Defend Our Marines | August 4, 2007
Lt Col Chessani faces new Article 32 in Haditha case
Former 3rd Battalion, 1st Marine commander
Lt Col Jeffrey R. Chessani is waiting to discover whether he will face
two additional felony charge of dereliction of duty for failing to
adequately investigate and report the deaths of 24 Iraqis killed
during a vicious daylong firefight in Haditha, Iraq eighteen months
ago. The day long fight November 19. 2005 left 24 Iraqis and one
Marine dead and 11 other Marines wounded.
Article 32 hearing is set to reopen next Wednesday at Camp Pendleton,
California before hearing officer Col. Christopher Conlin. Chessani
already faces general courts-martial for two counts of dereliction of
duty and one count of violation of a lawful order based on Conlin’s
recommendations. The new charges are for failing to make appropriate
combat journal entries (JEN) after the ambush and firefight at Haditha
left one Marine dead and 11 others wounded.
Defense attorney Brian Rooney said the two new counts accuse Chessani
of the same offenses he is already charged with, but were drawn up by
prosecutors using different legal terms. The “new” hearing is to
clarify whether prosecutors want to file the new charges along with,
or instead of, the original charges, Rooney said.
the shotgun approach,” Rooney explained Friday. “The new charges of
dereliction of duty for not updating a journal entry properly are now
the subject of this new Article 32. These are the charges that defense
attorneys argued against the first time around when the prosecution
tried to bring them in at the eleventh hour. We are confident these
charges don’t have any merit.”
“eleventh hour” complaint Rooney referred to is the prosecution claim
at the end of Chessani’s June Article 32 hearing that it had suddenly
discovered new evidence that Chessani was guilty of the additional
crimes, defense attorneys said. Chessani’s defense team subsequently
asked Lt. Gen. J. N. Mattis to reopen the hearing to determine the
validity of the charges. Mattis is the convening authority in the
Article 32 hearing is roughly similar to a civilian Grand Jury
proceeding except the hearing officer’s findings are merely
recommendations that can be ignored by the convening authority that
initiates the investigation. The convening authority determines
whether the accused stands trial by courts-martial or faces
disciplinary action using some other form of military justice.
Rooney’s colleague Robert J. Muise told hearing officer Col.
Christopher Conlin that he had allowed the case to turn “from a search
for the truth to a search for a prosecution.” Both lawyers work for
the Thomas More Law Center, a non-profit advocacy law firm based in
Ann Arbor, Michigan that is donating its resources to defending
letter Muise wrote June 21 in response to Conlin’s “Request for
Information” Muise blasted the colonel for allowing the new charges to
even be considered. Col. Conlin is not an attorney. Muise harshly
criticized him for allowing the prosecution’s last minute attempt to
charge Chessani with the additional crime during his first Article 32
evident that the government panicked when it received the dismissal
recommendation for Capt. [Randy W.] Stone on 8 June 2007 (Friday) to
avoid a similar result,” Muise alleged.
Stone’s case, hearing officer Maj. Thomas McCann recommended that
Mattis dismiss the criminal charges because the evidence did not
support them. Until Mattis decides what to do, Stone remains charged
with dereliction of duty for failing to investigate what happened at
the day long battle in Haditha.
Defense: new charges against Chessani an attempt to protect generals
scathing missive to Conlin, Muise complained that the prosecution
drafted the charge against Chessani on June 10, the Sunday night
before the Article 32 hearing was scheduled to wind up. Chessani, 43,
was charged in December 2006 in the biggest U.S. criminal case
involving civilian deaths to come out of the Iraq war. The complaint
was triggered by a specious report in Time Magazine by reporter
Tim McGirk that claimed Kilo Co., 3/1 massacred 24 civilians in
retaliation for the death of LCpl Miguel “T.J.” Terrazas. The popular
young Marine was killed in the IED blast that initiated the day-long
fight. Marine Corps investigators later determined that at least eight
of the Iraqis who died were known insurgents hiding in civilian homes
waiting to shoot the Marines after the bomb exploded.
told Mattis that Chessani “failed to thoroughly and accurately report
and investigate a combat engagement that clearly needed scrutiny.”
vehemently argued that the evidence already developed and introduced
clearly shows that Chessani reported 15 civilian deaths and how they
died immediately and as thoroughly as possible by multiple means.
Muise claims that the appropriate JEN entry was made immediately after
the incident and that JEN updates clarifying the situation were then
made using emails and telephone calls, both alternative methods
approved by an existing operational order.
letter Muise said:
“That information, plus
much more, was reported to higher headquarters pursuant to authorized
means of combat reporting. In fact, Major Connelly, the regimental SJA,
“flagged” the JEN in question, but later reconciled it with Division.
Consequently, this case is nothing more than an attempt to cast blame
where none exists. The ‘ground truth,’ as the government is fond of
saying, is that this case is a misguided attempt to find the
sacrificial officer in the chain of command to lay blame upon,
allowing the remainder of the chain of command (i.e. senior officers,
including general officers) to “wash their hands of the matter.”
also credits prosecution witness William Hays Parks, the government’s
own expert on the laws of land warfare, with proving Chessani is not
guilty. Muise said Parks’ day long testimony on May 31 “eviscerated
its [government] case.”
