way to house 1, (as identified in the investigation), LCpl Sharratt returned to his vehicle to retrieve an M240G weapon. Lt Kallop also stopped heading South when he received word from another Marine that Marines may have located the trigger house for the IED to the North. SSgt Wuterich led the remaining Marines, Cpl Salinas, LCpl Mendoza and LCpl Tatum to house 1 advising them that the house was to be treated as hostile.

"Cpl Salinas then entered house 1 and shot and killed Khamisa Tuema Ali in the hallway by the stairs. SSgt Wuterich and LCpl Tatum followed into the hallway with LCpl Mendoza entering last. LCpl Mendoza moved to the room to the right of the hallway, observed Guhid Abdal Hameed Hasan (Guhid) inside the room and shot him when Guhid made a movement toward the closet. While Cpl Salinas, LCpl Tatum and SSgt Wuterich were still in the hallway they heard a noise coming from the room to their left. Cpl Salinas and SSgt Wuterich were convinced that sound was the sound of an AK-47 rifle being racked. LCpl Tatum agreed, so he and Cpl Salinas threw grenades into the room. One of the two grenades exploded and shortly after the blast, SSgt Wuterich and LCpl Tatum entered the room and began firing at occupants in the room. As a result Abdul Hameed Husin Ali (Abdul), Waleed Abdul Hameed Hasan, Abdullah Waleed Abdul Hameed (Abdullah) and Asmaa Salman Rasif (Asmaa) were killed and Eman Waleed Abd A1 Hameed and Abd Al-Rahman Waleed A1 Hameed were injured by a combination of the grenade fragments and or bullets.

"After the gunfire ceased, SSgt Wuterich announced that someone ran out of the house toward house 2 (as identified in the investigation). SSgt Wuterich ordered the Marines to leave house 1 and pursue the runner into house 2. LCpl Tatum was the last to arrive at house 2. SSgt Wuterich, Cpl Salinas and LCpl Mendoza had taken positions outside house 2 next to one door. LCpl Mendoza kept watch toward a second door. One of the Marines knocked or rang a bell at the door. As Yunis Salim Rasif approached the second door, LCpl Mendoza shot through the door and killed him.

"Meanwhile, LCpl Tatum, who was still lagging behind the group, witnessed LCpl Mendoza shooting the man through the door as he caught up to the others at the house. SSgt Wuterich and LCpl Mendoza entered house 2. When LCpl Tatum arrived at the door, SSgt Wuterich ordered LCpl Tatum to ‘frag’ the next room in the home. LCpl Tatum obtained a grenade from Cpl Salinas and threw it into the room adjacent to the kitchen. It exploded, damaging the pipes in the shower room. Unknown to the Marines at that time was that there were two adult women and six children in the far back comer room of the house 2. SSgt Wuterich ordered the Marines to continue to clear house 2. LCpl Mendoza positioned himself inside the home in either the hallway or the kitchen. Cpl Salinas stayed outside house 2 and his whereabouts are not in evidence. At some point a Marine threw a grenade into the back room but it did not explode. Later, SSgt Wuterich entered the room and began firing at the occupants. LCpl Tatum entered the room second and fired his weapon toward the bed. As a result, Aida Yasin Ahmed, Mohomed Yunis Salim, Aisha Unes Salim, Zainab Unes Salim, Sena Yunis Salim, Noor Salim Rasif, Yuda Hasin Ahmed were killed. [...]"

2008/09/25 - The Haditha Massacre: Sharratt vs. Murtha - Complaint

Mon, 6 Oct 2008 12:52:37 +0200

Justin Sharratt vs. John Murtha
U.S. District for the Western District of Pennsylvania
Case No.: 3:08 cv 00229 KRG

September 25th, 2008 - Complaint

"[...] 5. In November, 2005 Plaintiff Justin Sharratt, then age 21, was honorably serving our Country in Iraq as a Lance Corporal in the United States Marine Corps.

"6. On November 19, 2005 Sharratt, a member of 1st Squad, 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marine Regiment, was engaged in a skirmish with Iraqi insurgents in the city of Haditha, Iraq. A number of insurgents were killed pursuant to the Rules of Engagement.

"7. Starting in approximately May of 2006, as detailed below, John Murtha repeatedly appeared on national television, gave press conferences, issued press releases, and made defamatory statements about the Marines involved in the Haditha incident, which included Sharratt. Murtha also made similar defamatory statements at other times and places to other individuals.

"8. The statements were made outside of Murtha's scope of employment as a United States Congressman.

"9. Sharratt was publicly identified as one of eight Marines involved in the Haditha incident. [...]"

2008/09/26 - Pa. Marine Sues Rep. Murtha Over Haditha Comments

Fri, 26 Sep 2008 01:41:14 +0200

By Ramesh Santanam
Associated Press
September 26, 2008

Pittsburgh - A former Marine sued Rep. John Murtha for slander on Thursday, saying the congressman damaged his reputation by saying he and his comrades killed women and children "in cold blood" in Haditha, Iraq, in November 2005.

Former Lance Cpl. Justin Sharratt filed the federal lawsuit in Pittsburgh. Sharratt claims the comments the high-ranking Pennsylvania Democrat made on news shows in May 2006 also violated his constitutional rights to due process and presumption of innocence.

"Sharratt, in being labeled repeatedly by Murtha as a 'cold-blooded murderer,' and by Murtha outrageously claiming that the Haditha incident was comparable to the infamous (My Lai) massacre of Vietnam, has suffered permanent, irreversible damage to his reputation," the lawsuit states.

Military prosecutors have said two dozen Iraqis, including women and children, were killed in Haditha on Nov. 19, 2005, after one Marine died and two others were wounded by a roadside bomb. Murtha, a former Marine and decorated Vietnam War veteran, spoke out about the killings, saying that troops in Iraq were being put under too much pressure.

Sharratt, 24, of the Pittsburgh suburb of Canonsburg, was initially charged with three counts of premeditated murder but was exonerated after a full investigation and a hearing. He was honorably discharged last year.

Sharratt said he has received hate e-mails and been called a "baby killer" when he goes out in Canonsburg.

Murtha's office said the congressman had no comment on the lawsuit.

Sharratt is the second Marine to sue Murtha over his comments about Haditha. Staff Sgt. Frank Wuterich, the only person still facing charges in the Haditha case, sued Murtha for defamation in 2006. That lawsuit is pending.

In his lawsuit, Sharratt accuses Murtha of repeatedly saying on CNN, NBC and other outlets that Sharratt and his fellow Marines "overreacted because of the pressure on them and killed innocent civilians in cold blood."

Murtha said the Haditha killings were comparable to the March 1968 My Lai massacre, when American servicemen killed as many as 504 Vietnamese villagers, Geary said in a statement.

Sharratt and Geary denied any civilians were killed on purpose, and Sharratt said he didn't witness any civilian deaths. Sharratt and his father, Darryl, said that he killed three insurgents, two armed with assault rifles and a third about to retrieve a rifle.

Murtha didn't name Sharratt, but media members were able to identify him from the congressman's comments and other information, said the Sharratt's attorney, Noah Geary, at a news conference Thursday afternoon.

Four enlisted Marines, including Sharratt, were originally charged for their roles in the killings and four officers were charged in connection to the investigation. One officer was acquitted and charges have since been dropped against everyone else except Wuterich, whose case is pending.

Wuterich, of Meriden, Conn., has pleaded not guilty to charges of voluntary manslaughter. He is accused of ordering his men to clear several houses with grenades and gunfire, leading to the deaths of women and children.

An 18-term congressman, Murtha was hawkish on war issues for decades but has come to believe the U.S. should leave Iraq as soon as possible. He is known for bringing money and jobs, especially in the defense industries, to his district in rural Pennsylvania.

He faces Republican William T. Russell, a career Army member who left the service two years short of retirement, in the November election. Russell has run campaign ads criticizing Murtha for his comments about Haditha.

Associated Press writer Joe Mandak contributed to this story.

Copyright © 2008 The Associated Press.

External link: http://ap.google.com/article/ALeqM5h5WevvJUXQrfbMEFvMlEojd7tA6wD93DVLEO1

2008/09/13 - Remaining Haditha Cases Mired in Courts

Mon, 15 Sep 2008 00:29:18 +0200

By Mark Walker
North County Times
September 13, 2008

In the nearly two years since eight Camp Pendleton Marines were charged with killing 24 Iraqi civilians in Haditha, six of the men have been exonerated, and widespread interest in the case has waned.

