First Haditha trial set to unfold

By: MARK WALKER - Staff Writer
Wuterich court-martial puts global spotlight on Iraq rules of engagement | Saturday, February 23, 2008 12:48 AM PST ∞

CAMP PENDLETON ---- A jury that includes several combat veterans will gather in a courtroom here one week from Monday to hear the first case against four Marines being prosecuted in the slaying of two dozen Iraqi civilians more than two years ago.

The court-martial of Staff Sgt. Frank Wuterich will offer dramatically competing versions of what happened in the city of Haditha on Nov. 19, 2005, and the outcome could set the tone for subsequent courts-martial of the three other Marines.

The prosecutions are themselves controversial, drawing scorn from active-duty Marines and retired veterans, as well as global attention.

"Sergeant Wuterich is the key figure in this case," said Scott Silliman, a former military lawyer and now director of the Center on Law, Ethics and National Security at Duke University.

"This is a trial the whole world will be looking at to see if we hold our own accountable for violations of the laws of war and armed conflict."

Rules of engagement
The last of many pretrial hearings Friday settled a few final questions in Wuterich's court-martial, including whether CBS would have to turn over the parts of a "60 Minutes" interview the network didn't broadcast. It doesn't.

Originally charged with 17 counts of murder and related offenses, the legal wrangling has resulted in Wuterich now facing nine counts of voluntary manslaughter, dereliction of duty, aggravated assault, reckless endangerment and obstructing justice.

If convicted and sentenced to the maximum ---- an outcome that would defy trends seen in jury decisions in similar cases at Camp Pendleton in recent months ---- Wuterich faces as much as 160 years in prison.

The jurors will hear from dozens of witnesses and have access to tens of thousands of pages of investigators' reports. And they won't be limited to hearing only what those witnesses say in response to attorneys' questions.

Unlike in a civilian court, jurors in a military court are called "members" and are armed with the authority to ask their own questions of witnesses.

For the Wuterich jury, the central issue is this: Did the squad leader on his first combat assignment ignore the rules of engagement and criminally lead his squad in the slaying of unarmed men, women and children? Or were his actions a regrettable but justifiable execution of his responsibility to defend his men when they came under attack?

What's at stake
At the heart is the prosecution's charge that Wuterich "willfully failed to ensure Marines under his charge obeyed the rules of engagement by ordering his Marines to shoot first and ask questions later."

Military law professors offer divergent views of how the jury, which will include enlisted men and officers, might see the case and what the Wuterich trial represents.

One is Gary Solis, a former Marine judge and attorney who has written extensively on the laws of armed conflict.

Solis said last week that he sees the incident at the heart of the trial as having changed from its original characterization as an alleged massacre by vengeful Marines to one that highlights the "fog of war" and the ambiguity troops confront on an urban battlefield.

"It's really more of a tragic event than a murderous rampage and that can only accrue to the benefit of the accused," Solis said during a telephone interview.

"The government is going to have to convince members of a military jury to convict a Marine noncommissioned officer of acts carried out in combat," Solis said, "and that just hasn't been done before."

Scott Silliman added: "The question is did Staff Sergeant Wuterich act on pure emotion or did he try and sort out the factual environment of what he was facing that day and follow the rules of engagement by trying to discriminate between lawful combatants and civilians?"

Underlying facts
Both sides squaring off in the Camp Pendleton courtroom agree on this account of what happened on Nov. 19, 2005:

The Haditha killings came after Wuterich led a Kilo Company squad from Camp Pendleton's 3rd Battalion, 1st Marine Regiment in the former insurgent-hotbed city.

As their four-vehicle resupply convoy was returning to their base, a roadside bomb was detonated, destroying one Humvee and killing Lance Cpl. Miguel Terrazas.

Five unarmed Iraqi men who emerged from a car that drove up moments later were the first to die, shot by Wuterich and one of his men.

The government considers those shootings criminal because prosecutors say Wuterich failed to positively identify who those men were before shooting.

Nineteen other Iraqis were killed as Wuterich led his squad in a house-to-house search for its attackers. Several of the Iraqis were killed as they hid inside a bedroom.

A day later, the Marine Corps issued an incorrect news release stating that 15 civilians had died in the bombing.

Commanders at Haditha originally determined the killings were regrettable "collateral damage" stemming from a legitimate combat action. But that view changed when survivors alleged the Marines had wantonly killed the men, women and children inside their homes and Time magazine began raising questions.

That led to a large-scale criminal investigation and the filing of charges in December 2006.

The fallout since the filing of charges has seen a Marine two-star general and two other senior officers issued career-ending letters of censure for not having ordered an investigation.

That action by the secretary of the Navy last summer was in addition to criminal charges filed against eight of the men involved in the incident.

Four of the original defendants have since seen charges dismissed. That leaves Wuterich and Lance Cpl. Stephen Tatum still facing homicide charges. Lt. Col. Jeffrey Chessani and 1st Lt. Andrew Grayson are facing charges tied to their alleged failures to order a full-scale investigation into the slayings.

The courts-martials of Tatum, Chessani and Grayson are scheduled to take place at Camp Pendleton later this year.

'Comedy of errors'
Politics and the role of the U.S. in Iraq have also have been hallmarks of the Haditha prosecutions.

Rep. John Murtha, D-Pa., charged in early 2007 that overstressed Marines killed "in cold blood," leading to widespread resentment toward him among local troops.

The prosecutions also have been heavily criticized among former Marines, many of whom view the case as politically motivated and who say they believe commanders bowed in the face of pressure to file criminal charges because of the high number of civilian deaths.

One of the critics is Bob Wiemann, a retired lieutenant colonel and former 3/1 Kilo Company commander. He recently wrote an open letter of protest to the commandant of the Marine Corps, calling the case an "embarrassing comedy of errors."

"These errors include leaked confidential investigations, prosecution grants of immunity to unreliable witnesses, and the almost whimsical addition of charges against Marines who trust more in their training than you," Wiemann wrote.

Final pretrial rulings
A military judge presiding over the Wuterich trial issued a series of final pretrial rulings Friday afternoon on motions that set the stage for the convening of Wuterich's trial.

The judge, Lt. Col. Jeffrey Meeks, denied efforts to suppress a statement Wuterich made to Army investigators who conducted an initial investigation in February 2006.

Meeks said the government can introduce Wuterich's statement then "admitting his involvement and directing his squad not to worry about positive identification before targeting."

Meeks also sided with attorneys for CBS in agreeing to quash a prosecution subpoena for outtakes of an interview Wuterich did with "60 Minutes" that was first broadcast in March 2007.

Prosecutors contended those outtakes may have included additional incriminating statements but Meeks said that constituted a "fishing expedition."

Meeks said he would allow the broadcast portion of the "60 Minutes" interview to be introduced at the trial, which is expected to last two weeks.

If found guilty on any of the charges against him, the jury decides the punishment. Any sentence handed down is automatically reviewed by the "convening authority" over the case, Camp Pendleton's Lt. Gen. Samuel Helland.

Under the Uniform Code of Military Justice, Helland has sweeping power to set aside a conviction or reduce punishment.

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