Big break for Haditha defense: key Marine witness granted immunity

by Nathaniel R. Helms

December 28, 2007 -- Marine Corps Sergeant Hector A. Salinas (erroneously identified as a murder suspect by the media for his role at Haditha, Iraq but never charged) has been granted testimonial immunity by the general overseeing the investigation of the so-called “massacre” of 24 Iraqi citizens killed that day.

On November 19, 2005 Salinas, then 21, was a grenadier in a squad of Marine infantrymen from Kilo Company, 3^rd Battalion, 1^st Marines that was ambushed by an Al Qaeda financed and led attack force at Haditha. His four-vehicle convoy was struck by a remotely detonated Improvised Explosive Device that killed LCpl Miguel Terrazas, a 20-year old Texan and wounded two other Marines. Simultaneously their convoy received sustained automatic weapons fire from insurgents hiding in several nearby homes. During the ensuing firefight, the squad killed eight insurgents and 15 civilians that lived in three of the four homes from which the enemy sprang the ambush. An attached Human Intelligence Exploitation Team later identified at least 11 other insurgents involved in the attack who were hired and led by Al Qaeda foreign fighters operating in Haditha.

The civilians died when a four-man fire team led by Staff Sergeant Frank Wuterich, then a 26-year old sergeant, stormed the houses with grenades and automatic weapons fire. Before counter-attacking the insurgent strong points, Wuterich, Salinas, and Cpl. Sanick Dela Cruz engaged five Iraqi men fleeing from a nearby car that inexplicably showed up at the ambush site at the same time the IED went off.  Dela Cruz, now a sergeant, later testified that Wuterich shot the men down without provocation. Salinas is expected to refute that claim.

Then Wuterich’s fire team stormed the houses where the automatic weapons fire originated from. During that violent clearing operation 15 civilians, including at least eight women and children, were killed.  Subsequently eight Marines – four of the enlisted men who were in the fight – were charged with unpremediated murder and assault, and four officers were charged with dereliction of duty for allegedly covering up the incident.

Countering prosecution claims

Now 23, Sgt Salinas is considered a key defense witness in the case. For more than a year Salinas has been in limbo at Camp Pendleton, California waiting to discover what would become of him. Although he was eligible for discharge last spring, Salinas voluntarily remained in the Marine Corps past his enlistment expiration date to avoid getting recalled to active duty and then charged with a criminal offense, his attorney said.

Salinas served two combat deployments in Iraq, including the fierce Battle of Fallujah in November, 2004. Since returning home from Iraq in 2006 he has been promoted to sergeant.

On November 21, 2006 a National Public Radio “Morning Edition” broadcast named Salinas as one of five enlisted Marines that would be charged with war crimes for his actions at Haditha. The NPR story claimed one of its reporters had obtained the names of the suspects from an anonymous Department of Defense source. NPR’s erroneous report was picked up and repeated numerous times without correction by other news organizations until the Marine Corps announced exactly who it would charge on December 21, 2006.

Salinas was granted the limited immunity by Lt. Gen. Samuel T. Helland, the commanding general of Camp Pendleton’s 1st Marine Expeditionary Force and U.S. Marine Corps Forces Central Command. As such, Helland is the “convening authority” and final arbiter in the ongoing Haditha investigation. Helland took over the responsibility for conducting the probe from Gen. James N. Mattis when he was promoted and transferred last fall.

Helland granted Salinas immunity at the request of attorney Jack Zimmermann, a Houston-based lawyer representing LCpl Stephan Tatum against multiple charges of negligent homicide, reckless endangerment and assault.  Zimmermann introduced motions to grant immunity to Salinas, LCpl Justin Sharratt, and Lt Col Jeffrey Chessani before Tatum’s military judge on December 17.

Zimmermann said Salinas was given immunity and the request to grant Chessani the same status has not been answered, although nobody expects that the judge will do so. Granting Chessani immunity would effectively eliminate him as a defendant.

[5 January 2008: Defend Our Marines has learned that Justin Sharratt was not granted immunity from future prosecution and is not expected to testify.]   

In return for testimonial immunity, which prevents the government from using Salinas' testimony in any subsequent proceedings, the sergeant is required to testify truthfully about his knowledge of events at Haditha.  His grant of immunity will become effective after he signs the agreement when he returns to California from Christmas leave, according to Daniel K. Hagood, his Dallas-based attorney and a retired Marine Corps infantry officer. 

Eight Marines were originally charged with crimes at Haditha. Charges have been dismissed against four Marines and two have been ordered to courts-martial.  Cases against two other Marines are still pending.

Possible broad impact

Salinas, among other things, is expected to refute testimony offered by Sgt. Sanick Dela Cruz, who was granted immunity from murder charges to testify against his former squad leader. Dela Cruz, who admitted urinating on the dead body of one Iraqi he shot after Wuterich killed the man, claims Wuterich told Salinas and him “that if we ever got hit again we should kill everybody in that vicinity to teach them a lesson."  Dela Cruz claims they had the conversation with Wuterich after a roadside bomb had gone off that injured several Marines.

Wuterich is currently waiting to discover whether he will be charged with 17 counts of unpremeditated murder, two counts of soliciting another to commit an offense, and one count of making a false official statement. He faces life without parole if he is convicted.

LCpl Stephen Tatum, who accompanied Wuterich during the counterattack, faces a maximum of 19 years in prison if found guilty of involuntary manslaughter, reckless endangerment, and aggravated assault charges for killing several civilians. His court-martial is scheduled to commence on March 28, 2008.  

Lt Col Jeffrey Chessani, 43, faces court-martial for dereliction of duty and violation of a lawful order based on the allegations that he failed to properly investigate the shootings. The distinguished career Marine and highest ranking officer to be charged with a crime at Haditha could serve three years in prison if convicted on all counts.  His court-martial is scheduled to commence on April 28, 2007 at Camp Pendleton.

Brian Rooney, a member of the Thomas More Law Center representing Lt. Col. Chessani, said from his office in Ann Arbor, Michigan that if Salinas testifies as expected it could prove beneficial for his client. 

“In a perfect world, if Salinas’ testimony helps exonerate SSgt Wuterich of murder, then it removes the possibility that any war crime was committed,” he explained. “But that is in a perfect world. In our client’s case the train has already moved too far down the tracks. The government has too much invested in Lt Col Chessani’s case to allow that to happen.

“Unless the convening authority decided to dismiss the charges, my guess is that our client’s case will go to court-martial anyway.”

The last Marine to be investigated in the Haditha incident was 1st Lt. Andrew A. Grayson, of Springboro, Ohio.  His Article 32 hearing was held last November. The 26-year old officer faces three charges of dereliction of duty, impeding an investigation, and making a false statement related to the incident. Each of those charges comes with the possibility of five years' prison time and dismissal from the service. His charges are unrelated to anything Salinas can testify about. 

Attorney Daniel Hagood said Salinas is eligible for discharge about 90 days after he returns to Camp Pendleton from home leave, but has not decided whether he will reenlist or ask for his discharge from active duty. In the event the scheduled court-martial of Tatum is changed, or he is called as a witness in any other case, Salinas will still be required to return to Camp Pendleton as a witness or face possible involuntary recall under existing Involuntary Ready Reserve, Hagood added.

Nathaniel R. Helms
Defend Our Marines
28 December 2007

Note: Nat Helms is a Contributing Editor to Defend Our Marines. He is a Vietnam veteran, former police officer, war correspondent, and, most recently, author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007).

© Nathaniel R. Helms 2007

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