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Whack-A-Mole!
The story of Lt. Col Chessani's
Article 32 hearing

© Nathaniel R. Helms 2007

Defend Our Marines / August 8, 2007

Whack-A-Mole: The story of Lt. Col Chessani's Article 32 hearing

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Evidence currently before Lt. Gen J. N. Mattis reveals that senior Marines at 1st Marine Regiment in Iraq lavishly praised Lt. Col Jeffrey R. Chessani in the days and weeks after the ambush at Haditha, Iraq twenty months ago.

Their opinion didn’t change until senior generals in Baghdad began applying pressure after a news story by Time magazine reporter Tim McGirk alleged Chessani’s Marines had massacred two dozen innocent Iraqi civilians. The firefight that ensued on Nov. 19, 2005 left 24 Iraqis and one Marine dead and eleven Marines wounded.

Despite being considered “truly one of the finer thinkers in this COIN [Counter-Insurgency] environment” by 1st Marine Regiment C.O.  Col. Stephen W. Davis; and having “a superb grasp of the COIN fight,” according to 2nd Division C.O. Maj Gen Richard A. Huck, Chessani was later charged with dereliction of duty and failing to obey orders. He will be back in the hearing room at camp Pendleton, California Wednesday morning to begin hearing prosecution evidence that he failed to make two combat journal entries called JEN notations after the battle.

Davis was Chessani’s immediate superior in Iraq and wrote his fitness report and Huck, as C.O. of the 2nd Marine Division, endorsed it. Davis subsequently used his Fifth Amendment protection against self-incrimination to avoid testifying and Huck has changed his tune. Today Chessani and Huck have an adversarial relationship, another casualty of two Iraqi con men who suckered an entire country into believing the worst about its Marines.

A Marine who was there claims McGirk and Time magazine were victims of one of the most successful counter-intelligence coups perpetrated by the Iraqi insurgency to date. The counter-intelligence coup was conceived and executed at Haditha by Thaer al-Hadithi and Ali Omar Abrahem al-Mashadani, two Sunni Muslims that McGirk obtained an inflammatory video from. McGirk later used the bogus “evidence” they provided to make an unsubstantiated case of murder against the Marines in the press.

Mr. Hadithi is best known for videotaping the alleged murder site at Haditha after the horrific fight that left 24 Iraqis and one Marine dead, eleven Marines wounded, and seven others still fighting for their lives.  Hadithi and Mashadani subsequently founded the Hammurabi Organization for Human Rights and Democracy Monitoring Association in January 2006, about six weeks after the events at Haditha had passed. Coincidentally it is the same amount time that Mr. Mashadani had been out of Abu Gharib Prison.

Mr. Mashadani was incarcerated at Abu Gharib for five and one-half months between July and December 2005 while Marine interrogators questioned him about his counter-intelligence activities. Mashadani was released on a general amnesty “kick out” along with 500 other suspects, his warders said. Three months later he was the darling of Time magazine.

"Refinements" to the charges

At the end of Chessani’s original Article 32 hearing, the Investigating officer (IO) agreed to add additional charges at the prosecutors’ request. Col. Christopher Conlin characterized the additions as “refinements” to the old charges, the defense says. Subsequently they prepared a 22-page letter of “Objections to Investigating Officer’s Report” and mailed it to Mattis. Mattis then ordered that Chessani’s Article 32 investigation be reopened, Chessani’s civilian lawyers at the Thomas More Law Center in Ann Arbor said.

The evidence presented to Mattis on July 25 is part of a package of considerations the defense has asked Mattis to review as convening authority and final arbiter in the matter of the US vs. Lt Col. Chessani, USMC.  The defense, led by Lt Col. J.W. Shelburne, wants Mattis to disregard the I.O.’s report. They called it “factually inaccurate, legally deficient, and grossly misleading,” Defend Our Marines has learned.

It wasn’t until McGirk reported his fallacious story in Time magazine in March 2006 that Chessani became the pariah, the guy who has to be kept in the box for damage control to work. One senior Marine on duty at Pendleton said his comrade’s fall from grace was like the popular internet game “Whack-A-Mole” – except he called it “Whack-A-Marine” because every time exculpatory evidence pops up it immediately gets slapped down in the name of protecting the Corps.

In the upcoming hearing the prosecution refused a defense request to allow thirteen witnesses to testify on behalf of Chessani. Unlike civilian Grand Juries that can hear all the evidence, the IO does not have to allow evidence he deems irrelevant from being presented during the Article 32 hearing whether it is exculpatory or not.

Conlin’s decision not to provide any more military witnesses or new evidence for the re-opened Article 32 hearing has not gone down well with the defense attorneys.

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, and a 24 year former county prosecutor, said, “The government’s refusal to make any of our requested witnesses available makes the new hearing nothing but a sham.”

Conlin has already recommended to Mattis that Chessani face general courts-martial for three charges of dereliction of duty and failing to obey a lawful order.