Still, the final chapters in the 2005 killings that reverberated around the world, affected the military's rules of engagement and played a large role in how the war was viewed have yet to be written.

Appellate court hearings for the two remaining defendants over the next month will establish the outline of how Haditha's story will end.

One of the defendants is the battalion commander at Haditha, Lt. Col. Jeffrey Chessani, who headed the 3rd Battalion, 1st Marine Regiment. Dereliction-of-duty charges against him were thrown out by a military judge earlier this year based on a finding that unlawful command influence stained his case beyond repair.

Prosecutors appealed the dismissal, leaving his case unresolved.

If the appeal is successful, charges that Chessani failed to meet his duty by not ordering a full-scale investigation will stand and he will face court-martial at Camp Pendleton.

If the appeal fails, the Marine Corps will have two choices - drop the case or start from scratch.

The other remaining defendant is squad leader Staff Sgt. Frank Wuterich, who is accused of nine counts of voluntary manslaughter. His case is mired in legal wrangling over military prosecutors' requests for non-broadcast material from a CBS "60 Minutes" interview conducted months before he was charged in December 2006.

His court-martial proceedings are on hold until that issue is decided.

The decisions from the two appellate court hearings will set the remaining legal path for the two accused Marines.

First up

On Wednesday, five civilian judges who comprise the U.S. Court of Appeals for the Armed Forces in Washington will hear arguments on whether the "60 Minutes" outtakes should be made available to a military judge, and possibly to prosecutors.

The issue pits network giant CBS against the Marine Corps. The Marine Corps argues the outtakes may contain statements implicating Wuterich in criminal conduct and help prove he ignored rules of engagement and is guilty of manslaughter and related offenses.

CBS, citing First Amendment issues, says a judge was right to deny prosecutors access to those outtakes, calling the effort a "fishing expedition."

A lower court ruled the military judge should view the outtakes and then decide if they contain relevant information that should be shared with prosecutors.

Attorneys representing CBS and the Marine Corps will each have 20 minutes to argue their cases. Once the court rules, the losing side can petition the U.S. Supreme Court to consider an appeal.

In the meantime, Wuterich remains at Camp Pendleton, working in logistics as decisions affecting his fate are played out in a courtroom 2,600 miles away.

October date for Chessani

Next month, three military judges who preside over the Navy-Marine Corps Court of Criminal Appeals will hear arguments on the Marine Corps' appeal of the ruling dismissing the charges against Chessani.

In a filing in advance of the hearing, the Marine Corps argued that the finding that unlawful command influence tainted Chessani's case beyond repair was based on an "erroneous view of the law" and that the judge "abused his discretion in fashioning the remedy that he did."

The ruling dismissing the dereliction charges came after Chessani's judge at Camp Pendleton found that a senior legal adviser to then-Lt. Gen. James Mattis, who was overseeing the Haditha prosecutions, should not have had any role in shaping the case.

The adviser, Col. John Ewers, had been one of the military's initial investigators into the killings and is a potential prosecution witness.

The judge ruled Ewers mere presence at meetings between Mattis and prosecutors created an unacceptable perception of undue influence in the general's decisions.

The Marine Corps argues that Mattis, who has since been promoted to general - four stars - and is no longer overseeing the Haditha case, was never unduly influenced.

"There is no evidence that Gen. Mattis relied on Col. Ewers for any information, opinions or legal advice," the Marine Corps says in its appeal. "Instead, the record shows Gen. Mattis to be an independent commander highly unlikely to be prone to manipulation by his staff officers."

In their response to the Marine Corps' appeal, Chessani's attorneys contend Mattis' testimony was "self-serving" and that unlawful command influence has permeated the Haditha prosecutions "like a cancer affecting every aspect of this case from discovery to witnesses."

What happened

What is undisputed about what happened at Haditha is this: On the morning of Nov. 19, 2005, a roadside bomb exploded, destroying a Humvee, killing a lance corporal and injuring two other Marines.

Five men who emerged from a car that drove up immediately after the bombing were believed by Wuterich, he said, to be insurgents so he and another squad member shot all five.

The Marines then searched nearby homes for the bomber and those firing at them. They ended up killing 19 more people, including several women and children.

In the aftermath, Marine commanders concluded that the deaths, while tragic, came during a legitimate response to the convoy being attacked.

That changed in the face of public and media pressure, resulting in four enlisted men being charged initially with murder and four officers charged with offenses tied to not conducting an exhaustive investigation.

The killings also led commanders to reinforce adherence to the rules of engagement governing when troops can use lethal force, with an emphasis on positive identification of a hostile threat. Among the changes is that a review is conducted whenever civilians die in the crossfire of conflict in Iraq.

In investigating the case, the Marine Corps granted immunity to as many as 17 Marines, including some who took part in the shootings and one who later acknowledged urinating on the head of one of the victims.

In the months since the eight were charged, the service withdrew charges against five following hearings at Camp Pendleton and one trial resulted in an acquittal.

Former Marine attorney and military law expert Gary Solis said that while the legal system has worked in the Haditha affair, he believes it remains an example of "prosecutorial overreaching."

A sticking point

Haditha has faded from public attention in the U.S., but it remains part of the political landscape in Iraq.

Last week, the Reuters news agency reported that Iraqi Deputy Prime Minister Barham Salih said discussions with the U.S. on a new security pact were stymied in part over legal protection for U.S. troops.

Haditha and other incidents such as the Abu Ghraib prison scandal have colored the talks aimed at establishing the policy for continued U.S. troop presence when a United Nations mandate expires at the end of the year, the agency reported.

"(It) is probably the most contentious issue," Salih was quoted as saying. "There is a history to it. It is very sensitive."

The U.S. and the Iraqis have agreed that private contractors in Iraq would lose the legal immunity they now have under the new pact, but have yet to reach consensus on how to treat troops accused of crimes.

External link: http://www.nctimes.com/articles/2008/09/13/military/z3339cb3f05d61458882574c1005bee0b.txt

2008/08/18 - Marine Lawyer has Sought Judicial Reform

Fri, 22 Aug 2008 19:23:46 +0200

By Rick Rogers
San Diego Union-Tribune
August 18, 2008

Camp Pendleton - When Colby Vokey joined the Marine Corps, he didn't plan on becoming a prominent and sometimes divisive figure in the military's legal system.

That's how he left the service this month after years of defending Marines tried for offenses at Camp Pendleton, troops accused of war crimes in Iraq and a detainee at Guantanamo Bay, Cuba, suspected of terrorist activity.

He retired as a lieutenant colonel and chief of the Marine Corps' defense lawyers for the western United States. One of his last major duties was representing Frank Wuterich, the Camp Pendleton staff sergeant accused of leading his men on a rampage and killing two dozen civilians in Haditha, Iraq, in November 2005.

Over his objections, the Marine Corps retired Vokey even though Wuterich is scheduled to be court-martialed.

Vokey has pressed for changes to the military's judicial process, and he is an outspoken critic of the tribunal system being used to prosecute alleged terrorists at Guantanamo Bay.

"I speak my mind when I see something wrong," he said. "I think that (angered) a lot of people."

Vokey said he has no sympathy for terrorists or their sympathizers. "There are guys down in Guantanamo who would, if you sat down next to them, try to kill you," he said.

But Vokey said many of the detainees are being deprived of their legal rights and are physically and mentally mistreated.

"I walked in thinking that trials in Gitmo were going to be like a court-martial," Vokey said. "Then you realize the whole trial system is a sham. There was a complete lack of due process. It is disturbing and embarrassing what is going on down there."

Navy Cmdr. Jeffrey Gordon, a spokesman at the Pentagon, disputes Vokey's assertions.

"He has said a lot of things that don't stand up to facts," Gordon said.

Camp Pendleton officials declined to comment on Vokey's criticisms.

Haytham Faraj, a former Marine lawyer who served with Vokey for three years at Camp Pendleton, said military lawyers usually don't speak publicly about court cases.

"But in his case, he was operating in Guantanamo Bay with no rules," Faraj said. "You have to understand that Colby is not a liberal. He is a conservative who supported the administration, and he believed in the war. He was a true believer. It took a long time for his views to shift."

The military appointed Vokey in November 2005 to defend Omar Khadr, who is accused of killing an Army sergeant with a grenade in Afghanistan in 2002, when the defendant was 15.

