Lt. Phan deserved better

By: North County Times Opinion staff - | Thursday, May 3, 2007 11:00 PM PDT ∞

Our view: Dropped charges follow trial riddled with troubling developments

There's an old joke about the term "military justice" being an oxymoron. Unfortunately for Marine 2nd Lt. Nathan Phan, who this week had criminal charges against him dropped , that joke probably isn't very funny.

Last summer, Phan was charged with three counts of assault and one count of filing a false statement. Only indirectly, those charges stemmed from an investigation into the April 2006 slaying of a retired Iraqi policeman in Hamdania. Eight men under Phan's command, seven Marines and one Navy corpsman, were eventually charged with the April 26 slaying of Hashim Ibrahim Awad.

But Phan was never accused of participating in or having any knowledge of that grisly event. Instead, investigators pursuing the Hamdania killing charged Phan with choking two Iraqi detainees, placing an unloaded pistol against one's mouth and spraying soda pop into the nose of the other, saying it was acid. They also charged Phan with falsely filing a radio report stating that he had released one of the insurgents being questioned.

Although the charges against him have been dropped, the Phan affair exposes some of the worst lapses and abuses of the military justice system. Seen in the worst light, Phan may not have simply been a victim of circumstance -- he may have been a scapegoat.

During a preliminary hearing earlier this year, three enlisted men testified that the Naval Criminal Investigative Service, also known by its acronym NCIS, had falsified statements about them having witnessed Phan commit the alleged assaults. After those disturbing revelations, the presiding officer, Lt. Col. William Pigott, made clear his intention to ask higher-ups to conduct two investigations, one examining the actions of attorneys who dealt with the witnesses and the other to review the conduct of NCIS. The results of that request are still pending.

If your only exposure to NCIS has been the television show of the same name, you're entitled to surprise. But if there's one thing that the recent court proceedings at Camp Pendleton have demonstrated, it is that NCIS appears woefully unprepared for such probes. For starters, NCIS still relies mostly on written statements, not video and audio recording as do most civilian criminal investigators. That leaves a lot of room for fuzzy memories, or worse, funny business. We hope the agency changes this outdated policy posthaste.

As part of his plea deal, Phan admitted that he had exceeded "the permissible limits of the official rules of engagement regarding interrogation of insurgents."

Phan's platoon was given an excruciatingly difficult assignment: Trained to execute combat and patrol missions, they were asked instead to gather intelligence about insurgent activity in Hamdania, in the volatile Anbar province northwest of Baghdad. They were given a grand total of 45 minutes of instruction on detainee handling and counterinsurgency work. These Marines were clearly under pressure and underprepared. Still, an intelligence officer at battalion headquarters testified that despite their limited training, the squad was doing exemplary work.

Defenders of the eight men charged in the April 26 slaying have used the "fog of war" to justify their crime, but the damning testimony and guilty pleas of four Marines and the Navy corpsman have made that rationale difficult to swallow. Phan, however, is another story, and deserves the benefit of the doubt afforded him by even the military justice system.

There is no question that any criminal charge against U.S. military personnel based on accepted standards of evidence should be brought to trial. But to try Lt. Phan on such flimsy evidence -- a 24-year-old who volunteered to do his country's dirty work and lead men under the most difficult of circumstances, while most of his peers are still trying to decide what they want to be when they grow up -- is unacceptable.

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