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| Iraq | |
| Bombshell Cripples Case Against Haditha Marines | |
| 2007-04-25 | |
| Convincing evidence that corroborates NewsMax.com's accounts of the Haditha insurgent ambush has compelled the prosecution to take extraordinary steps to bolster their crumbling case. The stunning announcement that all charges are being dropped against Sgt. Sanick P. Dela Cruz, formerly accused of murder in the Haditha incident where 24 Iraqis were killed during an insurgent ambush against the Marines, is indication that the prosecutors have a very weak case against all the defendants, lawyers for the some of the accused say. "Dela Cruz provided several sworn statements to the government," Mark Zaid said. Zaid is one of the attorneys representing defendant Sgt. Frank Wuterich adding that as part of its obligations the government turned over statements to Wuterich's defense team. "Unless there's something new that he is suddenly going to come forward with, it's not entirely clear that it's damaging to my client at all," Mark Zaid, one of the attorney's representing Sgt. defendant Frank Wuterich, told NewsMax.com. "Those statements were available for the government to use, and we found that there are numerous conflicting statements within his own statements." The announcement of the deal with Dela Cruz is further evidence that the cases against the Kilo Company Marines and several of their superior officers are in deep trouble. It comes on the heels of postponements of Article 32 hearings slated for Lt. Col. Jeffrey Chessani, the battalion commander and two of the enlisted men charged with murdering civilians in Haditha on Nov. 19, 2005. Although the prosecutors said they needed more time to prepare their cases, there is much more to the story than that NewsMax.com has learned, and it paints a shocking picture of a prosecution that should never have been pursued. In a nutshell, the case exploded when an intelligence officer dropped a bombshell on prosecutors during a pre-hearing interview when he revealed the existence of exculpatory evidence that appears to have been obtained by the Naval Criminal Investigative Service (NCIS) and withheld from the prosecutors. This officer, described by senior Marine Corps superiors as one of the best and most dedicated intelligence officers in the entire Marine Corps, was in possession of evidence which provided a minute-by-minute narrative of the entire day's action — material which he had amassed while monitoring the day's action in his capacity as the battalion's intelligence officer. That material, he says, was also in the hands of the NCIS. Much of that evidence remains classified, but it includes videos of the entire day's action, including airstrikes against insurgent safe houses. Also included was all of the radio traffic describing the ongoing action between the men on the ground and battalion headquarters, and proof that the Marines were aware that the insurgents conducting the ambush of the Kilo Company troops were videotaping the action — the same video that after editing ended up in the hands of a gullible anti-war correspondent for Time magazine. When asked by the prosecution team to give his copies of the evidence to the prosecution, he told NewsMax.com that he was reluctant to do so, fearing it would again be suppressed or misused, but later relented when ordered by his commanding general to do so. Confronted by the massive mounds of evidence that Marine Corps sources tell NewsMax proves conclusively that the cases against the Haditha Marines are baseless, the prosecutors were forced to postpone the Article 31 against Lt. Col. Chessani and two of the enlisted men in an attempt to regroup. By granting immunity to the officer on the scene of the house-clearing effort, the prosecution, lawyers say, has further weakened its case. Because the intelligence officer was slated to return to Iraq for another tour of duty, arrangements were made prior to his departure to videotape his testimony for use in the hearings which would take place after his departure. Those familiar with his testimony, which included masses of classified material, insist that the narratives of the day's events disclosed by NewsMax.com in a long series of stories about Haditha were accurate presentations of the true facts and a total repudiation of all the slanderous material leaked by the Pentagon to the media. Thanks to this officer's testimony, the defense team was able to present over one hundred classified exhibits, including video. Lawyers for some of the accused told NewsMax that the officer's eight hour-long deposition will be made available to the defense in all the cases for use at the various Article 32 hearings which begin with Lt. Col. Chessani in May. Because most of it remains classified, it will be reviewed in private by the hearing officers and not revealed in the open hearings. NewsMax, however, can reveal that the facts of what happened early that November morning clearly show that the incident was part of a planned ambush by insurgent forces, that the civilians tragically killed in the were used as human shields by the insurgents, and that despite