LtCol Chessani Recommended for Haditha Court Martial

The Associated Press reports that it has acquired the recommendation of the hearing officer chairing the Article 32 proceeding of LtCol Jeffrey Chessani, battalion commander of the Marine unit involved in the Haditha engagement. The hearing’s investigating officer, Col Christopher Conlin, wrote that LtCol Chessani should face a court martial for two counts of dereliction of duty and a count of violating a lawful order by failing to investigate the Iraqi deaths in Haditha. The AP report just quotes these excerpts from the Investigating Officer’s Report:

“Lt. Col. Chessani failed to do his duty,” investigating officer Col. Christopher Conlin wrote in his report. “He failed to thoroughly and accurately report and investigate a combat engagement that clearly needed scrutiny.”

“To not have made every attempt to be on scene as this action developed, or to not have at least reviewed this action in detail ... is in itself negligent,” Conlin wrote. “The fact that one fireteam was solely responsible for 24 deaths in all direct fire actions should have solicited more than passing interest from the senior leadership of the battalion.”

Until the complete Report is available, it may be premature to second-guess the weighing of the evidence by Col Conlin. But, the evidence does appear to be fairly clear.

I reviewed my clippings file of the hearing and a précis of the testimony. The following facts are clear:
· Chessani was held to be an exemplary officer and man by all who know him;
· Chessani’s geographic area of responsibility was comparable in size to South Carolina;
· Chessani’s forces were engaged in several heavy actions that same day;
· The information he was provided right after the incident from his reporting Marines, and intelligence he possessed, indicated that the Haditha engagement and outcome were not out of the ordinary, though possibly tragic;
· Chessani did sign off on a report to his superiors, even if prepared by others, that he did visit the Haditha scene although he had visited another nearby;
· Chessani did receive a letter in English from the Haditha town council, eight days after the incident, claiming that the deaths were improper;
· Chessani was responsible to report any "possible, alleged or suspected" crime by his troops.

The purpose of an Article 32 hearing is to determine whether there is probable cause or sound ground to proceed to court martial. The above facts indicate there may be, at least in the judgment of the hearing officer. Marine officers are held to high standards. A court martial, a full trial of the evidence, does have rights of appeal and evidence that are actually a bit more liberal and favorable to the defendant than in civilian courts, reflecting the particular nature of military service. There is little justification to hold that LtCol Chessani’s rights and defense will not be adequately considered.

In that vein, let’s review some of the testimony at the Article 32 hearing:

Sgt. Maj. Edward Sax
The 3rd Battalion's sergeant major.
Testified that Chessani visited Haditha the same day as the ambush, but instead of going to the houses where the women and children died, he inspected another site where Marines had been injured in a separate engagement. The sergeant major advised Chessani not to go to the locations immediately following the killings because it was too dark and dangerous in the area.
Sgt. Maj. Sax, who worked closely with Chessani, called his former boss "by far the strongest moral leader I have ever served with in my life." When asked if Chessani would have investigated the deaths if he'd suspected the Marines had done something wrong, Sax replied: "Without batting an eye."
Sax also testified members of the Haditha town council gave Chessani a written allegation that some of those slain had been rounded up and shot by Marines.

Maj. Carroll Connelley
One of the 1st Marine Regiment's command staff attorneys at the time of the incident.
· Frustrated by the dearth of details from lower-ranking Marines. After the incident, Connelley said he sought elaboration after an initial report was light on specifics. No commanders sought a probe into the deaths of two dozen Iraqi civilians in Haditha in the days and weeks after the incident, he said.
“I would've asked for an investigation” if reports had documented how no weapons or insurgents were found among the dead civilians, Connelley testified.
He said that in light of the misinformation, especially the premise that civilians got caught up in bona-fide combat, Chessani was not required to investigate the incident further.
"My understanding, at least at the time, was that they were out in the open," Connelly said of the first report, which said 15 civilians had been killed as a result of the bombing and small-arms fire. "(The report) says they were out moving past the vehicles."
If the initial report had in any way indicated that the civilians were killed inside their homes where no insurgents nor weapons were found, Connelly said he would have raised questions.
He also testified that a formal demand for an investigation from the Haditha town council eight days after the killings was never brought to his attention. He said he also did not know until much later that the dead included several women and children found lying in supplicant positions inside a bedroom.
"It was something different than what I had always pictured," Connelly said.

W. Hays Park
Lawyer in the Department of Defense. Parks was identified as one of the key authors of the military's rules requiring commanders to report any "possible, alleged or suspected" crime by their troops. Parks said that such rules were adopted after the My Lai massacre in Vietnam, in which commanders made only cursory inquiries in the days after the mass killing.
Called by the government, Parks spent more than six hours on the stand, spending much of it explaining how he helped write a regulation that requires an investigation whenever a "possible, alleged or suspected" violation of the law of war occurs.
Parks testified that the idea behind the rules of investigation is "to encourage the commander to continue the battle but turn over incidents to competent investigators rather than doing it themselves."
He said that the deaths of at least five Iraqi women and children should have raised enough suspicion from Marine commanders for them to order an immediate investigation.
The prosecutor, Lt. Col. Paul Atterbury, described in graphic terms how some of the victims died. He said that the women and children found in a bedroom in one of four homes stormed by the Marines after the bombing appeared to have died from head wounds.