McGirk and the Marines

High on the long list of procedural irregularities the defense has problems with is the matter of Time magazine and Tim McGirk, the quick shooting crusader who said his “personal odyssey” ended when Chessani and six other Marines who fought at Haditha were accused of murder and malfeasance, McGirk chortled a few days before last Christmas.

McGirk, meanwhile, still insists his facts were all straight despite overwhelming evidence to the contrary. He refused to testify at Chessani’s original Article 32 hearing and has not responded to numerous requests for an interview. Last year, however, McGirk told Columbia Journalism Review reporter Paul McLeary:

“I just know in my case that we deliberately got all of our facts together, and then and only then did we go to the military,” he says. “We held off on reporting it until we could get their side of the story. So, I don't think we were in any great rush to accuse them of a massacre.”

Not according to the evidence Mattis is now reviewing.

McGirk’s e-mail allegations were reviewed by Huck, Davis and Maj. Samuel H. Carrasco, the Third Battalion’s operations officer. Carrasco has been granted immunity to testify. They decided McGirk’s hysterical claims included all sorts of nonsense. According to their testimony McGirk initially claimed that a single Marine had done all the killing. McGirk claimed the berserk Marine was the brother of one of the Marines killed in the IED attack. Carrasco claimed McGirk told him the unidentified Marine “went on a rampage that resulted in the killing of the civilians,” and that “four young men were herded into a large closet  in front of the womenfolk and the closet was then sprayed with bullets and all four young men were killed.”

Given the huge body of evidence to the contrary, the Marines dismissed McGirk’s allegations as nonsense. 

According to the testimony presented to Mattis, McGirk was just warming up. In his mind the five Iraqi men killed by the white car became “four students” who died when they “were forced out of their car “to be “shot dead execution-style” by Marines. McGirk even claimed the event was reportedly filmed by an unknown film maker who never materialized with his film. In McGirk’s unfounded accusations the Marines diabolical ruthlessness didn’t end until the next morning when the murderers dumped the lifeless innocents at the morgue of the local hospital.

Huck and the senior 1st Marine Regiment staff all heard McGirk’s allegations before Chessani did. Yet none of them called for an investigation until after Army generals and Pennsylvania’s Congressman John Murtha got involved, they admitted during the investigation. The prosecution’s investigation showed Col. Gary Sokoloski, a lawyer and former SJA, was aware of the civilian deaths, Time magazine’s allegations, and the Haditha City Council letter containing its murder allegations months before any investigations were called for. He subsequently took the Fifth, like Col. Davis, to avoid possible incrimination by testifying, the evidence forwarded to Mattis shows.  

Before taking the Fifth, Davis told investigators that despite Time’s allegations and because of McGirk’s hysterical ramblings; he didn’t feel a need to open an investigation into the journalist’s claims, the record shows. He further dismissed the claims of the Haditha City Council because the insurgent sympathizers among them frequently used exaggerated claims of murder and mayhem to sow seeds of disharmony among the Iraqi population and American public opinion.

Lt. Col Chessani's superiors knew the allegations before he did

In an e-mail dated 12 February 2006, Huck tells Army Lt. Gen. Peter Chiarelli, formerly the commander of all ground forces in Iraq, “I support our account and do not see a necessity for further investigation.”  The defense says Huck sent the message in response to the Time magazine allegations brought by McGirk. Chiarelli replaced Lt. Gen. John Vines as commander of all Coalition ground forces in Iraq in January 2006.

Col Gary Sokoloski, Huck’s chief-of-staff and a SJA lawyer, was aware of the civilian deaths and the various allegations as well. Sokoloski later acknowledged in a sworn statement that he was aware of them before Chessani was. In a sworn statement Sokoloski made before taking the Fifth he categorically stated that he found no evidence of any criminal activity of violations of the LOW by Chessani’s battalion, the evidence forwarded to Mattis shows.

The JEN entries Chessani failed to create are the basis of operational reports that ultimately become the history of the Marine Corps. They are made in real time and later groomed for accuracy and completeness when time allows, Marines who make them said. Retired Marine Lt. Col. Bob Weimann, a Desert Storm veteran and formerly the C.O. of Kilo Co., 3/1 during 1982-1983, remembered the struggle to keep up with JEN entries in his day.

“Combat JEN became a lost art within the US Marine Corps in the later 70s - early 80s. In theory, combat JENs are a historical record that are suppose to be eventually filed in the national archives. Most battalion commanders blow them off.”

Weimann said it was hard when he was a battalion executive officer to impress upon his Marines how important JENs are to history. Harried radio operators and operations NCOs made entries when they could and “reconstructed” the events in more detail later on when things weren’t so hectic. Weimann said combat commanders in contact simply don’t have time to deal with JENS issues.

“It would be interesting to see how many battalion combat JENs made it to the archives from Desert Storm to Haditha,” he opined Monday.

 

Nathaniel Helms
Defend Our Marines
8 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)

© Nathaniel R. Helms 2007

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