Chessani Court Martial: Railroading or Speed Bump?

The merits of the case against Lt Col Jeffrey Chessani have always appeared weak. Yet, the matter of Marine discipline being taken seriously within the Corps’ command, it was proceeding to a court martial, originally set for last April. Settlement of defense motions has delayed the trial. Yesterday it was reported (as usual, most complete news report from Mark Walker at the North County Times) that one of those motions, “unlawful command influence”, may derail or alter the charges.

In military justice, “unlawful command influence” is what might be referred to as “railroading,” or setting a fixed destination to court martial proceedings regardless of the case’s merits or appearing to bias the outcome.

Unlawful Command Influence (UCI) has frequently been called the "mortal enemy of military justice." UCI occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.

While some types of influence are unlawful and prohibited by the Uniform Code of Military Justice (UCMJ), other types of influence are lawful, proper, and in certain circumstances a necessary part of leadership. The prohibition against UCI does not mean that a commander may abdicate responsibility for correcting disciplinary problems. Rather, the commander must vigilantly insure that the command action does not encroach upon the independence of the other participants in the military justice system.

That’s the next step to be determined in Lt Col Jeffrey Chessani’s court martial proceedings for alleged failure to adequately investigate the Iraqi deaths at Haditha in 2005.

In brief, Chessani’s defense says that his charges stem from and are contaminated by command influence. Although the prosecution isn’t allowed to comment publicly (which doesn’t mean we won’t hear off-the-record leaks in coming days, as we have before), their likely distinction is that only command responsibility occurred, to understand and monitor what became in the media a major incident treated as detrimental to or undermining our Iraq mission.

The legal hurdle for an allegation of unlawful command influence to be taken seriously is set purposely low, that there merely be “some" appearance of the possibility. In that case, the burden shifts to the prosecution to either prove beyond a reasonable doubt there wasn’t or that it has not affected the case.

That will be the subject of the next hearing.

According to the press release from Chessani’s defense counsel:

Colonel Folsom [the military judge] found that the defense met its burden of presenting “some evidence” of actual and apparent unlawful command influence. His decision was based upon the evidence that the Generals who controlled the disposition of the case were apparently or actually impermissibly influenced by Marine lawyer Colonel John Ewers, who was permitted to attend numerous, closed-session meetings in which LtCol Chessani’s case was discussed.

Colonel Ewers was one of the investigators of the Haditha incident from the beginning. He is a witness that the prosecutors plan to call in its case against LtCol Chessani. Consequently, he should not have been involved in any of the meetings in which the disposition of the Haditha cases was discussed with the Generals who convened the court martial. During the hearing, the defense called Col Ewers as a witness. Col Ewers admitted that he was present during at least 25 meetings in which LtCol Chessani’s case and the other Haditha cases were discussed with the Generals and other legal advisors.

Interestingly, with the judge’s ruling not being released, the defense press release doesn’t refer to its many other allegations of unlawful command influence contained in its motion. That indicates these weren’t granted.

Nonetheless, some of them may emerge in some form during a court martial, as another defense motion had been granted to call former Commandant of the Marine Corps General Michael Hagee to the stand, depending upon what Hagee is allowed or compelled to testify.

For now, as the Chessani defense team says, “The Military Judge also told us and the prosecutors to come prepared to discuss remedies.” That indicates an openness by the judge toward continuing the court martial.

In an earlier hearing, the judge indicated he is hewing to a narrow attitude toward the charges. When the defense asked for a dismissal based on the weaknesses of the case, that Lt Col Chessani couldn’t reasonably be expected to interrupt his widespread responsibilities during ongoing battles over an area the size of South Carolina to investigate what to all appeared a normal if unfortunate combat action, the judge replied, “"Show me the evidence that he ever reported a suspected law of war violation." Testimony is to be heard at the court martial that the Haditha Town Council did ask for an investigation. However, as the defense will point out, the council members were themselves highly suspect or involved with those we were fighting.

The defense wants a new convening authority to reconsider the charges. The prosecution may contend that isn’t necessary as there wasn’t unlawful command influence or it hasn’t affected the case, or may have some other suggestion likely lesser than starting over from scratch.

The defense’s press release calls the ruling a “major speed bump.” It remains to be seen whether it will derail the train.