While at Guantanamo, Vokey said, he heard first-hand accounts of the harsh interrogation tactics that largely have been confirmed by federal and Pentagon officials in the past year. He said detainees were routinely exposed to temperature extremes, marathon questioning and frequent moves from one holding cell to another.

Vokey offered an example in an interview with National Public Radio late last year: "Omar was in this stress position, his hands behind his legs, chained to his feet, and he was chained to the floor. And he was trying to stand on his knees like that, and he would eventually fall over. They'd come and pick him back up. He'd fall over, they'd pick him up. And after somewhere between four and six hours, he ended up urinating on himself. So when they came in, he's lying there in the puddle of his own urine. "They come in, they squirt Pine-Sol on the ground and they grab Omar, and they use him as a human mop - mopping up the urine in the Pine-Sol with him - and then just leaving him there with the urine and Pine-Sol on his body."

About a year earlier, Vokey had complained to the Inspector General's Office at the Pentagon about alleged abuses at Guantanamo after his paralegal said guards bragged to her about beating detainees.

The military later concluded that those claims were groundless.

Vokey's blunt assessments aren't limited to Guantanamo cases. He sees a need to overhaul the Uniform Code of Military Justice, the bedrock of the military's legal system.

For example, he wants to change the way military juries - officially called panels - are chosen. Currently, certain generals get to decide whether a service member should be charged, whether that person should be court-martialed and who is chosen for the jury pool. Some legal experts have said the practice concentrates too much power in the hands of those generals.

Vokey has returned to his native Texas, where he now lives in the Dallas area with his wife and three children, ages 9, 14 and 19. He plans to continue practicing law - as a civilian attorney - and hopes to help military lawyers defend service members charged with crimes.

External link: http://www.signonsandiego.com/news/northcounty/20080818-9999-1m18vokey.html

2008/08/13 - Government’s Attempt to Block Amicus Curie Brief for CBS Case Denied by Court

Thu, 14 Aug 2008 11:47:14 +0200

Reporters Without Borders
August 13, 2008

The government’s attempts to flout news-gathering privilege hit another road-block on 11 August when a court denied their request to block an amicus curie brief signed by Reporters Without Borders and numerous news organizations in support of CBS in their effort to quash a government subpoena.

The case concerns an interview with Scott Pelley aired on March 18, 2007 on 60 Minutes with US Staff Sergeant Wuterich. He is charged by the military with dereliction of duty and voluntary manslaughter in the death of 14 Iraqi civilians in Haditha, Iraq.

In February, the government subpoenaed CBS for the videotape of the interview, saying they were trying to assess whether Wuterich had said anything in un-aired parts of the interview that were pertinent to their case. CBS refused to turn over the tape and said that the government’s request was "unreasonable and oppressive." That same month a military judge sided with CBS and quashed the subpoena, but the government appealed the decision.

The Navy-Marines Corps Court of Criminal Appeals directed the judge to conduct "additional fact-finding," including a private review of the videotape to determine if any part of it was "relevant and necessary" to the sergeant’s prosecution. CBS is appealing the decision to the next highest appeals court.

Reporters Without Borders joined the amicus curie brief filed on 21 July with a group of other media organizations. The brief argued that a judge’s in camera review of news-gathering materials as directed by the appeals court raised First Amendment issues and should only happen under necessary conditions, which had not been reached.

The government then filed an opposition to the filing of the amicus brief. However, this stretched attempt to keep the brief out of the court failed, with the Court of Appeals for the Armed Forces granting the motion of the organizations to file in support of CBS. The appeals case will now proceed with the higher court of appeals determining whether or not a judge needs to review the tape.

External link: http://www.rsf.org/article.php3?id_article=28157

2008/08/04 - Marine Corps Seeks to Reinstate Haditha Charges

Tue, 5 Aug 2008 23:34:33 +0200

By Mark Walker
North County Times
August 4, 2008

Camp Pendleton - A judge abused his power when he dismissed dereliction of duty charges against Lt. Col. Jeffrey Chessani in the 2005 slaying of two dozen Iraqi civilians, according to an appeal filed on behalf of the Marine Corps.

Navy Lt. Timothy Delgado argues the charges against Chessani should stand because the judge erred in declaring that Marine Gen. James Mattis was illegally influenced in his handling of the case.

At issue is whether Mattis was guilty of "unlawful command influence" because he allowed his top legal aide, Col. John Ewers, to sit in on meetings with prosecutors. Ewers investigated the killings in the city of Haditha and is a potential prosecution witness.

In his June 17 decision, the judge, Marine Col. Steven Folsom, ruled that Mattis was unduly influenced. The ruling has called into question all seven other Haditha cases and has implications in the only other remaining prosecution, that against Staff Sgt. Frank Wuterich.

"The military judge's findings of fact are clearly erroneous," Delgado contends in a 43-page argument filed with the Navy-Marine Corps Court of Criminal Appeals in Washington. "The military judge abused his discretion in fashioning the sweeping remedy that he did."

Among other reasons he cited when ordering the dismissal, Folsom said Chessani's prosecutors were junior in rank to Ewers and were unlikely to challenge him. That alone created an unfair climate, the judge ruled.

Chessani commanded the 3rd Battalion, 1st Marine Regiment at Haditha when the killings occurred Nov. 19, 2005. He is accused of failing to order a full-scale investigation, and is the highest-ranking officer charged in the incident that spawned a domestic and international uproar.

Ewers' role as an investigator and later appointment as Mattis' chief legal adviser tainted the case beyond repair, Folsom ruled. Dismissal was necessary, he said, to maintain public confidence in the military justice system.

"Unlawful command influence is the mortal enemy of military justice," Folsom said when he ordered the charges tossed on June 17. "The appearance of unlawful command influence is as devastating as actual manipulation of a trial."

But the appeal filed by Delgado, an attorney in the Navy's appellate branch in Washington, says Mattis was never unduly influenced by Ewers.

"There is no evidence that Gen. Mattis relied on Col. Ewers for any information, opinions or legal advice," he wrote. "Instead, the record shows Gen. Mattis to be an independent commander highly unlikely to be prone to manipulation by his staff officers."

Mattis was a lieutenant general at Camp Pendleton in 2006-07 and his duties then included overseeing the case against Chessani and seven other Marines.

Mattis has since been promoted to four-star general and a different job and is no longer overseeing the prosecutions.

The appeal cites several instances in which Mattis, testifying at a hearing at Camp Pendleton on June 2, denied talking to Ewers about the Haditha prosecutions. Instead, Mattis said he relied on another legal aide for advice on those cases.

"Gen. Mattis used the word 'never' 10 times in answering questions about whether Col. Ewers had provided any legal advice with respect to (Chessani's) case or any Haditha case," the appeal points out.

It also quotes Mattis' testimony, in which he stated that Ewers "never spoke to me about this case nor would I have asked him for any information or advice. A strict firewall was maintained. ..."

Chessani faces up to six months in custody and a dismissal from the service without benefits if the charges are reinstated and he is convicted.

His attorneys at the Thomas More Law Center in Michigan have three weeks to file a response. They have refused requests for comment on the Marine Corps' appeal and did not immediately return messagess Monday.

The Navy-Marine Corps Court of Criminal Appeals is an intermediate appellate court in the military justice system.

A date for its three-judge panel to consider the appeal of the Chessani dismissal has not been set. Their rulings are subject to further challenge before the Court of Appeals for the Armed Forces.

After Folsom's ruling, Wuterich's attorneys said they will seek to have his case dismissed, arguing the finding that Ewers illegally influenced the Chessani prosecution equally applies to their case. His trial is on hold pending resolution of a ruling denying the government access to outtakes of a March 2007 interview with the CBS news magazine "60 Minutes."

Wuterich led a squad in the slayings after a roadside bombing during a resupply run killed a Marine lance corporal. Initial charges of murder have been reduced to nine counts of voluntary manslaughter.

Three other officers and three other enlisted men charged with crimes at Haditha have been exonerated through dismissal or withdrawal of charges and one not guilty finding at trial.

External link: http://www.nctimes.com/articles/2008/08/04/military/z24633184f0a151da88257494006dd5f0.txt

2008/08/02 - Marine Corps Battles CBS in Brewing First Amendment Case

Sun, 3 Aug 2008 20:11:00 +0200

By Mark Walker
North County Times
August 2, 2008

Camp Pendleton - The Marine Corps is going to battle with CBS in what could become a prominent First Amendment case stemming from one of the highest-profile incidents arising out of the Iraq war.

