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Commanders Preoccupied with
Haditha Legal Battles While
Their Marines Fight on Two Fronts

by Nathaniel R. Helms | June 28, 2008
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Evidence introduced during pre-trial motions in the court-martial of Marine Lt. Col Jeffrey Chessani for his role at Haditha revealed that commanding generals of Marine Corps Forces Central Command are often preoccupied with court fights as well as battlefields while the seemingly endless investigations drag on.

The Marine Corps Forces Central Command – CENTCOM – was assigned the onerous task of investigating and adjudicating the sensationalized charges against Chessani. CENTCOM is the umbrella organization that controls Marine Corps’ war fighters in Iraq and Afghanistan.

The Marine Corps designated the CENTCOM commander to be the convening authority and final arbiter in the prosecution of Chessani and seven subordinates charged with war crimes at Haditha and other unrelated criminal cases. The job fell on Gen James N. Mattis, in the spring of 2006 a lieutenant general fresh from leading his Marines in a successful campaign against al Qaeda of Iraq and its minions in Iraq’s rebellious al Anbar Province.  

On November 1, 2007, Mattis was elevated to four-star rank and his responsibilities passed to Lt. Gen. Samuel Helland, the current commander. Their assignment is called a “dual-hatted” command because the CG of CENTCOM simultaneously commands the 1st Marine Expeditionary Force of which Chessani’s battalion was part.

Mattis and Helland sifted through thousands of pages of investigative reports from 65 Naval Criminal Investigative Service special agents, the 107-page “Bargewell Report” on Haditha incident that included thousands of attachments and exhibits, as well as the appeals and entreaties of lawyers, families, journalists, pundits, and politicians.

In total, Mattis and Helland spent hundreds of hours directing courtroom battles to dispose of the unrelenting scandal while their Marines were engaged in daily combat.

The information came to light during the motion hearing leading to the dismissal of all charges against Chessani last week. The former commander of 3rd Battalion, 1st Marines was accused of orders violations and dereliction of duty for failing to report the possibility of war crimes at Haditha to higher headquarters.

On November 19, 2005 a squad of Marines from his battalion killed 24 Iraqis during a daylong firefight after a roadside ambush killed one Marine and wounded two others. Following a year of fallacious news reports about an alleged massacre and mayhem by the ambushed infantrymen, and three military investigations, eight of their number – including Chessani – were charged with murder and cover-up.

In addition to the Haditha scandal, Mattis and his successor were saddled with adjudicating the Hamandiyah murder investigation and the on-going probe into security breaches and selling secrets by a dozen senior Marine reservists stationed at Camp Pendleton, as well as the criminal cases pending against two Marines charged with murder at Fallujah and other recent criminal cases that will never see the light of day in the media.

Who's minding the war?: commander's attention “substantially” impacted

CENTCOM is responsible for Marines stationed across an area holding about 55 percent of the world’s known oil reserves. Their potential area of operations stretches from Kenya, Somalia, Eritria, and Ethiopia in Africa to Jordan, Saudi Arabia, Kuwait, Iraq, the smaller Gulf states, as well as Afghanistan and Pakistan, the Department of Defense says.

Documents and testimony included in Folsom’s June 17 motion hearing to dismiss charges against Chessani revealed that Mattis and Helland met with lawyers for as many as five hours a day at least once a week for more than two years while discussing the cases.

At the same time, the generals commanded thousands of Marines headed for Iraq in the “Surge” offensive, 14,000 Marines fighting in Afghanistan, a dozen discreet operations in the Horn of Africa, and 1st Marine Division units making “routine” deployments to both countries.

The meetings occurred wherever Mattis and Helland’s duties took them, the record shows. Gen. Mattis testified that whether he was at CENTCOM headquarters in Tampa, Florida, in Iraq or Afghanistan, the meetings continued via teleconference and email.  Mattis told the court that his attention was “substantially” impacted by the thorny legal questions under discussion among his legal staffs.

Helland did not testify. Instead his personal lawyer and Staff Judge Advocate, Col John Ewers, told the court the meetings continued after Helland took command.

In addition to counseling Mattis and Helland, Ewers represents the 1st Marine Expeditionary Force. Part of his job is maintaining the illusion that CENTCOM keeps a separate legal agenda, that he is not privy to, when it conflicts with the interests of  his client.

Ewers’ admission of routine participation in CENTCOM discussions of the Haditha affair, during and after investigating Chessani and other senior Marine officers, led to charges of unlawful command influence merely by being present in the meetings.

Mattis testified that the appearance of his former legal counselor, and long-time confidant, at the CENTCOM discussions did not color any of his decisions. His testimony took Gen. Mattis away from duties in Norfolk, Virginia helping run NATO. 

