What's Next On Haditha

Two of the cases arising from the Haditha incidents that await determination are important to our conclusions.

Together with, but distinct from, the prior cases we will have a more complete understanding of both Marine justice and of the conditions under which Marines operate. The charges in each case are for largely separate actions within that day, and the involvement and responsibility of each defendant differed.

In the prior cases, the charges were either found without merit, “incredible” in the words of the Investigating Officer in the case of Lance Corporal Sharratt, or forwarded to possible administrative action and not court martial in the case of Captain Stone. (The Article 32 recommendation for Lance Corporal Tatum has not yet been announced.)

In both cases, the adjourning officer, Lt Gen James Mattis, under his authority to accept or reduce the recommendation of the Investigating Officer in Article 32 hearings, chose to dismiss the charges against Sharratt and Stone.

Mattis commented that Sharratt “did his best to live up to the standards, followed by U.S. fighting men throughout our many wars, in the face of life and death decisions made in a matter of seconds in combat.” Mattis commented that Stone may have committed “error of omission or commission” as a junior and new legal advisor with the Marines, but any such “does not warrant action under the Uniform Code of Military Justice” and Mattis has that Stone “now understands the absolute necessity for objective inquiry into the combat actions of our Marines in such an environment, especially when innocent lives are lost.”

Not only did the prosecution fail to offer a compelling case to the Article 32 hearings, but the level of involvement of Sharratt and Stone was deemed not central to either the course of events or its reporting, respectively.

The Article 32 hearing of battalion commander Lt. Col. Chessani recommended proceeding to court martial for inadequate investigation and reporting of Haditha. I discussed the finding and some contrary testimony here. There’s no doubt Chessani had command investigation and reporting responsibilities. There remains doubt whether in the circumstances of the day, the reports he had, and other responsibilities he was derelict in them.

The Article 32 hearing of Staff Sergeant Wuterich is set to start in late August. His leadership position and role in the killing of five Iraqis who’d exited their nearby taxi is held by the prosecution to be a clearer instance of chargeable conduct. While strongly maintaining his innocence, SSgt Wuterich’s defense has been fairly quiet of late, but one may expect a vigorous defense once the Article 32 hearing commences. For instance, an eyewitness to the aftermath of the taxi killings maintains that he saw AK-47’s stacked against the car. This was only recently revealed to the defense. Chessani’s lawyer, feeling his case as well is affected, said this was a “very serious omission,” also affecting Chessani’s defense. The witness’ observation undermines that the Iraqi’s were unarmed civilians who happened to wander into the area.

In the cases of Lt Col Chessani and SSgt Wuterich one may expect their rank to have more influence on Lt Gen Mattis’ considerations than in the prior cases.

An indication of Mattis’ thinking came from his spokesman in a separate set of cases.

"He (Mattis) balanced many factors to include their military experience, relative rank and position of authority and their specific involvement in the death of the Iraqi man as it was determined through the military legal process," Lt. Col. Sean Gibson wrote in response to questions about Mattis' decision [in Hamdamia cases].

In addition to facts and circumstances in each case, and relative involvement and authority, another issue remains key, rules of engagement, and their background to the cases.

The Los Angeles Times’ reporter on the cases, presents the contending ROE issues and says:

But the definitions of positive identification, hostile intent and hostile action are subjective, and thus can change from one area to the next, one day to the next, according to testimony.

The hearing officers and juries have been combat veterans, as is Lt Gen Mattis. Their first-hand experience with how “gray” and difficult it is to apply ROE in actual combat -- and the practicalities, as distinct from an armchair, retrospectively, or by those without such experience, is a key element underlying the judgments being made.

It should be no other way. That’s why we have a military justice system, to particularly reflect and reflect upon unique facts and circumstances rather than theories of war.