Haditha Prosecution Acknowledges Weak Case

Of course, the prosecutors of the Haditha Marines wouldn’t put it that way, but their actions reveal the weakness of their case. One knowledgeable participant in military law calls the prosecutors wide-scale granting of immunity unprecedented and indicative.

Aside from the immunity granted to one of the previously charged Marines, discussed here, and previously here and here with respect to the entire case, it’s now been revealed that another 7 Marines have been granted immunity.

A legal expert said by giving so many people immunity, prosecutors are taking a "conservative" approach to the case.
"These are legitimate moves by the prosecutor, who is very cautious," said Gary Solis, a former Marine Corps prosecutor and judge who teaches law of war at Georgetown University Law Center.

In other words, the prosecutors are trying to bolster their weak evidence.

The local newspapers to Camp Pendleton add information missing from the Washington Post treatment.

The San Diego Union Tribune adds:

However, not all the Haditha immunity deals are guaranteed to boost the prosecution's chances. The testimony of Lt. William T. Kallop, the sole officer at the killing scene, could support defendants' contention that they were following lawful orders.

Kallop reached the Haditha site minutes after the roadside bomb went off, according to military reports. In testimony given later to investigators, he said the squad leader, Staff Sgt. Frank D. Wuterich, and another Marine heard gunfire coming from a nearby house.

Kallop told the investigators that he ordered Wuterich and the other men in his platoon to “take the house.”

“I'm convinced that we did nothing wrong,” Kallop is quoted as saying in documents The Washington Post obtained from anonymous sources.
The Marines also killed people in two other homes and a nearby vehicle.

“During the four years as a military trial lawyer, I don't recall a defense witness ever being given immunity,” said Tom Umberg, a former military defense counsel, prosecutor and judge.

Umberg theorized that Kallop's immunity deal might help the prosecution avoid certain problems if the defendants file appeals. He also said prosecutors might use some portions of Kallop's testimony to their advantage.

The San Diego area North County Times adds:

"There are a lot of problems and it may well be that this list of immunity grants is evidence of that," said Mark Zaid, a Washington, D.C., attorney representing Staff Sgt. Frank Wuterich. "There are things about the government's case that have yet to come out that are very troubling." …

Zaid said a North County Times report last week that described several problems confronting prosecutors, including a questionable investigation of the Haditha incident by the Naval Criminal Investigative Service, underscores emerging issues in the case.

"What surprises me is this increasing number of grants of immunity," Zaid said Friday. "Are they looking to hold only a small number of people accountable for public relations reasons?

Some, if not all, of the immunity grants that have been approved by Lt. Gen. James Mattis are reportedly unconditional, meaning those men would not face any jeopardy if they make incriminating statements or do not testify as fully as prosecutors may wish. Mattis is the convening authority over the case as head of all Marine Corps forces in the Middle East….

Gary Solis, a former Marine Corps lawyer who teaches law at Washington's Georgetown University, said Friday that the number of men granted immunity strikes him as odd.

"If they are granting immunity to individuals who aren't alleged to have done anything wrong, you have to wonder if it is necessary. If they did do something wrong, why aren't they being prosecuted?"

Solis said that prosecutors may be working hard to find men willing to testify and not invoke their Fifth Amendment privilege against self-incrimination to buttress the case.

The attorney for one of those granted immunity, the officer who ordered the Marines to clear the houses, says:

Mr. McNeil continued, "News coverage of this event and Lt. Kallop's involvement has contained numerous inaccuracies and false statements. I will not comment on this except to say that I am confident that the true facts of the situation will be revealed in the course of legal proceedings,and like Lt. Kallop I am hopeful that a fair and impartial judgment of these events can then take place."

Mr. McNeil concluded, "I continue to be concerned about the numerous
leaks of confidential information in this case, much of which has been
misleading, biased and/or inaccurate."

Not to be delayed in that pursuit of prosecution via news leaks, the Washington Post obtained a copy of the report in June 2006 by Army Major General Bargewell. The WP summary's lead paragraph:

The Marine Corps chain of command in Iraq ignored "obvious" signs of "serious misconduct" in the 2005 slayings of two dozen civilians in Haditha, and commanders fostered a climate that devalued the life of innocent Iraqis to the point that their deaths were considered an insignificant part of the war, according to an Army general's investigation.

Later in the WP story:

Though Bargewell found no specific coverup, he concluded that there also was no interest at any level in investigating allegations of a massacre….

His investigation found that Marines and officers present that day immediately reported numerous civilian deaths to superiors but that the reports were "untimely, inaccurate and incomplete" -- failures he attributed to "inattention and negligence, in certain cases willful negligence."

The standards for reporting incidents involving civilians have been increased since. By some critics telling, that requires in midst of action reporting comparable to full after action police reports in domestic cases, creating in effect another restraint on aggressive responses to attack. This may be justified by the exigencies of guerrilla warfare, to avoid alienating population. But others experienced see it as possibly overshadowing the primary way to squelch it – death to attackers – and as harmful to morale and outside the reasonable bounds of military training and capacity.

In any event, the Haditha hearings are proving to be quite a spectacle, not only as to the throw-the-book charges levied by the prosecution in a politicized atmosphere, and the weakness of the witnesses touted by the media at the time to the global glee of U.S. adversaries, but also as to the extent that the prosecution has had to go to hang anyone in a court of law.