Pendleton bracing for start of alleged war crime case

By: MARK WALKER - Staff Writer | Tuesday, August 15, 2006 10:24 AM PDT ∞

NORTH COUNTY ---- The focus at Camp Pendleton is about to shift from teaching troops the latest warfare techniques to trying Marines for alleged war crimes in Iraq.

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Separate cases involving two Camp Pendleton units allege members of two platoons violated the Pentagon's rules of engagement and killed 25 Iraqis, many of whom authorities say were clearly noncombatants.

One case, which arises out of the slaying of a 52-year-old Iraqi man in the village of Hamdania on April 26, has landed seven Marines and a Navy corpsman in the base brig on charges of premeditated murder and kidnapping.

The other case, which surrounds the deaths of 24 civilians including women and children in the city of Haditha last Nov. 19, has generated worldwide attention, condemnation from a sitting congressman since sued for libel by a Marine staff sergeant, and could result in more criminal charges lodged against Camp Pendleton-based troops.

One military law expert and retired career Marine said that, taken together, if the evidence shows the cases match what has been portrayed in the allegations and in media accounts, the overarching message is a failure of leadership.

"If the reports in the media are correct, it's all going to come down to a breakdown in leadership and training," said Georgetown University military law professor Gary Solis, who spent 26 years in the service, including stints at Camp Pendleton where he served as the chief judicial officer for the 1st Marine Division.

First hearing set for Aug. 28


Two weeks from Monday, the first public court hearing in one of those cases is set to begin inside a base courtroom. During that Article 32 hearing, investigators are expected to allege Lance Cpl. Jerry Shumate Jr. was one of several Kilo Company platoon members from the 3rd Battalion, 5th Marine Regiment who conspired to kidnap and kill Hashim Ibrahim Awad.

The Article 32 hearing is akin to a pre-trial criminal hearing in a civilian court and is conducted to determine whether charges against an accused person should proceed to trial.

Two other Article 32 hearings for the remaining defendants are scheduled to take place in September and October as the military metes out its form of justice in the death of Awad, who has never been described by an official authority as an insurgent or a suspected insurgent.

Solis said it won't be the first time high-profile cases have been prosecuted at the base.

"Unfortunately, there always seems to be some sort of high-profile case," he said in a telephone interview last week. "During the Vietnam War era, we had murder cases and cases arising out of racial problems."

While Awad's killing has received far less national and international attention, the accusations against the seven Marines and their squad's Navy corpsman are as damning as any in the more than one dozen war crimes cases prosecuted since the March 2003 U.S. invasion and subsequent occupation of Iraq.

The "Pendleton 8," as supporters have dubbed them, are accused of snatching Awad from his home in the village of Hamdania, binding his hands and feet and then executing him next to a hole near a roadway to make it appear he was an insurgent encountered in the midst of planting a roadside bomb.

To complete the portrait of the killing scene to support the squad's contention that Awad was killed in a firefight, authorities allege the troops also stole an AK-47 assault rifle, fired rounds into the air and placed the spent shell casings next to his body to make it appear he had fired upon them.

If the men are ordered to trial on the recommendation of the hearing officer and concurrence of their commanding general, it would be their first opportunity to enter a formal plea to the accusations. Their attorneys and family members steadfastly maintain the men are innocent.

Solis said that if the troops wind up facing courts-martial and are convicted, the greater damage will be to the Marine Corps as an institution.

"Ninety-nine percent of the Marines are not only performing honorably, but performing heroically and it's too bad that these cases overshadow that truth," Solis said. "But I also know that when you give a 19- or 20-year-old a high-power weapon and put them in a war environment, bad things are going to happen.

"While some may sit back and say, 'Well, I'm glad they did it,' most Marines will say 'Damn it, you have sullied our reputation.' "

Haditha according to Sgt. Wuterich


As the first sworn testimony is about to be heard in the Hamdania incident where one Iraqi was killed, the case in which two dozen Iraqis were shot to death continues to loom large over Camp Pendleton.

When first reported, the incident in Haditha spawned international condemnation and two investigations, one by the Naval Criminal Investigative Service that still is not complete, and a second probe conducted under the direction of an Army general into the actions of Marine commanders after learning of the deaths.

Few details have emerged on what the criminal investigation has found. The report on how commanders responded and actions they subsequently took is being withheld by the Marine Corps pending completion of the criminal probe.

About a dozen troops from Kilo Company's 1st Squad of the 3rd Platoon from the 3rd Battalion, 1st Marine Regiment are believed to be involved in the Haditha investigation. That probe was launched by the Naval Criminal Investigative Service after Time magazine reported in March that surviving family members complained the Marines went on a rampage after a roadside bomb killed a platoon member, Lance Cpl. Miguel Terrazas of El Paso, Texas.

Two weeks ago, one of the senior enlisted men present during the events in Haditha, Staff Sgt. Frank Wuterich, filed a libel suit against U.S. Rep. John Murtha, D-Penn., who has made numerous public comments saying Marines in the Haditha case went on a rampage were "cold-blooded killers" who "killed a number of civilians without anybody firing at them. That's what you're going to find out."