Given that detail, Parks said that even a cursory examination by commanders on the scene should have indicated that something was wrong.
Atterbury then looked at photos of some of the civilians killed in Haditha. He asked Parks whether the fatal shootings of men, women and children, some of them shot in the head, would amount to an incident that merited investigation.

“The substantial number of head shots suggests to me that you have a nonresisting force. ... (It) raises issues,” Parks said.
After hearing several descriptions from Atterbury about what happened in Haditha, Parks said: "The fact is, a crime appears to have been committed. How could you not investigate that?"
He testified repeatedly that “when in doubt,” commanders must report any potential offense to higher headquarters.
Parks testified that while Chessani had a obligation to report the Haditha deaths to his superiors, he was not responsible for investigating the incident. (Two of the three charges against Chessani involve his alleged failure to probe what happened in Haditha.)
Quote: "You can't use Fallouja-style room-clearing in a place like Haditha," Parks testified

Maj. Gen. Richard Huck
Former commanding general of the 2nd Marine Division based at Camp Lejeune, North Carolina, who at the time of the incident, was in charge of troops in Haditha. The general testified via video hookup from the Pentagon.
The general’s testimony in the Lt. Col. Chessani hearing changed considerably from his testimony in the Capt. Randy Stone hearing.
According to the Associated Press…
[Investigating Officer] Conlin and prosecutors asked Huck about a Haditha town council meeting Chessani attended eight days after the killings. At that session, prosecutor Lt. Col. Paul Atterbury said local residents gave Chessani written allegations that women and children were targeted inside their homes and that a group of men were "essentially executed" as they stood beside a car with their hands in the air.
Huck said that he should have been made aware of the document but was not, and that he learned that the town council meeting had occurred only when he testified at a hearing last month for another officer charged in the case.
(It should be noted that Col. R. Gary Sokoloski, the general's aide, has refused to testify.)
In the courtroom, Maj. Gen. Huck testified he relied on his lower level commanders for full and accurate reporting of events.
One of the first reports Huck saw indicated that Chessani had gone to the site of the bombing, a factor he said gave him a sense that the battalion commander was getting all the facts. According to other testimony, Chessani did not inspect the site of the ambush.
The general also said that a complaint by the Haditha town council on Nov. 27 that three entire families ---- including several women and children ---- had been killed in one of four homes stormed by the Marines following the bombing should have been brought to his attention. Chessani attended a meeting in which that complaint was issued in writing along with a request by the Iraqis for a formal investigation.
Regarding this report from the Haditha town council, Huck testified: "If that document was presented, this needs to be reported and that commander should be thinking 'Perhaps I should get an investigation started."
According to the Los Angeles Times…
Chessani's report, filed that night, indicated that the civilians were killed by a roadside bomb and a firefight that followed between Marines and insurgents barricaded in the homes.
Evidence in Chessani's Article 32 preliminary hearing at Camp Pendleton showed that no weapons or insurgent shell casings were found in the homes and that the homes were more than 100 yards from where a bomb had killed a Marine and wounded two.

Defense attorneys say Chessani let his superior officers know that there had been civilian casualties, including women and children.

Prosecutors respond that the report was misleading in suggesting that the Marines were responding to gunfire and that some of the casualties had been caused by the roadside bomb.
According to the North County Times…
Late in the day of the killings, Chessani sent a report to regimental headquarters stating that 15 civilians and eight insurgents had died....
When asked by prosecutor Lt. Col. Paul Atterbury whether he had ever been made aware that three entire families were killed, including several women and children, Huck said he did not learn about the families until after an investigation was ordered in February 2006.

"I would have expected any new facts or discoveries to be reported," he said.

Atterbury asked Huck whether he had ever learned that Haditha officials alleged within days that the men in the car were students who had been, in the prosecutor's words, "essentially executed by the Marines."

"That should have been reported," Huck said.
Quote: "I think the question is did he report everything that he knew, and I have some questions about that," Maj. Gen. Richard A. Huck, testifying via video from the Pentagon.

Another element is that the Haditha town council was known to be dominated by hostiles and, thus, less than reliable.

It may be suggested that LtCol Chessani is being subjected to a Libby-like prosecution for failing to report a crime that didn’t occur, as the previous Article 32 hearings have recommended no court martials.

On the other hand, the charges against LtCol Chessani, essentially, rest upon a commander’s responsibility to report any "possible, alleged or suspected" crime by his troops, and let others decide whether to investigate.

Law and judgments, also, rely upon “facts and circumstances.” They appear to, or should, restrain a politically CYA or literalist, and combat crippling, exercise after the event.

Time, and the court martial, will tell.