At issue is whether government prosecutors should have access to outtakes from a "60 Minutes" interview of a Marine who in 2005 led his squad in the killing of 24 Iraqi civilians, including several women and children.

Legal experts and media advocates say the chances of the Marine Corps prevailing over the revered media giant are slim.

Several news organizations have joined CBS in its fight to keep prosecutors from seeing the outtakes of the interview with the squad leader, Staff Sgt. Frank Wuterich.

Those groups include CNN, The Associated Press, the National Association of Broadcasters, NBC, National Public Radio, The Washington Post, several newspaper chains and the Reporters Committee for Freedom of the Press.

In a brief filed with the Court of Appeals for the Armed Forces in Washington, the groups say a lower court ruling that compels the network to hand over unaired material from its interview with Wuterich raises substantial First Amendment issues. The brief was filed in advance of a September hearing

"It is difficult enough for journalists to convince reluctant sources to submit to rigorous interviews," the media groups say in their brief filed July 21. "It is even more challenging when the sources ... suspect that journalists may be investigative arms of the government."

The interview was conducted by CBS reporter Scott Pelley before the Marine Corps filed charges in December 2006 against Wuterich and seven other Camp Pendleton Marines tied to the Haditha killings.

In a declaration he filed with the court, Pelley wrote that compelling reporters to hand over material that wasn't broadcast or published could lead to decisions to stop pursuing controversial stories.

"The press might well decide to avoid certain controversial subjects or subjects likely to lead to criminal prosecutions," wrote Pelley, a veteran journalist who has covered the White House, the Middle East and been a "60 Minutes" correspondent since 1999. "Protection ... is essential to the effective functioning of the press."

‘Fishing expedition’

There are apparently hours of videotape shot but not used during the March 2007 "60 Minutes" broadcast of its interview with Wuterich, who led his squad in a search for insurgents that attacked his men with a roadside bomb and small-arms fire in Haditha on Nov. 19, 2005.

When Marine prosecutor Capt. Nicholas Gannon argued for access to the interview in February, he said Wuterich "apparently admits in an unaired segment that he did in fact order his men to 'shoot first and ask questions later.' "

In February, a military judge at Camp Pendleton ruled that prosecutors' attempts to get the outtakes amounted to a "fishing expedition."

The judge, Lt. Col. Jeffrey Meeks, said then that he did not believe the unaired material would shed any new light on the allegations against Wuterich, who faces nine counts of voluntary manslaughter and related offenses.

Prosecutors appealed Meeks' ruling, arguing that they suspected the outtakes contained material that might implicate Wuterich and further strengthen their evidence against him.

In June, the Navy-Marine Corps Court of Criminal Appeals sided with the Marine Corps, directing Meeks to view the outtakes in private to determine if there was any relevant material and then rule on whether it should be shown to prosecutors.

CBS promptly appealed the finding to the higher military court.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said the Marine Corps is misguided in its attempts to get the outtakes.

"The judge said he thought it was a fishing expedition and he was right," she said during a telephone interview from her office in Washington. "This was a 26-minute interview and if they had anything particularly outrageous it would have been aired. If word went out that '60 Minutes' would turn over its outtakes no one would ever talk to them and the public would lose because information would start to dry up."

A House version of a bill now in Congress that would grant a shield to reporters from subpoenas in similar cases would render the Marine Corps' effort moot. The Senate version of the legislation, however, would not grant protection in the Wuterich case outtakes. The bill was stalled in the Senate as of last week.

Much of the argument coming from CBS in advance of the scheduled Sept. 17 hearing before the Court of Appeals for the Armed Forces is rooted in procedural issues. But a network attorney said that even letting the judge see the outtakes could set a dangerous precedent.

"From the perspective of the press, it is intrusive," attorney Lee Levine said during a telephone interview last week. "That's why we feel the (lower) court has lost its way."

In its brief, CBS argues that Meeks relied on existing military case law and its civilian equivalent that generally limits the government from forcing reporters to disclose material not published or broadcast.

"Civilian courts ... have had no difficulty applying these principles to quash subpoenas to journalists, particularly where the subpoenaing party is merely speculating about the value of the materials it seeks," the network says.

The Navy-Marine Corps Court of Appeals also exceeded its authority, CBS argues, in directing Meeks to review the unaired material without first directing he consider reporter privilege.

Scott Silliman, a Duke University law professor and director of the Center on Law, Ethics and National Security, said there is at least one military justice case involving the Air Force outtakes which were eventually ordered non-releasable.

"It would appear that CBS has a pretty strong argument," he said.

‘Shoot first’

Wuterich's attorneys have said they agreed to the interview to "humanize" their client, who had been portrayed in some media reports as leading his men in a wanton rampage following the bombing that occurred during a resupply convoy, destroying a Humvee and killing a lance corporal.

Immediately after the explosion, five men who emerged from a car that drove up to the convoy were shot and killed. No weapons were found on any of those men or in their car during a later search.

Over the next few hours, Wuterich and his squad from Camp Pendleton's 3rd Battalion, 1st Marine Regiment stormed a series of nearby homes, resulting in the deaths of 19 others including several women and children.

One of four officers charged with failing to investigate the shootings was acquitted during a jury trial at Camp Pendleton earlier this year.

Charges against three other officers were eventually withdrawn or dismissed, although the Marine Corps is appealing the dismissal of charges against the battalion commander at Haditha, Lt. Col. Jeffrey Chessani.

He is charged with dereliction of duty for failing to order a full-scale probe of the civilian deaths.

Of the four enlisted men originally charged with murder in the shootings, charges have been withdrawn or dismissed against all but Wuterich. The murder charges against him were eventually amended to manslaughter.

Wuterich's court-martial was supposed to start in June but has been delayed indefinitely by the "60 Minutes" issue. He and Chessani remain on duty at Camp Pendleton pending resolution of their cases.

External link: http://www.nctimes.com/articles/2008/08/02/military/ze33f786e5e8b0735882574950061647b.txt

2008/07/29 - Prosecutors Appeal Dismissal of Haditha Charges

Wed, 30 Jul 2008 23:40:22 +0200

By Chelsea J. Carter
Associated Press
July 29, 2008

San Diego - Prosecutors appealed the dismissal of charges against a Marine officer accused of not investigating the killings of 24 Iraqis, a defense attorney said Tuesday.

Military prosecutors filed the appeal Monday seeking to reinstate charges against Lt. Col. Jeffrey Chessani, civilian defense attorney Brian Rooney told The Associated Press.

A Marine Corps spokesman did not immediately respond to a request for comment.

A military judge last month dismissed charges against Chessani after finding that a four-star general overseeing the case was improperly influenced by an investigator probing the Nov. 19, 2005, killings in Haditha, Iraq.

Chessani, of Rangely, Colo., was the highest-ranking officer to face a combat-related court-martial since the Vietnam War.

The Iraqis were killed after one Marine died and two others were wounded by a roadside bomb.

Staff Sgt. Frank Wuterich, who faces voluntary manslaughter charges, and a squad member allegedly shot five men by a car at the scene. Investigators say Wuterich then ordered his men to clear several houses with grenades and gunfire, leaving women and children among the dead.

Wuterich, who is from Meriden, Conn., has pleaded not guilty.

Four enlisted Marines were originally charged with counts related to the killings and four officers were charged in connection with the investigation, including Chessani. Charges have since been dropped against everyone except Wuterich, whose case is pending, and an officer who was acquitted.

The dismissal of Chessani's case came after Gen. James Mattis took the stand - a rare courtroom appearance for such a high-ranking officer - to address the judge's initial finding that there was evidence of unlawful command influence.

Mattis testified he never discussed Chessani with Col. John Ewers, the military lawyer who investigated the killings and took Chessani's statement. Ewers later became a top legal adviser to Mattis and sat in on briefings that helped Mattis decide who would be charged.

Military policy prohibits Ewers from offering legal advice because he also was an investigator in the case.

Mattis approved the filing of charges against Chessani when he was both commander of the Marine Corps Forces Central Command and the commander of the 1st Marine Expeditionary Force at Camp Pendleton. He has since been promoted and serves as commander of NATO's Supreme Allied Commander Transformation and commander of U.S. Joint Forces.

Copyright © 2008 The Associated Press.

