Military judge could bring end to long effort to prosecute Marines in killing of 24 Iraqis

Military judge could end case of 24 Iraqi killings

CAMP PENDLETON, Calif. — The news came at a low point in the war in Iraq and seemed to reflect much of what was going wrong: A Marine squad killed 24 people in the town of Haditha in November 2005, including unarmed women and children in their homes.

Critics of the war painted the deaths as another sign the war was spiraling out of control, a tragedy akin to the abuse of prisoners by U.S. soldiers at the Abu Grhaib prison.

The late U.S. Rep. John Murtha, an ardent critic of the war, said the Marine squad killed civilians “in cold blood.”

Now, more than four years after the killings, a military judge is expected to decide Friday whether to dismiss charges against Staff Sgt. Frank Wuterich, 30, the only remaining defendant in the biggest criminal case against U.S. troops to arise from the Iraq war.

If the judge grants the defense request alleging unlawful command influence in the case, it would mark a crushing finale for the military in a string of defeats in its prosecution of war crimes in Iraq.

“It was a really, really big deal primarily because anti-war sentiment was peaking at the time and the thinking was, Oh, my God! How do Americans look to Iraq and the Arab world?” said Neal Puckett, one of Wuterich’s attorneys.

The deaths occurred after Wuterich, the squad leader, ordered his troops to clear several houses near the site of a roadside bombing. He was initially charged with unpremediated murder in 18 deaths, but the charges were later reduced to voluntary manslaughter.

A total of eight Marines were charged in December 2006 with murder or with failing to investigate the killings. Six of them have had charges dismissed or withdrawn, and one was acquitted.

Military courts were founded in part on the principle of swift investigation and punishment of wrongdoing, but the Haditha case has taken far too long to resolve, said David Glazier, a professor at Loyola Law School in Los Angeles and a former Navy officer.

“This has dragged on for so many years that it sort of makes a mockery of having a separate system of military justice,” he said. “If you’re going to take three, four years to decide whether to try someone, it sort of defeats the purpose.”

An interview given by Wuterich to “60 Minutes” that aired in March 2007 caused much of the delay. Marine Corps prosecutors wanted unaired outtakes of the segment, but a military judge initially denied their subpoena, saying it would place the network in the role of being a government tool.

Last year, a military appeals court ordered the network to turn over some unaired portions to prosecutors.

The case also suffered from a delay in gathering evidence, said Thad Coakley, a former Marine Corps prosecutor. Immediately after the killings, investigators missed chances to collect evidence from the scene and speak with witnesses while their memories were fresh, he said.

A full investigation did not begin until January 2006 — two months after the killings — when a Time magazine reporter made inquiries about the deaths.

“To a very large degree, this has been such a long, tortuous process because there were very little facts upfront,” Coakley said.

The Iraqis were killed after the roadside bomb hit a Marine convoy, killing the driver of a Humvee and wounding two other Marines.

Wuterich, of Meriden, Conn., and a squad member were accused of shooting five men by a car at the scene. Investigators say Wuterich then ordered his men to clear several houses with grenades and gunfire. Women and children were left among the dead.

At his preliminary hearing, Wuterich said he regretted the loss of civilian lives but believed he was operating within military combat rules when he ordered his men to attack.

At issue in the current hearing is whether military commanders acted improperly or can be perceived to have acted improperly before Wuterich was court-martialed in December 2007. Defense lawyers allege the commanders were improperly influenced by an aide who had investigated the case.

The judge, Lt. Col. David Jones, said Wuterich’s attorneys presented credible evidence regarding the role of military lawyer, Col. John Ewers, who investigated the Haditha killings and later became a top aide to the generals who brought charges against Wuterich and ordered him to stand trial.

Gen. James Mattis, who brought charges, acknowledged during testimony that Ewers was in the room when allegations of wartime abuse were discussed but denies ever getting advice from him on the Haditha case.

The defense argues that Ewers’ mere presence stifled junior attorneys who were assigned to advise the general. Court papers describe how Ewers, who was seriously wounded in Iraq in 2003, had a stellar reputation and a long history with Gen. Mattis.

That same argument worked for another defendant.

In 2008, a judge dismissed a case against Lt. Col. Jeffrey Chessani, who was charged with dereliction of duty for failing to investigate the deaths.