claims by Rep. John Murtha, there was indeed an ongoing firefight between the Marines and the enemy. In short, what the intelligence officer provided, was a fully backed up account that puts the listener at the scene of the action and takes him though the entire day's action. All of this information was made available to senior officers up the command ladder including the Battalion commander Lt. Col. Chessani. It was so complete it eliminated any need for further investigation. Robert Muise, the Thomas More Law Center attorney who questioned the officer, told NewsMax in a statement, "The intelligence officer is a crucial witness in this case. During his testimony, he effectively described the enemy situation prior to, during, and after the November 19 terrorist attack, providing the necessary context for the decisions that were made as a result. His testimony shows the complexity of the attack this day, the callousness of the terrorists toward the local civilians, whom they use to their advantage, and the error of viewing this incident in a vacuum. "The officer also showed how the insurgents used allegations of wrongdoing by Marines as propaganda to support their cause. In fact, another witness, who was the assistant intelligence officer during the attack and is now the current intelligence officer for the battalion, testified that since the Haditha incident received so much negative attention, terrorist propaganda alleging law of war violations against American servicemen in Iraq has ‘ballooned.'" Addressing this point, Richard Thompson, the president and chief counsel of the Thomas More Law Center said, "The government's politicized quest to find wrongdoing in this case will ultimately harm the war effort, and it has already resulted in an incredible expenditure of time, money, and scarce resources, which could be better used fighting the terrorists. "Our job is to allow the facts of November 19, 2005 and beyond to be presented to the investigating officer rather than the scurrilous and unfounded accusations from anti-war politicians and media who rely on insurgent sources for their stories about our decent and hard fighting men in uniform."
In the past few days, as an apparent part of the prosecution's damage control effort, some Pentagon officials leaked the once classified 130-page report, by Maj. Gen. Eldon A. Bargewell of the Army, to the New York Times and The Washington Post. That report, however, failed to conclude that any officers covered up evidence or committed a crime — the basis of the charges against Lt. Col. Chessani and the other officers charged. In previous attempt to stir up animosity to the defendants, some people in the Pentagon leaked information allegedly compiled by the NCIS to the Washington Post. As NewsMax demonstrated, that information was false. A shocking example of the sort of slanderous material being leaked to the media was this story broadcast by WKRN in Nashville, Tenn., which reported that military prosecutors said marines went on "a killing rampage in November 2005 in Haditha, Iraq, after their Humvee was destroyed by a roadside bomb killing one marine and injuring two others." According to the WKRN report, "The surviving marines went on a killing spree shooting two dozen Iraqi civilians including unarmed men in the street and men, women, and children in their homes." They went on to quote one Gen. Jack Keane, rescribed as an ABC News consultant, who said that "at that point, there was a fundamental . . . breakdown in the chain of command. They became more like a gang than a military unit. The order and the discipline fundamentally broke down and they were seeking revenge." The Pentagon report, WKRN admitted, "did not find specific evidence of a cover-up but concludes that nobody was interested in investigating the allegations." The facts show that these reports are blatantly false, and typical of the shamefully distorted media coverage of the Haditha killings. On April 3, the prosecution granted immunity to talk to prosecutors to Lt. Max Frank, who arrived at the scene after the IED blast of the explosion. The grant was made as part of an order to "cooperate and truthfully answer all questions posed by investigators." He has not been charged in the case. According to Muise and Brian Rooney of the Thomas Moore Law Center both former Marine officers now representing Lt. Col. Chessani, Frank, who personally witnessed the scene of the attack shortly after the fighting and assisted with removing the civilian bodies from the insurgent-occupied homes, insisted that there was no evidence of "executions" and that he saw no evidence of misconduct. Muise observed that Frank was testifying under a grant of immunity by the government, which he said added further credibility to his testimony. Lt. Col. Shelburne, the military defense counsel for Chessani who questioned Kallop, noted, "This officer's testimony is significant. He was on the scene shortly after the attack. He saw the location of the bodies. He personally observed the damage caused by the attack. And yet, he saw nothing that caused him to suspect any wrongdoing on the part of the Marines. Moreover, this officer was given immunity by the government, so the only way he can get in trouble is if he testifies untruthfully." | |
