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Justice?
Haditha again.


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Mackubin Thomas Owens

Earlier this month, First Lt. Andrew Grayson, a Marine intelligence officer, was acquitted of contributing to the Haditha “cover up” by having a military photographer erase digital photos of the dead Iraqis. Grayson had turned down a plea deal to face charges on five counts that could have led to a maximum of 20 years in prison. The military judge in the case had previously dismissed an obstruction-of-justice charge against Grayson.

And now, a military judge has dismissed charges of dereliction of duty against the battalion commander at the time of the incident, Lt. Col. Jeffery Chessani, for failure to investigate the killings. The issue in Chessani’s case was undue “command influence.” The military judge in the case, Col. Steven Folsom, observed that “unlawful command influence is the mortal enemy of military justice.”

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The one Marine remaining under indictment is Staff Sgt. Frank Wuterich, who faces nine counts of involuntary manslaughter, charges that were earlier reduced from unpremeditated murder. Wuterich was the squad leader of the unit involved in the Haditha incident. His court martial was postponed at the end of February and has not been rescheduled.

Let me be clear. If Wuterich and his Marines had killed civilians in Haditha in revenge for the IED attack, he and they would be guilty of a war crime. But as the complete story has emerged, it seems to be the case that the killings, though a tragedy, did not rise to the level of war crime or atrocity.

There was a great deal of wisdom in the observations by Lt. Col. Paul Ware, the Article 32 investigating officer in the case of Sharratt (whose charges Mattis dismissed). Ware wrote that “the government version is unsupported by independent evidence. . . . To believe the government version of facts is to disregard clear and convincing evidence to the contrary.” Ware continued, “whether this was a brave act of combat against the enemy or tragedy of misperception born out of conducting combat with an enemy that hides among innocents, Lance Corporal Sharratt’s actions were in accord with the rules of engagement and use of force.” He concluded that further prosecution of Sharratt could set a “dangerous precedent that . . . may encourage others to bear false witness against Marines as a tactic to erode public support of the Marine Corps and its mission in Iraq. . . . Even more dangerous is the potential that a Marine may hesitate at the critical moment when facing the enemy.” These observations apply as well in the case of Wuterich.

In September of 2007, Wuterich told 60 Minutes, “What I did that day, the decisions that I made, I would make those decisions today. What I’m talking about is the tactical decisions. It doesn’t sit well with me that women and children died that day. There is nothing that I can possibly say to make up or make well the deaths of those women and children and I am absolutely sorry that that happened that day.”

What can we say about Haditha? As I have observed previously, our opponents in Iraq have chosen to deny us the ability to fight the sort of conventional war we would prefer and forced us to fight the one they want — an insurgency. Insurgents blend in with the people, making it hard to distinguish between combatant and noncombatant. A counterinsurgency always has to negotiate a fine line between too much and too little force. Indeed, it suits the insurgents’ goal when too much force is applied.



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