Grayson Haditha Charges Crumbling

As in other cases heard so far against the Haditha Marines charged with a panoply of whatever the prosecution feels might stick to the wall, the court martial charges against Lt. Andrew Grayson seem to be slipping.

In brief, Lt. Grayson is alleged to have wrongfully ordered the destruction of photos of the Iraqi casualties at Haditha, lied to an investigating officer and obstructed the investigation, and improperly been separated from the service.

The charges were raised at his Article 32 hearing, and from the evidence presented most were surprised that Lt. Grayson was recommended to court martial at all. During the conclusion of the public Article 32 hearing last November, the inspecting officer said:

he has serious doubts over the validity of criminal charges filed against a Marine lieutenant in the aftermath of the slaying of 24 Iraqi civilians two years ago.

The hearing officer, Col. Robert Stahlman, said that if 1st Lt. Andrew Grayson was guilty of dereliction of duty for not ordering an investigation into the slayings, numerous other members of the 3rd Battalion, 1st Marine Regiment command staff should have been similarly charged.

"I would have expected everyone in that battalion would have been charged and obviously that didn't happen," Stahlman said….

The colonel's comments came at the close of a hearing at Camp Pendleton over the last week to help determine if Grayson, a 26-year-old intelligence specialist, should be ordered to face trial by military court-martial.

Stahlman presided over Grayson's Article 32 hearing, which concluded after four days of testimony and an unusual Saturday session. Article 32 hearings are akin to probable cause hearings in civilian courts.

The colonel also said he was anxious to see the prosecution's written arguments on the charge that Grayson lied to investigators.

"I think it is a stretch to charge that," Stahlman said.

At this point, the public doesn’t know what happened in the prosecution’s brief, but Lt. Grayson was referred to court martial.

Lt. Grayson’s court martial charges were:
Charge I: Violation of the UCMJ, Article 92 (Dereliction) (Maximum punishment: Dismissal, forfeiture of all pay and allowances, and confinement for 6 months)
Specification 1: willfully failed to ensure that this possible, suspected, or alleged violation of the law of war was accurately reported to higher headquarters.
Specification 2: willfully failed to ensure that a thorough investigation was initiated into this possible, suspected, or alleged violation of the law of war.
Charge II: Violation of the UCMJ, Article 107 (False Official Statement) (Maximum punishment: Dismissal, forfeiture of all pay and allowances, and confinement for 5 years)
Specification: did with intent to deceive, make a false official statement.
Charge III: Violation of the UCMJ, Article 134 (Obstructing Justice) (Maximum punishment: Dismissal, forfeiture of all pay and allowances, confinement for 5 years)
Specification: did wrongfully endeavor to impede an investigation.
Charge IV, improperly separated from service.

Charge III, the most serious, obstruction, was dismissed by the court martial judge.

While Kasprzyk [the military judge] did not tell the jury why the charge was gone, it appears a technicality led to the dropping one of the four charges facing Grayson, who is fending off accusations related to the aftermath of the killings that occurred Nov. 19, 2005.

Grayson's civilian defense attorney, Joseph Casas, said outside of the courtroom that Kasprzyk dropped the charge because prosecutors failed to allege that Grayson knew the Haditha case was the subject of a criminal investigation when he allegedly tried to obstruct justice.

Prosecutors accused Grayson of telling a junior officer to delete photos of the aftermath of the killings ---- and that the order came after Grayson learned the Haditha killings were under investigation.

Casas said the investigation Grayson is accused of trying to thwart was not a criminal probe at that time, but rather an administrative look at whether there had been a failure in leadership by officers.

The charge of improperly obtaining separation from the USMC now appears on shaky ground:

The key witness was Lt Grayson's first military-appointed lawyer, Major (now lieutenant colonel) Kevin Woodard. He advised Grayson throughout his separation process.

On the witness stand, Woodard was asked, "What did you do when you found out that Lt Grayson was not on legal hold?"

The reply was "nothing". Woodard checked with his superiors and was told that neither he nor Lt Grayson were under any ethical or legal obligation to inform the government that it had made an error by not placing the lieutenant on legal hold, which would have halted the separation process.

In Woodard's view, the government had screwed up and he couldn't believe the government had made that kind of mistake. He told Lt Grayson to be honest in the separation process, to never use his rank to influence the process, and that he had no obligation to tell anyone that there were charges hanging over him.

Lt Grayson checked with Woodard a final time before picking up his DD214 and was told to proceed.

Another key witness, Grayson’s commanding officer, testified there was nothing wrong with the separation:

Lt Grayson’s former commander, Lieutenant Colonel Andrew Gillan of the 2nd Intel Battalion, was asked why he signed Lt Grayson’s discharge. LtCol Gillan responded that Lt Grayson was not on legal hold.

A senior member of the panel submitted a question: Senior “Did anyone direct Lt Grayson not to check out until all legal matters were settled?”

LtCol Gillan said no.

The Uniform Code of Military Justice Article 84 says that:

“Any person subject to this chapter who effects an enlistment or appointment in or a separation from the armed forces of any person who is known to him to be ineligible for that enlistment, appointment, or separation because it is prohibited by law, regulation, or order shall be punished as a court-martial may direct.”
Elements.
(1) That the accused effected the enlistment, appointment, or separation of the person named;
(2) That this person was ineligible for this enlistment, appointment, or separation because it was prohibited by law, regulation, or order; and
(3) That the accused knew of the ineligibility at the time of the enlistment, appointment, or separation.

However: “It must be proved that the enlistment, appointment, or separation was prohibited by law, regulation, or order when effected and that the accused then knew that the person enlisted, appointed, or separated was ineligible for the enlistment, appointment, or separation.”

It may be a slim point of law, but Grayson seems to have operated just this side of breaking it, as advised by Marine counsel. Whether the judge and jury feel that a more overriding matter of an officer’s honor is at stake remains to be seen.

The testimony to the other charges repeats what was covered in the Article 32 hearing: Lt. Grayson operated per USMC regs in ordering the destruction of photos not germane to his intelligence task of identifying hostiles.

Most importantly, SA Marshall testified that Lt Grayson told him that he had seen photos taken by his subordinate, SSgt Laughner, and told him to delete them. Lt Grayson said he did so because photos because it was policy. The photos had no intelligence value. Marshall testified that he did not suspect criminal behavior on the part of Lt Grayson.

SA Marshall’s statements were in stark contrast to testimony from an Army investigator, Colonel Gregory Watt. It is Lt Grayson's alleged prevarications with Col Watt that brought the lieutenant to this court martial….

During the [later] interview, Lt Grayson told Col Watt there were no intelligence photos of the incident in Haditha without specifying that the photos, ruled as having no intelligence value, had been deleted. Later during the one-hour interview, however, Lt Grayson did tell Col Watt that some photographs taken at the scene had been deleted. Based on this, Col Watt reported back to prosecutors that he believed Lt Grayson had not been cooperative or truthful. That led to the lieutenant being charged on December 21, 2006.

The prosecution faces a difficult task in proving that Lt Grayson deliberately withheld information. At one point during the day on Friday, Col Watt was asked, "Did you ever specifically ask Lt Grayson to provide photographs?" Col Watt's answer was no.

Up the ranks, Lt. Grayson's performance in Iraq was highly commended, as many witnesses have testified. The remaining charge, dereliction, seems more appropriately charged against the prosecution.