Chessani’s defense team argued that Ewers’ participation – no matter how innocuous – poisoned the government's case so badly that Chessani could not receive a fair trial.

On June 17, Folsom dismissed charges of dereliction of duty and orders violations against the career infantry officer when Mattis and Ewers were unable to overcome compelling evidence supporting the defense team’s complaint.

“As the result of the magnitude and multitude of potential military justice issues facing him during this period, Lieutenant General Mattis established a routine by which he could remain informed of case developments and obtain legal advice on investigations and subsequent courts-martial. At least once a week, a legal meeting was held, during which Colonel Ewers, Lieutenant Colonel Riggs (the trial counsel for high profile investigations) and the officer in charge of the special prosecution team (or LSST Charlie); were either present in person at these meetings or were piped into the meeting by video teleconference,” observed military judge Col Steven Folsom in his verbal decision to dismiss the charges against Chessani.

Folsom’s ruling in Chessani’s case is currently on government appeal before the Navy-Marine Corps Court of Appeals in Washington, D.C.

Ironically, the charges were originally brought by Mattis in part because of the investigation and recommendations of Col. Ewers. Folsom ruled that Ewers inappropriate involvement in the Haditha matter was ultimately responsible for having the same charges dismissed in Chessani’s case, the transcripts show.

"Now two people are dead who didn't have to be"

The growing legion of critics skeptical of the motives behind Chessani’s continued prosecution claim that the distraction of the endless investigations has adversely impacted the entire Marine Corps, especially the junior Marines of CENTCOM who rely on their commanders for everything from beans and bullets to legal protection.

One defense lawyer, who insisted upon anonymity for this story, said that the cases have essentially gutted the Corps ability to address equally pressing - although less spectacular - criminal cases world-wide.

He cited the example of pregnant 20-year-old Marine Lance Cpl Maria Lauterbach, who vanished last December before she could testify against another Marine she had accused of rape. The lawyer said the Naval Criminal Investigative Service, and the Marine lawyers assigned to Camp Lejeune where she was stationed, were stretched so thin by the Haditha investigation and other high profile incidents they gave her case short shift.

“So now two people are dead who didn’t have to be,” he said.

Not everyone familiar with the unique, ongoing legal struggles believes that the burden placed on Mattis and Helland have affected their ability to command or their Marines ability to fight.

Retired Brig. General David M. Brahms, formerly the Staff Judge Advocate of the Marine Corps and counsel to the Commandant of the Marine Corps, said that the demands of time and resources required from the generals to adjudicate the cases were merely exacerbated because they were “riding on the back of  operational concerns” that also demand unrelenting attention.

Brahms, said that critics who complain that Mattis’ decision to embroil himself in the criminal cases adversely affected his ability to effectively command are dead wrong. Ditto for Helland, he said.

“I don’t think that it does,” Brahms said in a telephone interview Friday. “A commander gets to decide how much energy he wants to use after doing the minimums. It is a personal judgment that he [Mattis] needed to know everything.”

“If the question is ‘did his involvement adversely affect his running of the war?’, I have not heard or seen any evidence that it did,” the Harvard law school graduate added.

Brahms is no stranger to complex, high profile cases. During the late Seventies he was a captain and case officer during the investigations of former prisoners of war suspected of collaborating with the North Vietnamese. In the Eighties he headed up the world-wide investigation of spying triggered by two Marines accused of selling secrets to the Soviet Union’s insidious KBG while assigned as embassy guards in Moscow and Vienna.

After huge headlines and a Corps wide dragnet Sergeant Sgt. Clayton J. Lonetree and Cpl. Arnold Bracy were implicated in the spy scandal, which, after two years of investigation, turned out to be of minimal significance.

Lonetree was eventually court-martialed and sent to prison, Brahms said.

While the debate over the impact of the war crimes trials rages on, so does the Haditha investigation. A motion to dismiss the charges against Wuterich because of unlawful command influence is pending, his civilian lawyer Neal Puckett said Tuesday. Wuterich is charged with nine counts of voluntary manslaughter, aggravated assault and other related charges that could land him in prison for most of his life if convicted.

Wuterich’s court-martial is currently on indefinite hold while government lawyers and the CBS television network battle in the same court of appeals over the Marine Corps’ right to obtain video out-takes Wuterich made almost two years ago during an appearance on the television news magazine “60 Minutes.”

The Navy-Marine Court of Appeals ruled last week that CBS had to turn over the tape to a military judge handling the matter for review and disposition. CBS said yesterday it will appeal that decision as well.

Meanwhile the war continues. 

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Nathaniel R. Helms
Defend Our Marines
28 June 2008

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).

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© Nathaniel R. Helms 2008

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