Testimony drives new charges
twist in Chessani’s tortuous pursuit of justice comes as no surprise
to astute observers who know Colonel William Hays Parks, USMCR (Ret.),
the wizard of the Law of Land Warfare who took the stand on behalf of
the prosecution May 31 for about six hours. Parks literally wrote the
Department of Defense’s book on how Americans are supposed to conduct
themselves in battle. His 102 pages of testimony show how misguided it
can be for a ground commander to try and investigate allegations of
misconduct or prepare complete situation reports in the midst of
lawyer who has known Parks since 1984 said to think of him as the guy
who writes the playbook for war: a precise, concise list of things
combatants and commanders must do to follow the rules. Another way to
think of it is as an “instruction manual for dancing through
minefields,” another fellow said.
Captain James French, a Marine judge advocate who served as Law of War
Advisor to the 2d Marine Division and as an action officer for the
Special Operations/Low Intensity Conflict Branch of HQMC, began his
career as a student of Col. Parks and remains an admirer of the man.
“Calling upon Col. Hays Parks to explain the Law of Armed Conflict (LOAC)
is similar to calling upon Jehovah to stop in and explain the Ten
Commandants. In either case, you’re going to hear an honest statement
of the law from the lawgivers concerned; and, in both cases,
thunderbolts will follow if you persist in misapplication of the law
“The lengthy, detailed, examination of Col. Parks by the prosecuting
trial counsel at the Article 32 hearing of the case against Lt. Col.
Chessani reveals two things clearly and beyond a reasonable doubt.
One: The prosecuting trial counsel charged this case without even a
basic knowledge of the Law of Armed Conflict. Two: Now that Col. Parks
has explained the law to the prosecuting trial counsel, the
application of the Law of Armed Conflict to the facts of this case
requires dismissal of all three specifications pending against Lt.
Col. Chessani,” French said late Friday evening.
is more than just a big gun in war crimes law, he is the “BIG” gun,
military lawyers who know him universally agreed. He is the Department
of Defense’s resident expert on the Law of War and Rules of
Engagement. In his youth, Parks was an enlisted man in the Marine Corps
reserves before getting commissioned through the Platoon Leader
Course. He joined the 4th Reconnaissance Battalion while
attending law school at Baylor University in Texas. He graduated from
Marine Corps Officer Basic School in 1967 and served in Vietnam both
as a lawyer and an infantry company commander for a provisional rifle
He is a
trained sniper as well as DOD’s legal expert on weapons and tactics
employed by special operations units. Currently, Parks is the legal
advisor for the Joint Special Operations Command “Tier One” units –
the shadowy spooks on the pointy edge of counter-insurgency warfare.
He also lectures on rules of engagement at the war colleges and staff
colleges, the Navy Fighter Weapons School, and Naval Strike Warfare
Center. He was the military’s legal authority for bombing Libya in
April 1986. In November 1986 he wrote an account called “Crossing the
Line” for influential Naval Institute Proceedings
Ultimately, Parks became responsible for promulgating legal policy for
both Marine Corps and Army war fighters. He went to work for the Army
in 1979 as its resident expert until moving up the chain to lead the
entire Department of Defense Law of Land Warfare effort.
hours on May 31 Parks explained to Conlin how “rules” are made for
Marines to follow when conducting war. All of his testimony came in
response to questions by prosecutor Lt. Col. Paul Atterbury. Conlin is
an infantry officer and not a lawyer. It is painfully obvious from the
trial transcript Conlin deferred completely to Parks to determine
whether any violations of law had been committed, court observers
said. The defense – with the exception of several procedural
objections that were overruled – remained mute.
didn’t question Parks because he said clearly that the battalion CO’s
[Commanding Officer] duty is to report, which Chessani did – not to
investigate. Parks specifically wanted higher ups that were more
detached making that call - a call by the way that was specifically
made by both Davis and Huck when they said don’t investigate and no
investigation necessary. That is all in the record. We were hopeful at
that point that Conlin was tracking, but he completely discounted
Parks testimony we found out afterwards,” Rooney said Friday
Gen. Stephen T. Johnson, commanding general of Multi-National Force –
West in Iraq at the time of the Haditha attack, summed up the
thinking of the Marine Corps officers who were managing the combat
operations that went on at Haditha all day after the early morning
ambush that triggered the fight during testimony before Conlin.
think that the way this is laid out is that the impression that we are
dealing with is that these folks were hit as a result of a coordinated
attack that occurred there in Haditha, in that particular incident.
That is [what] was reported and that while it is regrettable, I think
it was probably considered at that time an element of the
circumstances; and that our thought process would have been that, hey,
if the enemy hadn’t done it, those people wouldn’t have got killed.”
Defend Our Marines
4 August 2007
Note: Nat Helms served three tours in Vietnam and, most
recently, is the author of
My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007)