October 6, 2007
BAGHDAD, Oct. 5 — Last year, when accounts of the killing of 24 Iraqis in Haditha by a group of marines came to light, it seemed that the Iraq war had produced its defining atrocity, just as the conflict in Vietnam had spawned the My Lai massacre a generation ago.
But on Thursday, a senior military investigator recommended dropping murder charges against the ranking enlisted marine accused in the 2005 killings, just as he had done earlier in the cases of two other marines charged in the case. The recommendation may well have ended prosecutors’ chances of winning any murder convictions in the killings of the apparently unarmed men, women and children.
In the recent case, against Staff Sgt. Frank D. Wuterich, the investigator recommended that he be charged with negligent homicide if the case moved ahead to court-martial. In the other two cases, the investigator recommended dropping all charges.
Experts in military justice say the Haditha prosecutions were compromised by several factors having to do with the quality of the evidence, including a delayed investigation and the decision to conduct hearings in the United States, far from the scene of the killings and possible Iraqi witnesses.
The cases also reflect the particular views of Lt. Col. Paul J. Ware, who presided over the hearings and concluded that all three cases lacked sufficient evidence. He made clear in his recommendations to the commander who ultimately decides the cases that he felt that the killings should be considered in context — that of a war zone where the enemy ruthlessly employed civilians as cover.
Perhaps nothing handicapped military prosecutors more than the delay in investigating the killings, on Nov. 19, 2005, because battalion officers initially decided the case did not require an inquiry. The attack began after a roadside bombing of the marines’ convoy killed a comrade; led by Sergeant Wuterich, a group of marines then killed 24 people over several hours. Nineteen of the 24 were killed in their homes.
By the time the Marine Corps announced murder charges against the infantrymen, 13 months had passed. Evidence vanished, witnesses evaporated and memories paled.
Those problems with collecting evidence were further complicated because Haditha remained a combat zone. When forensic experts traveled there last year to interview family members of those killed, heavily armed Marine infantrymen had to guard them, and even then, insurgent fire forced the investigators to abandon the scene after an hour.
Beyond that, Islamic custom dictates that families bury their dead within hours. Relatives of those killed in Haditha refused American requests to exhume the bodies for forensic analysis.
In addition, the collection of evidence was hurt by the decision to hold evidentiary hearings for the marines in the Haditha case at Camp Pendleton, Calif., rather than in Baghdad, where some other cases have been heard.
"In the Vietnam era, you often had the lawyers, the witnesses, the scene, the victims’ families — you had them right there," said Gary D. Solis, a former Marine judge who teaches the laws of war at Georgetown University Law Center. "If you happened to have a witness who had rotated back to the United States, you could call them back."
In the end, in Colonel Ware’s view, expressed in dozens of pages of analysis and opinion in his reports on all three cases, the Haditha prosecutors failed to amass enough evidence to win a conviction.
In his latest report, in which he recommended dismissing 10 murder charges against Sergeant Wuterich and reducing seven others to negligent homicide, Colonel Ware wrote that the evidence presented to him "is simply not strong enough to prove beyond a reasonable doubt."
He made similar conclusions in his reports on the cases against two other infantrymen for whom he urged the dismissal of all charges: Lance Cpl. Justin Sharratt, whose murder charges were subsequently thrown out by the commanding general overseeing the case, and Lance Cpl. Stephen Tatum, who is still waiting to hear the general’s decision. Commanders usually follow investigators’ recommendations.
"When you have an investigating officer like Ware, who says 'don’t go there if you can’t prove,’" your case, Mr. Solis said, "we’re left with what appear to be very reduced charges." He added: "He’s aggressive, and he seems to make his judgments without regard for anything but the law. He must know that people — civilians, primarily — are going to howl about this, but that doesn’t seem to be a concern."
Other military law experts also noted that in his two reports on the charges against Lance Corporals Sharratt and Tatum, Colonel Ware revealed a willingness to give the men the benefit of the doubt, and to consider the impact of the prosecutions on the morale of troops still fighting in Iraq.
"It does surprise me to see that the killing of seven women and children by grenades and rifles, for the purposes of clearing structures, is being treated the way this investigating officer has treated it," said Eugene R. Fidell, an expert in military law in Washington.
In an unusual departure from the analysis of the facts in Lance Corporal Sharratt’s case, Colonel Ware warned that putting marines on trial for murder without having the evidence to prove it could "erode public support of the Marine Corps and mission in Iraq."
Michael F. Noone, a law professor at Catholic University and a retired Air Force lawyer, said Colonel Ware was right to assume that rulings in the Haditha cases might have an impact on the overall war effort. Last week, he noted, testimony in a Baghdad military murder trial suggested that an Army sniper, a member of one of the most highly trained infantry units, had planted evidence on the remains of a dead fighter — as insurance against second-guessing.
"That’s somebody who doesn’t trust the system," Professor Noone said. "Do you want kids out there representing the United States who don’t think they’re going to be treated fairly?"