Maggie's Farm

A white car pulled up near and within seconds of the IED explosion that killed a Marine. Five men exited the white car and were shot dead, the Marines had been warned of white cars being used as part of IED attacks. The issue is whether, not in retrospect but at the time, the Marines had legitimate reason to suspect the men and whether they could be shot. The training was that if, for example, running away, they could be treated with deadly force as hostile combatants. The hearing officer stated,

The charges involving the white sedan are based entirely on the testimony of Sgt [a Corporal at Haditha] Dela Cruz. The evidence does suggest that the men were not running away, but that does not discount SSgt Wuterich’s belief they were running. One or more of the men started to move as Sgt Dela Cruz shot them. The Government points to numerous supportive exhibits but each ties back to Sgt Dela Cruz and his credibility is the key issue….the facts remains that these charges rest upon an immunized Marine whose character for truthfulness, incentive to please the government and obvious self interest are, in my opinion, obstacles too great to overcome.

Dela Cruz has repeatedly changed his story, including at the court martial, as to whether he fired at the men from the car or just delivered death shots to them as they lay in the street.

Similarly, the facts are contested or in serious doubt in the clearing of several houses near the IED explosion, from which direction small arms fire was received. The prosecution contends that deadly force need not have been used, and was in contradiction to the rules of engagement. The Article 32 hearing officer, however, with respect to House 1, said that although the clearing techniques used may have differed from those in the official rules of engagement these clearing methods were what the Marines were taught to do.

"Our Marines should be able to rely upon being taught tactics which will not later subject them to criminal liability if properly employed.” The hearing officer also stated, “pursuing the theory that further positive idendification after entering a room you reasonably believe contains enemy combatants inside would significantly impact combat operations and is an unwarranted, ill conceived and dangerous application of restraint."

In House 2, where the Marines believed combatants had fled to, the hearing officer had more serious reservations about Wuterich’s conduct.

…confusion as to how the events unfolded, coupled with the unique stresses of combat operations will make proof beyond a reasonable doubt of murder or manslaughter unlikely. The most likely mens rea [guilty mind] which may be proved under these circumstances is simple negligence….failed to exercise due care in identifying the occupants of the back room of House 2.

The hearing officer concluded with his judgment that there is reasonable cause to pursue charges of negligent homicide, not murder as the prosecution argued for, but that he didn’t expect a court martial to find for negligent homicide but at most dereliction of duty, failure to take due care.

What the evidence does point to is that SSgt Wuterich failed to exercise due care in a combat environment resulting in the death of innocents, the charge of negligent homicide, not murder is the appropriate offense. Accordingly I believe the elements and theory of negligent homicide best fits the evidence of what occurred inside House 2.

Finally, although I believe the Government will fail to prove beyond a reasonable doubt that SSgt Wuterich committed any offenses other than dereliction of duty, due to the serious nature of the charges, I recommend referral to a general court martial.

“Dereliction of duty” is a broad catchall in Article 92 of the Uniform Code of Military Justice (UCMJ), negligence or culpable ineptness in the performance of duties. To prove that it must be conclusive that Wuterich acted contrary to training and standard operating procedure. The court martial is in the phase where the prosecution is presenting its case. Both the prosecutor and defense attorneys are well-qualified in the law and long familiarity with the details of the case. The jurors are Marines who served in Iraq. All are senior in rank to Wuterich and likely to apply experienced sense as well as strict adherence to the nuances of the law.

As the opening statements put forth, the question will revolve around willful or inept negligence or facts to the contrary at the time and the “fog of war.”

I’ve followed the details of Haditha from the very beginning, writing copiously about each of the former Article 32 hearings for which there are public records of the actual proceedings and judgments, and continuously monitoring the press and blogosphere for information. (Many of my posts can be found at this Search or this Search.) In this 2009 post, summing up, I stated, “These Marines have suffered from a runaway frenzy in prosecution. It’s time it ended.”

But, it hasn’t. Major media reporters had their comeuppance from failed legal actions against other Marines involved at Haditha coupled with the public realization, although not media confession, that the major media was both swept up in and complicit in one-sidedly rushing to judgment, in opposition to the US war in Iraq. At least, now there will be a final more considered judgment than at the outset of the attacks on the honor and duty of the Haditha Marines and America.

(Note: I did not have the final charge sheet from the prosecution for the court martial when I wrote the above. In communication with a diligent reporter, who did get a copy after much effort, I'm told that the charges include manslaughter --although the Article 32 hearing officer recommended against a manslaughter charge, lesser than murder but a higher charge than negligent homicide. It, also, requires higher proof. Regardless, the case ultimately rests on dereliction of duty, whether Wuterich acted against training and SOP.)