Commanders Preoccupied with
Haditha Legal Battles While
Their Marines Fight on Two Fronts
by Nathaniel R. Helms | June
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.
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.
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.
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.
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
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.
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
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.
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
Who's minding the war?: commander's attention “substantially” impacted
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.
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.
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.
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.
did not testify. Instead his personal lawyer and Staff Judge Advocate,
Col John Ewers, told the court the meetings continued after Helland
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.
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.
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.
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
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.
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.
two people are dead who didn't have to be"
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.
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.
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
two people are dead who didn’t have to be,” he said.
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.
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
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.
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
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.
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
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
was eventually court-martialed and sent to prison, Brahms said.
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
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.”
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.
the war continues.
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).