| Posted by:Steve |
| #14 Just checked CNN.com and USATODAY.com (8:20 PM PST) and not a word about this. MODS: is this worthy of being carried over for add'l comments tomorrow? |
| Posted by: USN, ret. 2007-04-25 23:22 |
| #13 'Don't know about the main case, but - having myself serveed as an Article 32 hearing officer - the Article 32 hearing (roughly equivalent to civilian Grand Jury hearing) is not conducted by the prosecution - it is conducted in the name of the Courts Martial convening authority, by a regular military officer (not JAG or TDS). It is not intended to determine guilt or innocence, but to determine three things: 1. Is there evidence that a crime may have been committed? 2. If so, does it appear that the Courts Martial convening authority has jurisdiction over this crime, and its key actors? 3. If so, is there evidence linking the accused in some way to the crime? A key role of the Article 32 officer is accomplishing "discovery" for the alleged crime. All evidence that will be used by the prosecution in the Courts Martial hearing must be revealed to the Article 32 hearing officer, and he is responsible for making sure that such evidence has also been provided to the defense. Within the context of the case, the Article 32 hearing officer carries the authority of the General officer convening authority. If the Article 32 hearing officer becomes aware that the prosecution has concealed crucial evidence from the defense (and from the Hearing Officer), the Artcle 32 hearing officer may recommend dismissal of the case. If awareness of the withheld evidence becomes know to the defense only after the Aricle 32 hearing officer has recommended that the case go to trial, the defense attorney can request that the case be thrown out due to non-disclosure of such evidence during "discovery". I would assume that the Article 32 hearing officer is about to reommend dismissal of the Haditha case due to deliberate withholding of crucial evidence by the prosecution, during the discovery phase of the Article 32 hearing. Either that, or he my review the evidence, and determine that the preponderance of evidence suggests that no crime has been committed. The prosecution probably screwed up - and this one is over. I don't know if it is still true, but in my day, I think it was required that before a JAG officer served as a member of the Trioal Defense Servuce (TDS), they had to first serve a tour as a JAG prosecutor - and only the best prosecutors were considered to later work for TDS. Frankly, the TDS people always seemed to me to be more competent than the prosecutors. |
| Posted by: Lone Ranger 2007-04-25 21:06 |
| #12 Art. 77. Principals Any person punishable under this chapter who— (1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2) causes an act to be done which if directly performed by him would be punishable by this chapter; is a principal. Art. 78. Accessory after the fact Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a court-martial may direct. Art. 98. Noncompliance with procedural rules Any person subject to this chapter who— (1) is responsible for unnecessary delay in the disposition of any case of a person accused of an offense under this chapter; or (2) knowingly and intentionally fails to enforce or comply with any provision of this chapter regulating the proceedings before, during, or after trial of an accused; shall be punished as a court-martial may direct. Art. 107. False official statements Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct. Art. 108. Military property of United States—Loss, damage, destruction, or wrongful disposition Any person subject to this chapter who, without proper authority— (1) sells or otherwise disposes of; (2) willfully or through neglect damages, destroys, or loses; or (3) willfully or through neglect suffers to be lost, damaged, destroyed, sold, or wrongfully disposed of; any military property of the United States, shall be punished as a court-martial may direct. Art. 133. Conduct unbecoming an officer and a gentleman Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct. And of course the ever present catchall Art. 134. General article Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. |
| Posted by: Procopius2k 2007-04-25 20:52 |
| #11 ex-JAG, where are ye? Come help us. Nifong, indeed. Is there evidence of prosecutorial misconduct here, and if so does the military have a mechanism to deal with it? The leaking is (in the new, post-9/11 sense) unbelievable (and precisely what Nifong was engaged in - correct? I confess I didn't read 2 sentences about the Duke lacrosse case as it developed). Then there's Fitzgerald's bizarre press conference (not to mention closing argument) in the Libby trial. I ain't no trial attorney, but it seems there's an epidemic of prosecutorial misbehavior lately. Or it's just in high-profile cases, where people supporting or fighting the war are the targets (uh, Duke case excepted, of course). Instapundit had some intriguing links I didn't fully pursue yesterday about serious problems with all sorts of prosecution shenanigans nation-wide, including bogus "expert" witnesses and of course bad cops who made s**t up. Every system, no matter how well safeguarded (and our is so well equipped in that regard that it is famously at a disadvantage against wrong-doers), still depends in the end on the integrity of key individuals. Rather shocking what we're seeing that department lately .... |
