Stone case may set tone for Haditha prosecutions

By: MARK WALKER - Staff Writer | Saturday, May 5, 2007 10:42 PM PDT ∞

NORTH COUNTY -- A Marine lawyer's purported failure to fully probe the notorious slaying of two dozen Iraqi civilians in Haditha takes center stage at Camp Pendleton this week with the precedent-setting prosecution of Capt. Randy W. Stone.

Stone's case is the first of seven filed against officers and enlisted men from the base's 3rd Battalion, 1st Marine Regiment that will unfold this spring and summer as the incident reaches court 15 months after its disclosure touched off an international outcry and political firestorm.

At issue for Stone are dereliction-of-duty charges stemming from his actions after the killings. Prosecutors contend the Maryland native was criminally negligent in carrying out his job as the battalion legal officer by failing to fully investigate an alleged violation of the law of war.

Scheduled to testify during the hearing that begins Tuesday are a two-star general and several other officers who were part of the chain of command in Iraq when the killings occurred Nov. 19, 2005.

Defense attorneys are expected to ask Maj. Gen. Richard Huck why he did not order a full-scale investigation into the slayings that occurred after a roadside bombing tore apart a Humvee, killing a lance corporal.

The argument is that if Huck and his staff didn't question what happened, why would the much-lower-ranking Stone be expected to order a probe?

Many of the witnesses have been granted immunity, meaning anything they say cannot later be used to prosecute them. What those men say could set the tone for all the cases as several of the witnesses at Stone's hearing are expected to testify at hearings for the other defendants.

Even if the military justice system ultimately determines some or all the defendants acted properly, a finding that in effect would say the civilian deaths were a regrettable result of war, Haditha may forever -- fairly or not -- be synonymous with war crimes.

The case against Stone

Thad Coakley, a former Marine who prosecuted hundreds of court-martials at Camp Pendleton and served as a battalion lawyer in Iraq from August 2004 to March 2005, helped establish the system that puts lawyers such as Stone with combat battalions in war zones.

The lawyers are responsible for reviewing combat action reports to make sure there are no violations of the rules of engagement, which forbid the killing of civilians unless unavoidable.

"You have to make a decision as to whether it was a justified shoot and whether there is something more that needs to be explained," Coakley said during a telephone interview last week from his office in Texas. "If the lawyer is getting answers that sufficiently justify the action and forwarding those reports up the chain, then he is under no further obligation."

Stone's attorney, Charles Gittins of Virginia, maintains that is exactly what happened and that prosecution is unwarranted.

Gary Solis, a former Marine Corps attorney who teaches law at Georgetown University, said the charges against Stone are troublesome.

"It could open a Pandora's box by suggesting that lawyers should start looking over their commander's tactical decisions," he said.

At minimum, Solis said, the case sends a clear message to all the lawyers serving with combat battalions.

"It says that lawyers have a duty before, during and after a combat action," he said. "Staff judge advocates are now paying a lot more attention to these things."

In a paper for a military law journal, Solis wrote about the precedent the Stone prosecution establishes.

"Whether or not Capt. Stone is found guilty, whether his case ever goes to trial, a precedent is established for all the armed services: when law of war violations occur, the performance of duty of operational law advisers -- their decision making -- will be examined and, if found waning, charges may follow."

If the 34-year-old Stone is ultimately ordered to court-martial and convicted, he could face two years in jail and dismissal from the Marine Corps.

Hearing a harbinger

The hearing for the highest-ranking man charged in the case, Lt. Col. Jeffrey Chessani, is scheduled to begin May 30.

Chessani is being represented by the conservative, Christian-based Thomas More Law Center of Ann Arbor, Mich. Like Stone, Chessani, Capt. Lucas McConnell and 1st Lt. Andrew Grayson are accused of dereliction of duty.

Stone's Article 32 hearing is of keen interest to attorneys for all the defendants, said Robert Muise, one of Chessani's attorneys.

"What goes on at this 32 will show the direction the government wants to go so we will all get a glimpse of the prosecutor's theory of the case," he said.

Article 32 proceedings are akin to probable cause hearings in the civilian justice system and are used to help determine whether an accused should be ordered to trial.

Solis said the prosecution of the officers, and in particular the charges against Chessani, send a signal throughout the armed services.

"Any commander seeing a fellow commander charged in this case is now going to be a lot more careful any time he is presented with similar circumstances. That is not being lost on other commanders even if his case is not forwarded to trial."

Three enlisted Marines face unpremeditated-murder and negligent homicide charges for the deaths that included several women and children.

A fourth enlisted man, Sgt. Sanick P. Dela Cruz, had five murder charges against him dropped in exchange for his testimony, one of at least eight Marines granted immunity for that reason.

The man who led the enlisted defendants, Staff Sgt. Frank Wuterich, faces 13 counts of murder and two counts of soliciting another to commit murder.

Wuterich has said he regretted the deaths but justified his actions and those of the men he led. The killings were part of a legitimate response to the bombing and subsequent small-arms fire coming from nearby homes, he has said.

Nineteen of the civilians, including several women and children, died inside the homes. Five Iraqi men who emerged from a car that drove up moments after the roadside bombing which killed Lance Cpl. Miguel Terrazas, were the first to die.

Sending a message

Camp Pendleton established a media center last summer in anticipation of the Haditha court proceedings and the prosecution of another group of Camp Pendleton Marines in an unrelated Iraqi civilian death.

Numerous reporters, including some from foreign news services, are expected to cover the upcoming Haditha proceedings. The widespread interest stems from assertions that the Haditha was symptomatic of how U.S. troops mistreat civilians.

The slayings were first reported by Time magazine in March 2005, a disclosure that prompted Rep. John Murtha, D-Pa., to categorize the incident as a massacre carried out in cold blood.

Supporters of the accused point to Murtha's comment as evidence the prosecution is a response to political pressure. The accused, the defenders say, are being hauled into court to appease critics of U.S. tactics in Iraq and show that the military takes allegations of war crimes seriously.

Solis, who takes no position on the men's innocence or guilt, agreed the Haditha prosecution does have a public relations component.

"It sends a message to the international community that we take our obligations under the law of conflict seriously."

Michael O'Hanlon, a defense and foreign policy scholar at Washington's prestigious Brookings Institution, said that regardless of the legal proceedings, Haditha and the Abu Ghraib detainee abuse scandal will forever tarnish U.S. actions in Iraq.

"A major incident is attached to each and Haditha will be remembered for a massacre," O'Hanlon said. "There is not going to be anything that will downsize the improper use of force," he said.

Coakley, the former Marine lawyer, said the initial Time article unfairly suggested a wanton slaughter and forever colored the events at Haditha regardless of the facts.

"The way it was portrayed in that story and ever since is not what happened and runs counter to everything the Marine Corps stands for," he said. "You have a right to defend yourself, and this was a response to an attack.

"We do have an interest in holding people accountable, but it's not like these men were running amok."

While Coakley's comments echo what many have said since Haditha came to light, a Pentagon study released Friday is troubling for commanders -- even if the defendants are ultimately acquitted. Only 40 percent of more than 400 Marines interviewed last year said they would report someone in their unit for killing or wounding an innocent civilian.

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

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