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Lawyers on Haditha Panel
Peer Into Fog of War

New York Times, May 17, 2007

Lawyers on Haditha panel peer into fog of war

By PAUL von ZIELBAUER

CAMP PENDLETON, Calif., May 16 — On its face, the military hearing that ended here Tuesday concerned just one issue: whether an inexperienced Marine lawyer’s failure to question the killing of Iraqi civilians in Haditha 18 months ago constituted a criminal dereliction of duty.

In fact, the seven-day hearing opened a rare public window onto a debate about how the Marine Corps is fighting in Iraq against a ruthless insurgency that uses civilians as cover and disregards the laws of conflict taught in the United States.

The presiding officer, Maj. Thomas McCann, seemed disconcerted about the testimony he had heard from several officers, from the general in charge of the Second Marine Division down to the first lieutenant whose men killed 24 civilians in Haditha on Nov. 19, 2005. Several officers described civilian deaths as unfortunate but justifiable if they occurred during combat.

On Friday Major McCann, an experienced Marine lawyer, interjected some unsettling questions about how many civilian deaths it would take to constitute a violation of military regulations.

Alluding to Haditha, he asked, “At what point do we have to scratch our heads that we killed a lot more civilians than enemy?”

Because so many witnesses had testified that civilian deaths from “combat action” need not be investigated, Major McCann said, “I’m trying to figure out what authority they are citing.”

The witness testifying then, Col. Keith R. Anderson, a senior Marine Reserve lawyer now with the Department of the Navy, delivered a succinct and telling answer. “There is no authority,” he said. “I think it’s just a mind-set.”

The two officers had tackled some of the same issues that had troubled military investigators, including Maj. Gen. Eldon A. Bargewell of the Army, who bluntly criticized Marine commanders in a secret report last year for tolerating large numbers of civilian deaths in combat operations.

“All levels of command,” including the American command in Baghdad, “tended to view civilian casualties, even in significant numbers, as routine and as the natural and intended result of insurgent tactics,” General Bargewell wrote.

The report suggested that Marine commanders — from Maj. Gen. Steve Johnson, the commander of ground forces in Anbar Province, to First Lt. William T. Kallop, leader of Company K’s Third Platoon — created “an unintended command climate” that did not encourage compliance with the laws of armed conflict.

Testimony in the hearing last week, convened to determine whether Capt. Randy W. Stone had violated military laws for not investigating the civilian deaths, bore out many of General Bargewell’s main findings.

Maj. Carroll J. Connolly, for instance, a lawyer for the Marine regiment commanded then by Col. Stephen W. Davis, said he saw no need to investigate the civilian deaths in Haditha because they had come during combat with enemy fighters.

When Major McCann, the investigating officer, asked what the legal basis was for drawing that conclusion, Major Connolly, who was granted immunity from prosecution for his testimony, said he could not think of any.

Many legal experts said the killing of women and children required investigation regardless of whether it occurred in combat.

“The best course of action would be to immediately do some sort of investigation to see how these people came to be dead,” said H. Wayne Elliott, former chief of the international law division of the Army’s Judge Advocate General’s Legal Center and School in Charlottesville, Va.

Mr. Elliott, a retired Army lieutenant colonel, also pointed out that investigating the Haditha killings would be required to comply with Marine commanders’ requirements to report significant civilian deaths up the chain of command. “How can you report it,” he asked, “if you don’t see an obligation to investigate it in the first place?”

It was questions like those that Major McCann repeatedly seemed to grapple with.

At another point in the proceeding last week, he questioned a Marine battalion intelligence officer, Capt. Jeffrey S. Dinsmore, who had inspected the scene at Haditha.

“If there had been 150 bodies N.K.I.A. that day,” Major McCann asked, using the military’s abbreviation for noncombatants killed in action, “where would we be, in your mind?”

Captain Dinsmore, a 21-year veteran testifying by telephone from Iraq, offered a relatively impassioned response. He said the Iraq war rarely provided clear lines between combatants and civilians. The marines in Haditha that day, under small-arms fire in a profoundly hostile Sunni Arab region, could either abide by the laws of war and risk being killed, or could take aggressive steps to protect themselves and their squad members, and risk committing a war crime.

“The reality is then and the reality is now, you let loose marines in a T.I.C. against a hostile situation, taking small-arms fire,” Captain Dinsmore said, referring to “troops in contact,” “they don’t have the training nor do they have the presence of mind to differentiate between civilians and insurgents. It stinks.”

Military and civilian lawyers said the Marine Corps was unlikely to charge the division commander, Maj. Gen. Richard A. Huck, with a crime related to Haditha, despite the general’s testimony last week that he knew about the deaths hours after they occurred but did not ask for follow-up reporting.

But given the widespread misperception throughout his division’s ranks that civilian deaths were not cause for great concern, military justice experts said that prosecutors could have charged other officers as well.

Gary D. Solis, who teaches the laws of war at Georgetown University, said that General Huck could have been charged but that “I can see the argument against it as well.” Mr. Solis also said that the general’s chief of staff, a colonel, should be reprimanded for not telling the general about questions from a Time magazine reporter that amounted to a war crime allegation.

Instead of being charged with dereliction charges similar to those facing Captain Stone, three other Marine officers — Lieutenant Kallop, the Third Platoon leader; Maj. Dana G. Hyatt, a battalion civil affairs officer; and Major Connolly — were granted immunity from prosecution in exchange for their testimony against Captain Stone.