External link: http://ap.google.com/article/ALeqM5hNUaTPsL6OBHarjCDUGxJ0EYsm9AD927OHIG0

2008/07/14 - CBS Files Appeal Over Haditha Interview

Tue, 15 Jul 2008 22:22:39 +0200

By Chelsea J. Carter
Associated Press
July 14, 2008

San Diego - CBS News has appealed a ruling by a military appellate court that ordered a judge to review unaired footage of an interview given by a Marine squad leader charged in the killings of 24 Iraqis.

"We filed a petition for extraordinary relief in the U.S. Court of Appeals for the Armed Forces," CBS News spokeswoman Sandra Genelius said Monday in an e-mail to The Associated Press.

The petition, filed last Thursday, seeks a review of an appeals court ruling that said a judge must review the footage to determine the legal basis for the television network's refusal to turn over unaired "60 Minutes" footage of its interview with Staff Sgt. Frank D. Wuterich.

The appeal by CBS also seeks relief from the appellate court's order that the judge, Marine Lt. Col. Jeffrey Meeks, decide what, if any, newsgathering privilege would prohibit the network from complying with a prosecution subpoena.

CBS News' petition for relief from the appellate court ruling stems from an appeal filed by military prosecutor who said the unaired footage contains admissions by Wuterich of crimes in the attack in Haditha, Iraq, on Nov. 19, 2005.

Meeks had ruled that prosecutors did not need the CBS footage to get the evidence they needed.

Wuterich's attorneys did not immediately respond to a request for comment.

Wuterich, 27, of Meriden, Conn., faces voluntary manslaughter and other charges in the Haditha 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 are accused of shooting five men at the scene, after which Wuterich allegedly ordered his squad into several houses, where they cleared rooms with grenades and gunfire, killing Iraqis, including women and children.

In the interview aired March 15, 2007, Wuterich recounted to CBS correspondent Scott Pelley his recollection of the events that led to the deaths.

Attorneys for CBS News, which is a division of CBS Corp., have called the subpoena "unreasonable and oppressive."

Authorities originally charged eight Marines four enlisted men with counts related to the killings and four officers in connection with the investigation. Charges were dropped against five men, and a sixth, 1st Lt. Andrew Grayson of Springboro, Ohio, was acquitted of charges he hindered the investigation.

A judge dismissed charges in June against Lt. Col. Jeffrey Chessani of Rangely, Colo., after finding that a four-star general overseeing the case was improperly influenced by an investigator. Military prosecutors are appealing that ruling.

Wuterich is currently the sole defendant. He has pleaded not guilty.

© 2008 The Associated Press. All rights reserved.

External link: http://www.pe.com/ap_news/California/CA_Marines_Haditha_349764C.shtml

2008/07/14 - Suspect Soldiers: Is There a Link Between Postwar Stress and Crime?

Mon, 14 Jul 2008 09:59:13 +0200

By Russell Carollo
Sacramento Bee
July 14, 2008

Lance Cpl. Briones' criminal history in Kings County began long before he experienced the stress of a combat zone, and that criminal history is directly connected to his ending up in Iraq.

"He wasn't a person who I would classify as a real upstanding citizen, before or during the military," said Kings County Deputy District Attorney Adam Nelson.

Briones was arrested on felony drug charges on July 20, 2003, after Hanford police received complaints about intoxicated people at a convenience store. Officers found seven baggies in Briones' pockets that they reported contained marijuana and money, an indication he had been selling drugs, according to Nelson.

Briones was "very intoxicated," the police report says, and he "was out of control at the jail and had to be restrained several times to keep him from hurting himself or others."

Later, Nelson said, "his attorney contacted our office and said the guy wants to go into the military. At the time, we said that would probably be the best thing for him."

The office agreed to drop charges if Briones enlisted, but Nelson now believes that agreement was a mistake.

Shortly before he deployed to Iraq in 2005, Briones was charged with drunken driving in Orange County, not far from the Marine Corps' Camp Pendleton. He pleaded guilty and was sentenced to three years' informal probation.

In 2006, the Marine Corps charged Briones with stealing nearly $4,000 in night-vision goggles and binoculars in Iraq and with trying to send two 9 mm pistols in the mail. The Marines also accused Briones of a rape at Camp Pendleton.

That same year, he came home on leave to Kings County, stole a pickup and drove it into a living room, with a blood-alcohol level nearly double the legal limit.

A police report described Briones' behavior in the jail as "combative," similar to his behavior in jail before he joined the military.

Still, his war experiences were quickly blamed.

"My boss was getting crank calls at his house, swearing at him because he's prosecuting this hero," Nelson said.

Briones faced a maximum sentence of three years and eight months for vehicle theft, DUI and vandalism, but he pleaded guilty only to vandalism and received a two-year sentence. All the military charges were withdrawn shortly after the accident.

Nelson said a psychiatric evaluation found that Briones "was suffering from stress, but that it was not an excuse for what he did."

War Trauma Bill Signed

Because of links to the Haditha killings, the Briones case was making headlines worldwide as the chairwoman of the California Assembly's Veterans Affairs Committee was pushing fellow lawmakers to offer veterans treatment in lieu of prison.

"I brought (Briones) up, I remember, during the committee," said Assemblywoman Nicole Parra, from Hanford in Kings County. "I didn't know the specifics of the case to say he had PTSD, but I said … you've got to believe that (the war) had to have had some kind of impact."

Told that Briones had been arrested on felony drug sale charges prior to his service, Parra said, "Yeah, so he sold drugs. But again, he went to war, saw horrific crimes being committed. Did that time and experience in Iraq affect him when he got back?"

The first version of the bill would have mandated that judges divert veterans diagnosed with PTSD to treatment. The governor vetoed it.

"The trauma of war is unfortunate, but justice for crime victims and the safety of the public must remain a paramount concern of the criminal justice system," Gov. Arnold Schwarzenegger wrote in his veto message.

The version signed by Schwarzenegger in September 2006 empowers California judges to bypass sentencing guidelines and choose between treatment or jail for veterans convicted of any crime.

‘He Got Into The Service?’

The media and the public have focused most of their attention on the war records of returning veterans who commit crimes, not their criminal records.

Mastermichael Ramsey was one of more than 100 veterans identified in a New York Times series linking crimes by veterans to post-traumatic stress.

But Ramsey's criminal history began in his hometown of Milwaukee long before he joined the Army and long before he experienced the stress of a war zone.

Thirteen days after his 17th birthday, in May 1999, Ramsey was accused by Milwaukee police of threatening to "shoot and kill" someone. He was ordered to court on a charge of disorderly conduct, but failed to appear.

Two days later, Ramsey was accused of stealing a Toyota and driving it to school, resulting in a six-month jail sentence, which was stayed, and a two-year probation term. Six months after his sentencing, Milwaukee police restrained Ramsey at Harold S. Vincent High School as he shouted profanities and tried to physically confront a school official, who had accused him of gambling.

Ramsey was charged with disorderly conduct and again missed a court appearance, prompting the court to issue a warrant for his arrest.

Within four months, Ramsey was accused of shoplifting, and two months later, police records show, undercover Milwaukee police purchased drugs from Ramsey's roommate at their residence. Ramsey, who was on probation at the time, was arrested there on outstanding warrants.

On Valentine's Day in 2002, Ramsey was arrested on a charge of carrying a concealed weapon after he tried to enter Federal Plaza in Milwaukee with a pellet pistol in his backpack.

Within four months, he went into the Army and subsequently deployed to Iraq.

"He got into the service with that kind of record?" asked Deputy Inspector Edward Bailey of the Milwaukee County Sheriff's Office. "It surprises me not as a law enforcement officer. It surprises me as a prior-service Army officer."

In November 2005, Ramsey and two other soldiers were drinking heavily, violating a military prohibition on consuming alcohol in Iraq. The two other soldiers began to argue, according to Ramsey, and one of them, Spc. Chris Rolan, shot and killed Pvt. Dylan Paytas.

Ramsey's account of what happened that night was the only version of events provided at Rolan's court-martial, since Rolan didn't testify. Rolan was convicted of unpremeditated murder, and Ramsey was discharged for what the military described as "other-than-honorable" reasons.

In August 2006, after Ramsey returned from Iraq, he told the FBI that he had helped lure Columbus, Ga., cabdriver Jack Horne to a remote area, where an accomplice shot Horne in the head and neck. An FBI agent's affidavit says Ramsey then helped drag Horne's body off the road and later used Horne's ATM card to withdraw money.

Ramsey helped lead law enforcement officers in Georgia to the spot where the cabdriver was robbed. Horne's body was found there about 20 feet off the road.