| Posted by: Verlaine 2007-04-25 20:36 |
| #10 Did the prosecution pull a Nifong here? |
| Posted by: Jise Snoluper9807 2007-04-25 19:38 |
| #9 What is a BIACH here is those Marines can't clear their names, because the MSM will ignore this. I was skeptical given the length of time involved in the action. It's one thing to go nuts and kill a bunch of people quickly, it's an entirely diffirent matter to kill a bunch of people of a period of hours. Some people at JAG and the Pentagon need to be taken to the woodshed for leaking and carrying forward this HIGhly volitile case. Their actions have brought shame on the DOD, the USMC and the U.S. SHAME! SHAME! SHAME! |
| Posted by: Cyber Sarge 2007-04-25 19:23 |
| #8 This brings to mind the story about a month or so ago, where the Marine Special Operations Command detachment was supposedly "thrown out" of Afghanistan by the Army General in charge. Is that another false accusation? Has anyone heard any more about that story? This account is somewhat unclear. There seem to be two issues. One is the leaking of false and negative stories by the pentagon. The other is whether the prosecution knew of this exculpatory evidence early on. In regular crimial prosecutions, witholding exculpatory evidence from the defense is called "Brady Error" for Brady v. Maryland. I am sure there is a comparable UCMJ provision. I am sure ex-jag would know. Regardless, the whole thing stinks to high heaven. |
| Posted by: Sgt. D.T. 2007-04-25 19:12 |
| #7 D'you suppose the Marines that were charged, and those who were slandered by accusations in the media will get any apology upon being exhonerated, from the likes of Murtha, from the MSM and from turds like Sy Hersh who were willing to fling around charges of war crimes and atrocities? Nah, I don't think so, either. |
| Posted by: Sgt. Mom 2007-04-25 18:45 |
| #6 More to the point, is there any penalty attached to prosecuting a case known to be unfounded, leaking false or slanted information to the press, or otherwise acting dishonourably in a case where not only the defendents' standing as members of the military, but their very lives could be forfeit if found guilty? |
| Posted by: trailing wife 2007-04-25 18:44 |
| #5 This is another case of somebody covering something up. Whoever was holding this needs to swing. What say you, Murtha? Murtha, Hello? |
| Posted by: USN. Ret. 2007-04-25 18:37 |
| #4 TITLE 10 > Subtitle A > PART II > CHAPTER 47 > SUBCHAPTER XI > § 938 § 938. Art. 138. Complaints of wrongs Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon. - It's only just begun. Can you say Nifong'd boys and girls. |
| Posted by: Procopius2k 2007-04-25 18:32 |
| #3 Question for exJAG and other mil/ex-mil types here: let's say the case collapses and the prosecution (or the judge) brings the proceedings to an end without any convictions. As I understand it, the defendants could still be punished by an administrative hearing or mechanism. Is that correct? I'm looking for knowledge here. Thanks. |
| Posted by: Steve White 2007-04-25 17:49 |
| #2 Those familiar with his testimony, which included masses of classified material, insist that the narratives of the day's events disclosed by NewsMax.com in a long series of stories about Haditha were accurate presentations of the true facts and a total repudiation of all the slanderous material leaked by the Pentagon to the media. What is the Pentagon doing about this "leak"? A full-scale witch hunt had better be going on. the facts of what happened early that November morning clearly show that the incident was part of a planned ambush by insurgent forces, that the civilians tragically killed in the were used as human shields by the insurgents ... ... His testimony shows the complexity of the attack this day, the callousness of the terrorists toward the local civilians, whom they use to their advantage Furthermore, if — for once — our Marines were finally shooting through human shields to nail their terrorist attackers then they should be given medals for combat valor. The stress that they must experience in doing so must be appalling. The more often that human shields end up dead, the less likely they will be to volunteer in the future. Terrorists who are willing to use human shields represent the most vile and dangerous sort of combatants. Their elimination — even at the cost of civilian lives — must remain a top priority. It must be understood that deterring civilian cooperation with the terrorists at every turn is absolutely imperative. Shooting through human shields, strafing car swarms and capping children who go out to collect weapons and ammunition at firefight scenes are all important measures to discourage civilian cooperation. |
| Posted by: Zenster 2007-04-25 17:22 |
| #1 Figured as much. |
| Posted by: exJAG 2007-04-25 17:15 |