Wuterich has vehemently denied that version of events, and his attorneys have proposed that Murtha and a congressman who made similar statements, U.S. Rep. John Kline, R-Minn., issue a public apology. If they do, Wuterich attorney Mark Zaid said the Marine will drop his libel suit against Murtha and not move to name Kline as a co-defendant.

As of Thursday, Murtha's office had not responded to that offer while representatives for Kline are in negotiations to resolve the matter, Zaid said last week.

According to Wuterich's complaint, this is what happened in Haditha:

- Wuterich, who was then a sergeant, was leading the platoon when his Humvee in a convoy of four vehicles was hit by a roadside bomb resulting in Terrazas' death.

- Wuterich stopped the convoy, noticed what is described in the complaint as being "full of military-aged men lingering near the incident site." When the men ran after being ordered in Arabic to stop, the Marines opened fire, killing them.

- A short time later, gunshots were heard from residences south of the road where the bomb attack took place. A four-man team that included Wuterich went to the house, kicked in the front door and began a search. The suit says one Marines fired a series of "clearing rounds" that killed several people who later turned out "to appear to be civilians," according to Wuterich's suit.

- The Marines believed insurgents may have fled the house to a nearby residence, which the Marines also raided, killing one man and tossing a fragmentation grenade.

- Wuterich's complaint says he then ordered the Marines to stop and moved a small group to a nearby house to watch the area. One man in all black clothing seen running from one of the houses previously searched was shot and killed, the complaint says.

- Another man seen running into a third house was followed by a group of Marines, who Wuterich's complaint says encountered that man and three others and killed them all as the Iraqis "attempted to fire their weapons."

"Other than those who have their own agendas to pursue through innuendo, leaks and rumors, no evidence has been publicly released that implicates young men of the 1st Squad, 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marine Regiment in any criminal activity arising out of the events of November 19, 2005," the complaint says. "Indeed, as there is none that exists, let those who say otherwise prove it."

Zaid said Wuterich is as anxious as anyone for the Naval Criminal Investigative Service to complete its probe and for military authorities to decide what actions, if any, they will take.

"We're waiting, just like everybody else," he said.

At Camp Pendleton


Thousands of troops from the I Marine Expeditionary Force are now returning from a seven-month deployment in Iraq. Those troops, like their commanders, are watching what happens to their comrades in the Hamdania case while at the same time waiting to see what happens in the Haditha case.

On Monday, the troops get a new leader when Lt. Gen. James N. Mattis assumes command from Lt. Gen. John F. Sattler over Marine Force Central and the I Marine Expeditionary Force based at Camp Pendleton.

Mattis is known as a blunt-talking "Marine's Marine" who, during the invasion of Iraq, was widely quoted as saying the troops he commanded would be "No better friend, no worse enemy," a quote first attributed to an early Roman dictator and general.

It will be Mattis who will receive the reports from a hearing officer on the Hamdania case and from any similar hearings that may arise out of the Haditha investigation. Lawyers for some of the defendants in the Hamdania incident have privately said they welcome Mattis' appointment, suggesting they think their clients may fare better under his command.

A source close to the Haditha case said last week that it could be weeks before authorities decide whether any criminal charges will be lodged as a result of that investigation.

But on Aug. 28, Camp Pendleton will see the formal courtroom unveiling in the Hamdania case when an Article 32 hearing opens against Lance Cpl. Shumate.

In anticipation of widespread media interest, the base has established a media center, spending about $760,000 to create a work space where as many as 100 reporters can monitor the hearing via closed-circuit television.

Military court rules are akin to those in federal court, which forbid use of any recording devices, meaning no photography or recording devices are allowed.

Reporters covering the hearings and any subsequent court-martials will not be allowed to record any of the courtroom testimony or capture any of the images shown on the video display.

Jurors the wild card


Solis, the military law professor, said he did not believe the ascension of Mattis as the commanding general deciding if the allegations move beyond the initial hearing stage will have much of an impact.

"The general is going to rely on his staff who rely on the prosecutors," he said. "Once charges have been preferred, that train has left the station and everyone is pretty much on board."

If the Hamdania incident moves forward to courts-martial on the premeditated murder charge, the cases will be heard by a panel of at least 12 uniformed jurors, one-third of whom can come from the enlisted ranks of units other than that of the accused if requested by the defendant. A sentence of death requires the jurors' unanimous agreement.

The real wild card, according to Solis, will be the jury ---- if the cases get that far ---- not the command structure or a possible decision to begin withdrawing U.S. troops from Iraq because of the continuing sectarian violence and specter of an all-out civil war.

"You never know what is going to affect a jury," he said. "The jurors, not the convening authority or the attorneys, are the independent force.

"What might have an effect are jurors' unspoken and undiscovered animus toward Iraqis and that could lead to results inconsistent with the evidence. We've already seen that in some cases where the jury convicts but fails to give any sentence."

Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.