Stephen Glassroth, who oversees the federal public defender's office representing Ramsey, said it's premature to discuss whether post-traumatic stress will be used as a defense.

"That will come out in opening statements," Glassroth said.

Not Blaming War

Not all military personnel who commit civilian crimes ever experienced war firsthand, and even some of the ones who served in a war zone have chosen not to blame war-related stress.

Tennessee National Guardsman Rusty Rumley never served in a war zone. On Feb. 27 of this year, he shot four people at a Bristol, Tenn., apartment complex before killing himself.

Rumley was a convicted felon when he entered the Guard, which wasn't required to check his criminal record because he had prior active duty service. A Tennessee National Guard spokesman said that policy was changed after the shooting.

Ian Bowers served in Iraq for about two months, and a military spokeswoman said he likely didn't see combat. When he was accused in a fatal drunken driving accident in Madison, Wis., his attorney did not use the war as a excuse for the crime, although Bowers' service was mentioned during his sentencing hearing.

"I don't know that Iraq had much of anything to do with this," said attorney Bill Ginsberg. "This is your run-of-the-mill drunk driving."

Still, an editorial in the local Madison newspaper portrayed Bowers as among a group of veterans who "have had no problems with their lives or the law before their war service," and Bowers also was included in the New York Times series linking crimes by veterans to PTSD.

In 2004, when Bowers was 17, he was charged with theft after officers reportedly found him near a Madison shopping area wearing a pair of stolen $70 boots and two pairs of jeans, one with a sales tag still on it. He pleaded no contest to stealing the boots, but police could not determine where the pants had come from.

One month later, Bowers' mother complained to deputies that her sons were smoking marijuana and she had found stolen property in her house, including BB guns. Six months later, the mother again called authorities, saying Bowers had confronted her after she found him with another boy who had been smoking marijuana.

"She was extremely disturbed and frightened by the behavior," a sheriff's report says, adding that Bowers' mother feared he "wanted to physically harm her."

Bowers pleaded no contest to a disorderly conduct charge in the second incident and paid a $243 fine.

In February 2006, weeks after pleading guilty to speeding more then 20 mph over a posted limit, Bowers enlisted in the Army.

On leave at Christmas that year, Bowers was driving a 2002 Chevy Impala when it collided with another vehicle, leaving two dead and two injured.

Bowers pleaded no contest to two counts of homicide and one of injury by intoxicated use of vehicle, and in January of this year he was sentenced to 13 years in prison.

Short-Lived Rehabilitation

As word of the California law spread, Assemblywoman Parra's office fielded calls from lawmakers in other states, including New York, Montana and Minnesota.

Minnesota tried to take the California law further, proposing that judges be empowered to divert veterans to treatment even before their criminal cases were decided.

"Presumably if you get treatment and everything is fine, then that stay becomes permanent," said Hennepin County, Minn., prosecutor Pat Diamond. "You walk away without anything on your record."

"It was a route that we thought wasn't appropriate."

Opposition from prosecutors and victims advocates led Minnesota lawmakers to rewrite the law. A version similar to the California bill became law in May, making Minnesota the second state to pass such legislation.

Minnesota attorney Brockton Hunter wrote the new bill, and his inspiration was a client, former California-based Marine Anthony Joseph Klecker, who also entered the military with a troubled past.

Klecker was expelled from Como Park Senior High School in St. Paul for carrying a knife to school, Hunter said. Soon after graduating from another high school, he learned his girlfriend was pregnant.

"He worked several jobs, various stuff, low-level, hourly wage jobs," Hunter said. "He was trying to find direction in his life, and he was trying to find a career to support his new family."

During high school and after graduation, Klecker collected several traffic citations, was cited for underage drinking and – he admitted to a probation officer – used marijuana periodically. Days before he joined the Marine Corps in November 2000, he was arrested on suspicion of drunken driving, registering a blood-alcohol level of more than 0.10 percent, but the charge was reduced to careless driving.

Klecker's Marine unit, based near San Diego, was among the first to deploy for Iraq, and the unit engaged hostile forces several times, according to his attorney and court records. In one incident that Hunter said significantly contributed to his client's PTSD, Klecker fired a machine gun into a civilian van that moved toward him despite warning shots.

"He never did find out if he killed anyone innocent," says a memorandum that Hunter filed in court to support his plea for treatment instead of prison. "This experience has probably been the hardest one for Tony to live with."

In the months following his discharge from the Marines in late 2004, Klecker joined the Minnesota National Guard. Back home, his drinking led to at least two arrests for barroom altercations, one of them a felony arrest for terrorist threats that resulted in an acquittal.

Hunter said he met Klecker when he represented him for one of the assault cases, and he called Klecker's behavior "classic PTSD." The two bonded, Hunter said, as Klecker's problems continued.

On the night of Oct. 27, 2006, while on probation for one of the other assault cases, Klecker drank shots for hours at a St. Paul bar. Early the next morning, the car he was driving rammed into a concrete freeway barrier, knocking it into the opposing lane. Sixteen-year-old Deanna Casey, driving home from a late shift at a McDonald's, smashed into the barrier, then collided with the cab of a semi-truck that hit the same barrier and flipped over.

PTSD became the centerpiece of Hunter's plea for special treatment.

The New York Times series cited Klecker, too, saying that he saw "fierce combat in Iraq and struggled with nightmares and rage," but rather than seek treatment for PTSD, it said, he "tried to blunt his symptoms with heavy alcohol use." A subsequent Times story, published just last week, continued to depict Klecker as a victim of PTSD but mentioned part of his pre-military background.

At the time of the fatal accident, Deanna Casey was dealing with her own problems. She had been sexually assaulted by her uncle, who was sentenced four months earlier. Like Klecker, the uncle, a Minnesota state trooper, blamed PTSD, caused by his job.

"My daughter was assaulted on Christmas Eve 2004," Catherine Casey said. Deanna had trouble sleeping in a dark room after the assault, she said, adding that "if anyone was suffering from PTSD, it was her."

Klecker's probation officer recommended 57 months, but the judge, apparently moved by Klecker's war record, sentenced him to treatment, community service, probation and, in effect, time served.

His rehabilitation was short-lived.

Klecker's probation was revoked following two altercations at a veterans treatment facility, where he also was accused of carrying a knife. This time, the judge sentenced him to four years, but he could be eligible for release in fewer than 18 months.

Why, Catherine Casey asked, could Klecker not have served his prison sentence first and then received treatment?

"If we just treat them and don't punish them at all," she said, "they may not understand."

External link: http://www.sacbee.com/101/story/1080273.html

2008/06/28 - Haditha Cases Continue to Unravel

Wed, 2 Jul 2008 23:57:39 +0200

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

2008/06/25 - CBS to Appeal Ruling on Marine Interview

Fri, 27 Jun 2008 10:30:05 +0200

By Chelsea J. Carter
Associated Press
June 25, 2008

San Diego - CBS News said it plans to appeal a ruling by a military appellate court that ordered a judge to review unaired footage of an interview given by a Marine squad leader charged in the killings of 24 Iraqis.

CBS News spokeswoman Sandra Genelius said Wednesday the news network would appeal the finding by the Navy-Marine Corps Court of Appeals, which remanded the case to a military court.

The appeals court ruling said a judge must review the footage to determine the legal basis for the television network's refusal to turn over unaired "60 Minutes" footage of its interview with Staff Sgt. Frank D. Wuterich.

The appeals court also ordered the judge, Marine Lt. Col. Jeffrey Meeks, to decide what, if any, newsgathering privilege would prohibit the network from complying with a prosecution subpoena.

The decision by the appellate court comes after a military prosecutor appealed a judge's decision to throw out a subpoena, saying the unaired footage is vital to the case because it contains admissions by Wuterich of crimes in the attack in Haditha, Iraq, on Nov. 19, 2005.

CBS News has 30 days to file its appeal.

Wuterich "apparently admits in an unaired segment that he did in fact order his men to 'shoot first and ask questions later,'" Marine prosecutor Capt. Nicholas Gannon said in a motion filed in early February.

Meeks had ruled that prosecutors did not need the CBS footage to get the evidence they needed.

Wuterich, 27, of Meriden, Conn., faces voluntary manslaughter and other charges in the Haditha 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 are accused of shooting five men at the scene, after which Wuterich allegedly ordered his squad into several houses, where they cleared rooms with grenades and gunfire, killing Iraqis, including women and children.

