Politics & Policy

Justice?

Haditha again.

In November 2005, the Marine Corps reported that a number of civilians had been killed in Haditha by an improvised explosive device (IED) that also killed Marine Lance Corporal Miguel Terrazas, and that eight insurgents were killed in the ensuing firefight.

But in March of 2006, Time ran a story, “Collateral Damage or Civilian Massacre in Haditha?” which claimed, based on interviews with locals, that the Marines had killed 24 civilians in cold blood in retaliation for Terrazas’s death. In May, the Marine Corps charged a number of Marines from Kilo Company, 3rd Battalion, 1st Marine Regiment, with killing the civilians, and a number of officers for covering up the alleged killings.

Although the investigation had hardly begun, opponents of the war pounced. The press, especially Time and the New York Times, presumed the Marines guilty. Rep. John Murtha (D., Pa.) piled on, claiming that “there was no firefight, there was no IED that killed these innocent people. Our troops overreacted because of the pressure on them, and they killed innocent civilians in cold blood.” This incident, said Murtha, “shows the tremendous pressure that these guys are under every day when they’re out in combat.”

Appearing on This Week on ABC, Murtha also contended that the shootings in Hadithah had been covered up. “Who covered it up, why did they cover it up, why did they wait so long? We don’t know how far it goes. It goes right up the chain of command.” When Alan Colmes asked Barack Obama about Murtha’s charge in June of 2006, Senator Obama replied, “I would never second-guess John Murtha . . . I think he’s somebody who knows of which he speaks.”

But a strange thing happened on the way to the lynching. The case against the Marines began to fall apart, and a deafening media silence ensued. Eight Marines were originally charged with offenses ranging from murder to dereliction of duty, but charges against six have been dismissed, and one has been acquitted.

The case began to unravel in 2007, when then-Lt. Gen. James Mattis, Commanding General of the First Marine Expeditionary Force (IMEF), accepted the recommendations of the Article 32 investigating officer and dropped charges against two of the Marines charged with murder and an officer charged with dereliction of duty. In the case of Lance Corporal Justin Sharratt, one of four enlisted Marines charged with murder in the Hadithah incident, General Mattis wrote that Sharratt:

has served as a Marine infantryman in Iraq where our nation is fighting a shadowy enemy who hides among the innocent people, does not comply with any aspect of the law of war, and routinely targets and intentionally draws fire toward civilians.

With the dismissal of these charges, LCpl Sharratt may fairly conclude that he did his best to live up to the standards, followed by U.S. fighting men throughout our many wars, in the face of life or death decisions made in a matter of seconds in combat. And as he has always remained cloaked in the presumption of innocence, with this dismissal of charges, he remains in the eyes of the law — and in my eyes — innocent.

The acquittals and dismissals continue.

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.”

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.

For insurgents, there is no more powerful propaganda tool than the claim that their adversaries are employing force in an indiscriminate manner. It is even better for the insurgents’ cause if they can credibly charge the forces of the counterinsurgency with the targeted killing of noncombatants. For many people even today, the entire Americans enterprise in Vietnam is discredited by the belief that the U.S. military committed atrocities on a regular basis and as a matter of official policy — even though, as Jim Webb has noted, stories of atrocious conduct, e.g. My Lai, “represented not the typical experience of the American soldier, but its ugly extreme.”

Under the circumstances, what is most remarkable is not that incidents such as Haditha have occurred, but that there have been so few of them. As the Wall Street Journal observed in an editorial published on October 19, 2007:

While some violent crimes have been visited on civilians in Iraq and Afghanistan, overall the highly disciplined U.S. military has conducted itself in an exemplary fashion. When there have been aberrations, the services have typically held themselves accountable.

The same cannot be said of the political and media classes. Many, including Members of Congress, were looking for another moral bonfire to discredit the cause in Iraq, and they found a pretext in Haditha. The critics rushed to judgment; facts and evidence were discarded to fit the antiwar template.

Most despicably, they created and stoked a political atmosphere that exposes American soldiers in the line of duty, risking and often losing their lives, to criminal liability for the chaos of war. This is the deepest shame of Haditha, and the one for which apologies ought to be made.

I expect that we will be waiting for these apologies for some time. As Field Marshal Slim noted, it is so much easier to twist, misinterpret, falsify, or invent facts to slander the soldier as “an inhuman monster wallowing in innocent blood.”

– Mackubin Thomas Owens is an associate dean of academics and a professor of national-security affairs at the Naval War College in Newport, R.I. and editor of Orbis, the journal of the Foreign Policy Research Institute.

 

Mackubin Thomas Owens is senior national security fellow of the Foreign Policy Research Institute (FPRI) in Philadelphia, editing its journal Orbis from 2008 to 2020. A Marine Corps infantry veteran of the Vietnam War, he was a professor of national-security affairs at the U.S. Naval War College from 1987 to 2015. He is the author of US Civil–Military Relations after 9/11: Renegotiating the Civil-Military Bargain.

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