The Court Martials That Could Break Or Strengthen The Marine Corps

What no foreign military has ever accomplished may be done by the Haditha court martials ordered today, if they are not carefully understood and reported, by pro- and anti-Iraq war or military advocates. Lawyers might be expected to be single-minded, but the rest of us, and the juries, need to be more even-tempered. The Marine Corps’ determination in finding the truth must be respected, and the Marine Corps well-heralded discipline and respect for it may become stronger.

Lt. Gen. James Mattis ordered Lt. Col. Jeffrey Chessani and Lance Cpl. Stephen Tatum to trial by court-martial. Chessani will be tried for dereliction of duty and violation of a lawful order. Tatum faces trial on charges of involuntary manslaughter, reckless endangerment and aggravated assault.

"Lt. Gen. Mattis made his decision after consideration of information developed from investigations by Marine, Army and Naval Criminal Investigative Service investigators as well as evidence produced during an Article 32 investigation hearing," said a written statement issued late Friday afternoon.

As discussed here, the charges against Lt Col Chessani are a matter of Marine discipline that will ultimately be a matter of judgment by his peers.

However, the forwarding of Lance Corporal Tatum to court martial, and likely Staff Sergeant Wuterich as well, will be a donnybrook, both legal and military, that will long impact the fighting spirit of the Marine Corps.

The charges against Tatum have been reduced, but are still serious. At Tatum’s Article 32 hearing, Lt Col Ware recommended that charges against Tatum be dismissed. However, Ware wrote that reduced charges “better tracks that the killing was done as a response to the IED explosion and was an emotional response with the intent to kill insurgents.”

Chessani’s attorney reacted vehemently to the forwarding to court martial.

Chessani’s attorneys at the Thomas More Law Center in Ann Arbor, Michigan, said they are particularly disappointed with the decision to bring their client to trial because of the “chilling effect” the case has on the military’s sacrosanct chain of command.

Attorney Brian Rooney, himself a Marine combat veteran and one of the attorneys representing Chessani said second-guessing the actions of combatants is tantamount to the Soviet “commissar” theory of command. During the Communist era of the former Soviet Union political officers called commissars could countermand the orders of combat leaders in the name of political expediency.

“You might as well have a political officer in every battalion to make sure every order is politically correct,” Rooney said.

Indeed, there already is something close to that, the Judge Adjutant General officer assigned to each unit, making legal judgments that may or may not be correct in the conditions, but sometimes creating a hesitation to act. There are important, life critical, reforms to be made in JAG.

Tatum’s attornies reacted similarly, although more muted,

Tatum “did not commit any crime, and we will take the fight to the courtroom,” lawyers Jack B. Zimmerman and Kyle R. Sampson said in a statement. “We will vigorously challenge the government’s case, and nothing will be left undone in defense of this fine young Marine.”

“We are very disappointed that the commanding general did not follow the recommendation to withdraw and dismiss all charges made by the experienced trial judge who heard all the evidence during the Article 32 investigation,” they said. The Article 32 investigating officer, Lt. Col. Paul Ware, had recommended dismissal of the charges.

Mattis’ decision to send the case to trial “imperils every young Marine and soldier who faces a split second decision in combat,” Zimmerman and Sampson warned. “The success of future infantry combat operations is at stake. We remain convinced that the military justice system eventually will reach the right result.”

On the other hand, looking at Lt Col Ware’s recommendation that Staff Sergeant Wuterich proceed to court martial, although on reduced charges, Ware wrote that Tatum’s testimony is critical to Wuterich’s case:

Of all the witnesses in this investigation, it is LCpl Tatum that is most critical to any prosecution of SSgt Wuterich. His statements to NCIS are inadmissible against SSgt Wuterich. Only by having LCpl Tatum testify can the Government place SSgt Wuterich inside the back room of House 2. Bottom line is, LCpl Tatum must testify to substantially what is contained in the statements in order to place SSgt Wuterich inside the back room of House 2. [Where two adult women and six children were in the far back corner, there being some doubt whether there was sufficient light to see them, and time, in the circumstances.]

Earlier, Ware expressed some frustration that Tatum, “would start to become vague as to who was in the back room. [Whether Wuterich was there.] It is but one more discouraging development in the search for the truth of what happened and why it happened.”

The Marine Corps is, as always, doing its duty. Let it, whether in battle, or in court.

UPDATE:
Mark Walker at the North County Times, where Haditha case coverage has been superior, follows up Saturday morning with this observation:

"This demonstrates that Gen. Mattis has a mind of his own when it comes to making a decision and that the recommendations of the hearing officer are just that ---- only recommendations," said Gary Solis, a former Marine Corps judge and prosecutor, adding that he believes Mattis has been fair in deciding to withdraw charges against some of the others accused. "The circumstances of the incident ---- combat under fire ---- have played a significant role, and he has given the benefit of the doubt to some of those men."