In the interview aired March 15, 2007, Wuterich recounted to CBS correspondent Scott Pelley his recollection of the events that led to the deaths.

Attorneys for CBS News, which is a division of CBS Corp., called the subpoena "unreasonable and oppressive."

Wuterich's attorney, Neal Puckett, said CBS' appeal indefinitely postpones Wuterich's court-martial.

"It puts his life on hold basically. He is waiting to get back into court," Puckett said.

Authorities originally charged eight Marines - four enlisted men with counts related to the killings and four officers in connection with the investigation. Charges were dropped against five men and a sixth, 1st Lt. Andrew Grayson of Springboro, Ohio, was acquitted of charges he hindered the investigation.

A judge dismissed charges earlier this month against Lt. Col. Jeffrey Chessani of Rangely, Colo., after finding that a four-star general overseeing the case was improperly influenced by an investigator. Military prosecutors are appealing that ruling.

Wuterich is currently the sole defendant. He has pleaded not guilty.

Puckett said once the CBS News matter was resolved, they would pursue an undue command influence motion - similar to the one that resulted in dismissal of charges against Chessani.

Copyright © 2008 The Associated Press.

External link: http://ap.google.com/article/ALeqM5hNUaTPsL6OBHarjCDUGxJ0EYsm9AD91HFH083
________________________________________________________________________________________

Court orders review of ‘60 Minutes’ Haditha outtakes
Media outlet says it will appeal ruling; won't give up unaired material

By Mark Walker
North County Times
June 25, 2008

A military judge has been ordered to determine if prosecutors can view unaired portions of a television interview with Staff Sgt. Frank Wuterich, a Camp Pendleton squad leader charged with manslaughter in the slaying of 24 Iraqi civilians.

The directive from the Navy-Marine Corps Court of Appeals in Washington comes after the judge sided with CBS attorneys in February and quashed a government subpoena for the potentially damaging outtakes.

The interview was broadcast on "60 Minutes" in March 2007. Wuterich's attorneys said they agreed to the session to "humanize" their client who had been portrayed in some reports as leading his men in a wanton rampage following a roadside bombing.

The ruling handed down Friday directs the judge, Lt. Col. Jeffrey Meeks, to review the outtakes in private to "develop the factual and legal basis for any CBS refusal to comply with the federal subpoena."

It also requires that he determine whether "any asserted newsgathering privilege applies to limit or preclude disclosure of necessary evidentiary audio-video material in this case."

Sandra Genelius, a "60 Minutes" spokeswoman in New York, said CBS attorneys plan to appeal the ruling.

When he argued for the unaired material, the prosecutor, Capt. Nicholas Gannon, said Wuterich "apparently admits in an unaired segment that he did in fact order his men to 'shoot first and ask questions later.'"

Wuterich is charged with nine counts of voluntary manslaughter and related offenses for slayings that took place in Haditha, Iraq, on Nov. 19, 2005.

Scott Silliman, a Duke University law professor and director of the Center on Law Ethics and National Security, said the ruling does not mean the prosecution will ever see the unaired material of the interview broadcast in March 2007.

"It's an interim ruling that says the judge should at least review it to decide if any is relevant and should be allowed," Silliman said during a telephone interview.

When they argued against the subpoena, the network's attorneys said the government was in effect trying to gain access to its reporter's notes. Federal courts generally deny prosecutor's efforts to obtain notes and unbroadcast material if they find the material can be obtained by traditional investigative measures.

Wuterich's attorney Neal Puckett said defense attorneys not directly associated with the case also may join in an appeal. The attorneys are worried that a precedent allowing a judge to see material that would not routinely be available could set a dangerous precedent in military law, Puckett said.

Wuterich's court-martial was supposed to start in June, but has been delayed indefinitely by the "60 Minutes" issue. The Connecticut native remains on duty at Camp Pendleton pending resolution of his case.

Charges against seven other Marines originally accused of crimes at Haditha have been withdrawn, dismissed or resolved by a jury's not-guilty finding.

In the most recently decided case, a judge last week dismissed dereliction of duty charges against the man in charge at Haditha in 2005, Lt. Col. Jeffrey Chessani.

The former head of the 3rd Battalion, 1st Marine Regiment, Chessani was accused of criminally failing to order an investigation into the civilian deaths. Prosecutors have since filed a notice that they intend to appeal the judge's finding that unlawful command influence tainted the government's case beyond repair.

External link: http://www.nctimes.com/articles/2008/06/25/military/zd4b6ae5d825e0f8a88257473006a8aa8.txt

2008/06/21 - Haditha Victims’ Kin Outraged as Marines go free

Sat, 21 Jun 2008 22:41:58 +0200

By Leila Fadel
McClatchy Newspapers
June 21, 2008

Haditha, Iraq - Khadija Hassan still shrouds her body in black, nearly three years after the deaths of her four sons. They were killed on Nov. 19, 2005, along with 20 other people in the deadliest documented case of U.S. troops killing civilians since the Vietnam War.

Eight Marines were charged in the case, but in the intervening years, criminal charges have been dismissed against six. A seventh Marine was acquitted. The residents of Haditha, after being told they could depend on U.S. justice, feel betrayed.

"We put our hopes in the law and in the courts and one after another they are found innocent," said Yousef Aid Ahmed, the lone surviving brother in the family. "This is an organized crime."

No one disputes that Marines killed 24 men, women and children in this town in four separate shootings that morning. Relatives said the attack was a massacre of innocent civilians that followed a roadside bomb that killed one Marine and injured two. Marines say they came under fire following the bomb.

Nonetheless, military prosecutors filed charges that ranged from murder to covering up a crime. Three Marines were relieved of their duties then, and U.S. Rep. John Murtha, a former Marine, famously called the incident "murder" on television.

One by one, the cases fell apart. American and Iraqi witnesses provided conflicting accounts. The investigation began months after the incident, and many Iraqis who could have testified were unable to travel to the United States. Furthermore, several Marines were granted immunity.

Last week, a judge dismissed charges of dereliction of duty and failure to investigate filed against the highest ranking officer implicated, Lt. Col. Jeffrey Chessani. The Marine Corps plans to appeal.

The dismissals have deepened the victims' relatives' grief. Many say they feel deceived after having collaborated with U.S. investigators who came into their homes, collected evidence, took testimony, and ultimately failed to hold the Marines accountable.

"Right now I feel hatred that will not fade," said Ahmed. "It grows every day." Charges against two Marines who allegedly killed his brothers were dropped in August 2007.

All charges of murder in this case were dropped and at least seven Marines were given immunity to allow them to testify against Staff Sgt. Frank Wuterich, the squad leader. His charges now include voluntary manslaughter of at least nine people.

Wuterich has always maintained that he made the right decision, believing his Marines were under threat.

While other Marines' accounts have differed from his, Wuterich told the CBS News program 60 Minutes last year that he shot at five unarmed men outside a white car because he believed they were a threat when they started to move away from the car. At the first home they raided, where women and children were inside, he said he told his men to "shoot first and ask questions later", because he believed the Marines were coming under "sporadic" fire from the dwelling.

Wuterich said that he didn't consider killing 24 people a massacre and that he did what he did to protect his Marines from what he perceived to be a threat.

"I remember there may have been women in there, may have been children in there," he told 60 Minutes. "My responsibility as a squad leader is to make sure that none of the rest of my guys died ... and at that point we were still on the assault, so no, I don't believe [I should have stopped the attack]."

This is how the residents of Haditha recall that day: U.S. Marines were apparently bent on revenge after a roadside bomb killed one of their own. They killed four unarmed men and an unarmed taxi driver. Then they threw grenades and entered two homes. In the Younes' household, they killed eight people, including two toddlers, a 5-year-old and a mother recovering from an appendectomy.

In an adjacent home, they killed seven people, including a 4-year-old and two women, according to death certificates and one of the children who survived. Across the street, residents of two houses shared by a family were pulled out. The men were separated from the women as the Marines asked them about weapons.

Family members said they had one AK-47 in each house, which Iraqi law allows. The Marines forced the women and children into one house at gunpoint, then took four brothers to a back bedroom and executed them, the family said.

Yousef Aid Ahmed was not at home when the killing occurred. He is now the sole breadwinner for his mother and extended family.

His father became ill after the shootings, and later, the family said, went blind from grief. Ailing, he lingered in a small bedroom where his sons were killed. One was gunned down to the left of the bed, a second to the right. The third man's body wound up inside a closet and the fourth was propped against the wardrobe. Despite a fresh coat of paint, the ceiling still bears grey spots where the men's blood spattered. They were all shot in the head.

