Request for generals at next Haditha hearing denied

By: MARK WALKER - Staff Writer | Tuesday, May 22, 2007 8:34 AM PDT ∞

CAMP PENDLETON -- Prosecutors are resisting defense requests to have several former top U.S. generals in Iraq testify at an upcoming hearing for Lt. Col. Jeffrey Chessani, who is accused of failing to investigate the deaths of 24 Iraqi civilians in Haditha in 2005.

Chessani's attorneys want to hear what the generals knew and why, like their client, they didn't order an investigation into the deaths. Two of those it wants to testify, Gen. George Casey and Lt. Gen. Peter Chiarelli, were the top commanders in Iraq at the time.

Prosecutors rejected the request as "immaterial" in a one-sentence statement sent to Chessani's attorneys Monday.

"But that's just the government's position," said Brian Rooney, one of Chessani's attorneys. "We are petitioning the hearing officer and anxious to see what he has to say. The decision is ultimately his."

In the military justice system, a defense request for witnesses is first filed with prosecutors. If they reject the request, the defense can appeal to the hearing officer who has the authority to overrule the denial.

The denial also covered a requested appearance by Maj. Gen. Stephen Johnson, the man in charge of Marines in the Anbar province when the killing occurred. Rooney said Johnson's testimony could be crucial for Chessani, one of four officers charged with dereliction of duty for failing to order a probe immediately after the incident.

In early 2006, Johnson told Army investigators examining how Marine commanders handled the Haditha deaths that he didn't feel the deaths warranted an investigation and that killing of innocents in combat situations were not uncommon.

"It happened all the time," Johnson is quoted as telling the investigators in a report of his comments published last month in the Washington Post.

Chessani was commander of Camp Pendleton's 3rd Battalion, 1st Marine Regiment at the time of the incident, in which five Iraqi men who emerged from a car were shot minutes after a roadside bombing killed a lance corporal and injured two other Marines. Before the day was over, another 19 Iraqi civilians, including two women and five children, would die at the hands of Marines inside homes near the site of the bombing.

The men who carried out the killing claimed the deaths resulted from the roadside bomb and a subsequent firefight, a story that did not hold up when investigated several months later. Chessani was relieved as battalion commander when the unit returned home in April 2006.

Chessani's hearing to determine if he will face trial by court-martial begins at Camp Pendleton on May 30 and is expected to last through June 9. The Article 32 hearing is akin to a probable cause hearing in civilian court.

The first Article 32 hearing in the Haditha case ended last week and is now in the hands of a hearing officer, who will make a recommendation on whether defendant Capt. Randy Stone should stand trial for dereliction of duty.

Maj. Gen. Richard Huck, head of the 2nd Marine Division in Iraq at the time, testified during the Stone hearing that he had told Chiarelli and Casey that he believed the killings were "collateral damage" resulting from combat. That was the initial report of what happened and didn't change until a Time magazine reporter, Tim McGirk, interviewed relatives of the victims and began asking questions in January 2006.

"It goes a lot further than Gen. Huck," Rooney said in reference to the other generals.

The government has named a handful of witnesses it intends to call during Chessani's hearing. The defense plans to call about 30 witnesses, but will not hear from Time's McGirk, who is refusing to testify, Rooney said.

On another front, Navy Secretary Donald Winter has rejected calls for a probe of Naval Criminal Investigative Service agents who interviewed witnesses and the men who were ultimately charged.

Chessani's attorneys last month filed a complaint with Winter alleging the agents had used bullying tactics that included not allowing several Marines to use the bathroom or have anything to eat or drink during lengthy sessions.

The tactics, the attorneys complained to Winter, seemed to be part of an effort to find wrongdoing based on comments made last year by U.S. Rep. John Murtha, D-Penn., that the enlisted Marines responsible for the death had killed in cold blood.

"It is reasonable to conclude that the improper conduct of NCIS agents ... was fueled by a desire to substantiate Congressman Murtha's irresponsible public statements," the attorneys said in their request to Winter.

Winter responded late last week, saying that the Department of the Navy enforcement agency follows the law and that no investigation was necessary.

Hearings for three enlisted men facing murder charges in the deaths take place at the base this summer.

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

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