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Congratulations, Lt. Nathan Phan!

May 1, 2007: Assault charges were dropped, and justice (of a kind) was done

Read the story at the North County Times

Also read the editorial, Lt. Phan deserved better

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Here's the story of 2nd Lt. Nathan Phan....

2nd Lt. Nathan Phan, a Kilo Company platoon commander from the 3rd Battalion, 5th Marine Regiment, was charged with assaulting three Iraqis in March and April 2006 during efforts to obtain information about insurgent activity in and around the Anbar province village of Hamdania in western Iraq.

He also was accused of making a false official statement in connection with one of the alleged victims and for conduct unbecoming an officer.

During a turbulent five-day Article 32 hearing conducted in January to help determine whether Phan should be court-martialed, conflicting evidence was presented to the hearing officer, Lt. Col. William Pigott.

Three enlisted Marines testified that investigators from the Naval Criminal Investigative Service falsely attributed statements to them linking Phan to the assaults.

The hearing also disclosed that the government had no evidence that Phan filed a false official statement, an accusation rooted in a radio report regarding an Iraqi detainee.

On March 19, 2007, General Mattis ordered the case to court martial.

Mattis rejected the third count of assault and dismissed charges of making a false official statement and conduct unbecoming an officer.

The two assault charges allege that Lt. Phan choked two Iraqi detainees in Hamdania, placing an unloaded pistol against one's mouth and spraying soda pop into the nose of the other and saying it was acid. The alleged incidents took place during an attempt to gather intelligence about insurgent activity in an Anbar province region northwest of Baghdad.

On May 1, 2007, assault charges were dropped.

Lt. Phan will face administrative punishment for mishandling interrogations and could be discharged from the service.

One of the lieutenant's defense JAGs commented to the owner of this website, "Lt Phan is pleased with the outcome. While he may be accepting non-judicial punishment it is still his position and absolute firm belief that any and all actions he took were solely in order to accomplish the missions that he was assigned and were for no other purpose. His actions saved Marines' lives and for that he is proud."

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Documents:

* Explosive press release in the 2nd Lt. Nathan Phan case, February 2, 2007.

* Memorandum by defense attorney David Sheldon after the shouting match that ended the debacle of the 2nd Lt. Nathan Phan hearing, January 28, 2007.

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News:

* Assault charges dropped against lieutenant in Hamdania case, North County Times, May 1, 2007.

* Hamdania lieutenant ordered to court martial, North County Times, March 19, 2007.

* Attorney: Accused Camp Pendleton Marine didn't get fair hearing, North County Times, January 30, 2007.

* Attorney: Accused lieutenant is really a 'hero', North County Times, January 28, 2007.

* Witness for accused Marine lieutenant threatened with perjury charge, North County Times, January 27, 2007.

* Accused Marine's hearing resumes Friday, North County Times, January 26, 2007.

* NCIS investigative methods come under fire over prosecution of Marine lieutenant, North County Times, January 15, 2007.

* Attorney says agents made up assault case evidence, North County Times, January 12, 2007.

* Hamdania assault case reaches court today, North County Times, January 10, 2007.

Analysis

Editorial

Lt. Phan deserved better

Our view: Dropped charges follow trial riddled with troubling developments

There's an old joke about the term "military justice" being an oxymoron. Unfortunately for Marine 2nd Lt. Nathan Phan, who this week had criminal charges against him dropped , that joke probably isn't very funny.

Last summer, Phan was charged with three counts of assault and one count of filing a false statement. Only indirectly, those charges stemmed from an investigation into the April 2006 slaying of a retired Iraqi policeman in Hamdania. Eight men under Phan's command, seven Marines and one Navy corpsman, were eventually charged with the April 26 slaying of Hashim Ibrahim Awad.

 

But Phan was never accused of participating in or having any knowledge of that grisly event. Instead, investigators pursuing the Hamdania killing charged Phan with choking two Iraqi detainees, placing an unloaded pistol against one's mouth and spraying soda pop into the nose of the other, saying it was acid. They also charged Phan with falsely filing a radio report stating that he had released one of the insurgents being questioned.

Although the charges against him have been dropped, the Phan affair exposes some of the worst lapses and abuses of the military justice system. Seen in the worst light, Phan may not have simply been a victim of circumstance -- he may have been a scapegoat.

During a preliminary hearing earlier this year, three enlisted men testified that the Naval Criminal Investigative Service, also known by its acronym NCIS, had falsified statements about them having witnessed Phan commit the alleged assaults. After those disturbing revelations, the presiding officer, Lt. Col. William Pigott, made clear his intention to ask higher-ups to conduct two investigations, one examining the actions of attorneys who dealt with the witnesses and the other to review the conduct of NCIS. The results of that request are still pending.

If your only exposure to NCIS has been the television show of the same name, you're entitled to surprise. But if there's one thing that the recent court proceedings at Camp Pendleton have demonstrated, it is that NCIS appears woefully unprepared for such probes. For starters, NCIS still relies mostly on written statements, not video and audio recording as do most civilian criminal investigators. That leaves a lot of room for fuzzy memories, or worse, funny business. We hope the agency changes this outdated policy posthaste.

As part of his plea deal, Phan admitted that he had exceeded "the permissible limits of the official rules of engagement regarding interrogation of insurgents."

Phan's platoon was given an excruciatingly difficult assignment: Trained to execute combat and patrol missions, they were asked instead to gather intelligence about insurgent activity in Hamdania, in the volatile Anbar province northwest of Baghdad. They were given a grand total of 45 minutes of instruction on detainee handling and counterinsurgency work. These Marines were clearly under pressure and underprepared. Still, an intelligence officer at battalion headquarters testified that despite their limited training, the squad was doing exemplary work.

Defenders of the eight men charged in the April 26 slaying have used the "fog of war" to justify their crime, but the damning testimony and guilty pleas of four Marines and the Navy corpsman have made that rationale difficult to swallow. Phan, however, is another story, and deserves the benefit of the doubt afforded him by even the military justice system.

There is no question that any criminal charge against U.S. military personnel based on accepted standards of evidence should be brought to trial. But to try Lt. Phan on such flimsy evidence -- a 24-year-old who volunteered to do his country's dirty work and lead men under the most difficult of circumstances, while most of his peers are still trying to decide what they want to be when they grow up -- is unacceptable.

More opinion

*"The investigators of the Naval Criminal Investigative Service, the federal agency responsible for investigating sailors and Marines accused of criminal acts, must immediately start recording their interviews and interrogations of witnesses and suspects with something better than a ballpoint pen." NCIS must record interviews, North Country Times, February 9, 2007.

* Marines should be judged by a jury of peers, not by media: Letter to the editor / OC Register, December 25, 2006.

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A Military Justice System Gone Amok

* Did you know there is a conviction rate of 96% in NCIS cases? Unequal Justice, US News & World Report, December 16, 2002

* Read about the abusive methods of the agency prosecuting the Haditha Marines: NCIS Exposed: The Daniel M.King case.

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Other sites of interest:

Lance Corporal Justin Sharratt  |  Staff Sergeant Frank D. Wuterich

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