The relatives seldom go into this room.

The Marines told a different story. Lt. Col. Paul J. Ware, an investigating officer with the Navy Marine Corps Trial Judiciary gave this account: Lance Cpl. Justin Sharratt, a Marine who acknowledged killing three of the brothers, told investigators that the four brothers were holed up in a back bedroom where the Marines later found two AK-47s. Ware wrote in the report that the evidence made the Iraqi's story implausible and their accounts were inconsistent.

The report didn't say whether there was any evidence that the AK-47s were fired. The report also implied that the family may have made up their story for the $10,000 in compensation for the deaths of civilians and that their credibility should be questioned because they were women and a teenager.

"Witness accounts are not credible," the report said about the case of one Marine accused of killing three of the brothers. "Although $10,000 does not appear to be a large amount of money...such a sum of money was equal to 4 times the average annual salary of a typical resident of Haditha. Prior to making these claims, no payments were made to the Ahmed family."

Relatives said they accepted the money after authorities told them it would help the case. Now they wish they'd never taken the cash.

"Right now I feel hatred that will not fade," said Yousef Aid Ahmed. "It grows every day."

"I have no brothers and sisters," Khaled Jamal said. "Now I have no father and my uncles are gone. Put yourself in my shoes." Once a stellar student, Khaled is now failing.

The sense of betrayal has made family members reluctant to keep telling the story.

At the house where Safa Younes now lives with her uncle, her uncle refused to allow her to talk about that day.

Safa, now age 14, is the sole survivor of the Younes family household. She passed out in fear when the shootings began and awoke under the dead bodies of her family members, she and her uncle Yaseen recounted to McClatchy in a 2006 interview four months after the slaying.

She heard the moaning of her brother Mohammed and tried to get him to stand up to go to her uncle's home. Bleeding profusely, he couldn't move. She cradled him in her arms until he died. Then, covered in her brother's blood, she ran to her uncle's home, her uncle and Safa recounted to McClatchy in 2006.

This week he refused to allow Safa to speak of the tragedy again.

"It's enough. We spoke to many journalists and human rights groups," Safa's uncle said. "It brought us nothing. I lost her whole family; I don't want to lose her to."

Iman Waleed lost everyone in her family save her little brother. The 12-year-old tells the story quickly and matter-of-factly now. She's told it at least 20 times to journalists, investigators and human rights groups.

"The Americans came in and they entered through the kitchen door. My father was in the room reading the Quran and they shot him," she says in a monotone voice, her green eyes looking at the floor.

Then, she continued, they threw a bomb and killed her grandfather, and then they killed her grandmother. Her uncles were next, she said. The first died instantly and the second was shot more than once. Finally the Marines came to the living room where Iman cowered with her mother and two young brothers. They shot her mother and her three-year-old brother that was cradled in her arms. She and her brother Abdul Rahman, nine at the time, were wounded but survived.

Her brother still does not speak of that day. According to Iman, he's afraid to talk about it. He plays with his cousin of the same age in the house where they live with an uncle and pretends that it never happened.

For Iman it is the memory of the family that she lost that is hardest to talk about. Everything is "normal," now she says. Her life continues.

"I miss every one of them," she said. "I wish I could forget it...I think about it less now."

The legal rationales behind the dismissal of many charges against the Marines don't matter to the Iraqi families. They told the world there was a massacre, they said, and still no one listened.

"What should we do?" Abdul Razak said. "They are all found innocent. What more do they need?...They shouldn't have been found innocent."

She dropped her head.

"I'm one of a million...I am nobody." she said. "Why did they choose us from everyone? Why did they separate us and kill us.... Why did they come and kill our young men and leave us alive?"

Charges Against Marines Related To The Haditha Investigation

Lt. Col. Jeffrey R. Chessani

Violation of a lawful order and willful dereliction of duty were both dismissed on June 17, 2008. The Marine Corps plans to appeal the recent decision.

Sgt. Sanick P. Dela Cruz

The charges of unpremeditated murder for five people and making a false official statement were dismissed April 2, 2007. He was granted immunity after the charges were dropped.

1st Lt. Andrew A. Grayson

Grayson was found not guilty of all charges after being accused of obstructing justice in the Haditha case on June 3, 2008. On Dec. 27, 2007 the charge of dereliction for failing to investigate a suspected violation of the law of war was dismissed

Capt. Lucas M. McConnell

The charge of unpremeditated murder in the killings of three brothers and dereliction for failing to "ensure" a "thorough investigation was initiated," were dismissed on Sept. 12, 2007. He was granted immunity and ordered to cooperate with "all parties" looking into the 24 killings in Haditha.

Capt. Randy W. Stone

Charges that include failing to ensure an investigation and accurately report a suspected violation of the law of war were dismissed.

Lance Corporal Stephen B. Tatum

Charges of Involuntary manslaughter of two people, unpremeditated murder of two others, negligent homicide of four people, aggravated assault and reckless endangerment were dismissed on March 28, 2008. Tatum was given testimonial immunity in the Haditha case.

Staff Sgt. Frank D Wuterich

Charges against Wuterich for unpremeditated murder of 17 people were dismissed on Dec. 27, 2007 and another was withdrawn on Aug. 29, 2007. Now he is charged with voluntary manslaughter for killing or ordering the killing of at least nine people. He is also charged with reckless endangerment, aggravated assault, obstructing justice and dereliction. The charges were referred to the general court-martial on Dec. 31, 2007. He has yet to go to trial.

Source: Iraq Investigations

External link: http://www.mcclatchydc.com/iraq/story/41817.html

2008/06/20 - Haditha Marine May Sue Murtha

Fri, 20 Jun 2008 23:48:15 +0200

By Bryant Jordan
Military.com
June 20, 2008

A Marine who was charged with failing to investigate the November 2005 killings of 24 Iraqis in the village of Haditha may sue Rep. John Murtha, D-Pa., for libel and defamation of character, according to a report in the online news site, World Net Daily.

Attorney Brian Rooney made the comments during an interview with right-wing radio talk show host Michael Savage after a military judge dismissed the case against his client, Lt. Col. Jeffrey Chessani, on June 17 after finding that a general overseeing the case was improperly influenced by an investigator of the 2005 shootings.

According to the WND report, Rooney said any suit against Murtha, as well as a Time magazine reporter who wrote the first major piece on the killings, would have to wait until Chessani is fully "out of the woods."

That’s not the case, yet, as prosecutors on June 19 filed a notice to appeal the dismissal. That move was made possible by the military judge’s decision to dismiss the charges against Chessani "without prejudice."

Nearly all the Marines originally charged in connection with the Nov. 19, 2005, killings have been cleared, which has only helped to fuel the anger of many against Murtha, who early on claimed the killings had been done in cold blood, not self defense.

"There was no firefight," Murtha said in May 2006. "There was no IED that killed these innocent people. Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood."

Rooney told Savage it would be difficult to sue a sitting congressman, but that it can be done.

"If he leaves his realm of speaking from the congressman's point of view - then he can be sued for libel and defamation," Rooney said.

Also eyed in a possible lawsuit is Tim McGuirk of Time. Rooney said the massacre story was planted by insurgents, and picked up on by McGuirk for his story.

Prosecutors appealing the dismissal of charges against Chessani have 20 days to file a written appeal, spelling out why they disagree with the ruling by the judge, Col. Steven Folsom. Defense attorneys then have 20 days to respond, said Chessani's military attorney, Lt. Col. Jon Shelburne.

It is unclear from the one-page court filing what the prosecutor, Lt. Col. Sean Sullivan, will use as his grounds for appeal. A telephone call to the Marine Corps seeking comment was not immediately returned.

Folsom also barred Marine Forces Central Command from future involvement in the case. Joint Forces Command and the 1st Marine Expeditionary Force were also excluded from filing future charges.

It was not immediately clear who would take over the case and who would have authority to refile charges.

Authorities originally charged eight Marines - four enlisted men with counts related to the killings and four officers in connection with the investigation. Charges were dropped against five men and a sixth, 1st Lt. Andrew Grayson of Springboro, Ohio, was acquitted of charges he hindered the investigation.

Only one man currently faces prosecution - Staff Sgt. Frank Wuterich of Meriden, Conn., who is charged with voluntary manslaughter. He has pleaded not guilty.

Associated Press contributed to this report.

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