Haditha: Ware, Sharratt, Tatum, Wuterich, Mattis

The Haditha cases, so far, are progressing as I’d expected: hollow or weak charges, inadequate investigations, able defense work revealing much not covered or downplayed by the initial news reporting rush to judgment, judicial relief for the defendants (although their lives and pockets, otherwise, have been scarred and picked clean), and little or no reflection by the major media on their own hysteria.

If you haven’t kept up, or need a review, over the past one-plus year, I’ve posted many analyses (see here for links) of the Haditha incident, the charges and proceedings against several Marines.

The most significant case, that of Staff Sgt. Frank D. Wuterich, is now scheduled to begin next Thursday. As I’ve pointed out before, most lately here, due to his rank and leadership during the incident SSgt Wuterich may expect a tougher time than the other enlisted Marines. As I also pointed out, there seems, again, to be evidence that may contradict the themes presented in the media.

In the Washington Post’s reporting of the Article 32 Investigating Officer’s recommendation that Lance Corporal Stephen Tatum’s charges be dismissed, the following concluding paragraph has been often picked up by others, interpreted to indicate weakness in the charges against SSgt Wuterich:

"On 19 November 2005, in the mere seconds LCpl Tatum had to make a decision, he acted in accord with training, to engage targets that a fellow Marine was firing at, without time to fully assess the situation and reflect on what SSgt Wuterich was doing," Ware wrote. "It is only in hindsight that we can start to question why SSgt Wuterich was firing his weapon at children and conclude that LCpl Tatum should have deemed such actions were unwarranted."

That interpretation may be correct, but is too hasty and incomplete.

Judicial proceedings are retrospective, or hindsight, by their very nature. What is crucial is whether there is credible evidence to support the charges. Of course, it is also crucial to the deliberations whether that evidence is credible to those who actually have experienced and understand similar conditions.

That’s where the importance to the justice enters of the hearings being conducted by recent combat veterans, and not journalists or politicians from an armchair.

The same Marine legal officer, Lt Col Paul Ware presided over LCpl Sharratt and LCpl Tatum’s hearings, and will over SSgt Wuterich’s.

There’s a distinct difference between Ware’s analyses of Sharratt and Tatum’s charges. Whereas, Ware found those against Sharratt simply “incredible,” Ware did not use that term for Tatum’s. Instead, (pdf of Ware’s analysis here) Ware just did not find the evidence enough to proceed.

Ware said as to Iraqi deaths in first house,

The government fails to provide evidence sufficient to make a finding that there are reasonable grounds to charge the accused with any criminal offense in relation to events that occurred in house 1.

Ware adds the charges’ verge into theory and are unrealistic to the circumstances.

[P]ursuing charges for offenses in house 1 under this theory [distinguish “between hostile targets and innocents before firing his weapon” in combat] would significantly impact combat operations and is an unwarranted, ill conceived, and dangerous application of restraint.

Regarding the second house in which Iraqis were killed, Ware’s recommendation is more circumspect, and rests on similar grounds of inadequate evidence, but does not necessarily find them “incredible”:

Although an Article 32 is not a forum to resolve issues of admissibility at a trial, it is important to advise when evidence produced at an Article 32 is unlikely to be admissible or there are questions as to its admissibility.

Ware is referring to issues of Tatum being denied counsel when he requested it, inaccurate translations of Iraqi depositions, and questionable forensics due to Iraqi refusal to exhume the bodies.

Ware concludes, therefore,

There is insufficient evidence to find reasonable grounds for offenses charged based on events in house 1 and although there are reasonable grounds for charges arising out of the events in house 2, I do not recommend referral of those charges. The evidentiary hurdles are too great…

If there’s a decision to proceed to trial, Ware recommends only a charge of “reckless endangerment.”

Ware puts great weight on what he called a “key issue,”

Does criminal liability apply to a Marine, if that Marine reasonably relies on another Marine’s perception of hostile intent or act and does not personally observe any hostile intent or act, and subsequently it is found that the Marine who made the hostile act or intent determination was either negligently mistaken or willfully ignoring the rules of engagement?

As it should be, there is no indication in Ware’s recommendations for Sharratt or Tatum that Ware will do anything less than carefully weigh the evidence and its value in proving a case regarding Wuterich.

Until Wuterich’s hearing unfolds, it’s premature to predict what may transpire, except that there will be due consideration of evidence and conditions, of “facts and circumstances,” as normal to judicial determinations.

From Ware’s “key issue” question, it appears that Ware will be looking closely at SSgt Wuterich’s leadership decisions, both as to “facts and circumstances.”

Lt Gen James Mattis is the convening authority over the cases. Under the Uniform Code of Military Justice, it is his responsibility to either accept or reduce Article 32 recommendations.

From a comment made on Lt Gen Mattis’ behalf by a spokesman regarding another separate incident, it appears that rank is one of the matters that Mattis deems important:

"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].

The interviews conducted by Mark Walker, the North County Times (San Diego-Camp Pendleton area) reporter who has provided ongoing coverage of the Haditha cases, speak to contending expectations:

Gary Solis, a former Marine Corps judge and attorney and now a recognized authority on the law of war, said after reading Ware's report that he concurs with the recommendation.

"I have said since the outset that this would be a difficult case to prove because all of this occurred in the course of a combat operation," said Solis, who teaches military law at Georgetown University.

Ware's references to Wuterich taking the lead in storming the houses suggest that the staff sergeant may have more difficulty explaining away the charges, Solis said.

"The ground has been laid in this report for a hard case against Wuterich," he said.

But Neal Puckett, Wuterich's lead attorney, disagreed with that assessment.

"We believe the report reflects favorably on our case," Puckett said, declining further comment.

I’ll have more comments as there are more solid indications, rather than conjecture. There’s already been too much, most of it by Iraq war opponents wrong, but we should be more judicious, as the Marine Corps has been.