Thursday, August 19, 2010

The scheduled court-martial of SSgt Frank Wuterich and the aborted trial of former Illinois governor Rod R. Blagojevich don’t seem to have much in common at first glance.

Blagojevich is a grasping Illinois politician with a bouffant hairdo prone to blabbing. Wuterich is a hardcore, quiet Marine who wears his hair high and tight. Both however are charged with crimes simple in name and so complex in character it is hard to understand exactly what crimes they are charged with committing, much less why.

The notion comes, from all places, a New York Times report about jurors being confused about what the defendant was charged with, how to determine his guilt, and exactly what the erstwhile governor’s motives were. According to today’s electronic Times, ‘Jurors said it took them several days just to figure out how to begin to break down their assignment into manageable tasks not to mention how to understand the legal terminology’


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It sounded familiar. Wuterich has at various times been charged with a variety of heinous crimes. Originally he was charged with murder, lying, and conspiring to cover up the incident. It seems useful to list them as the Marine Corps made them on Dec. 21, 2006. And no, ‘2006’ is not a typo!

Charge I: Violation of the UCMJ, Article 118 (Unpremeditated murder) (Maximum punishment: such punishment other than death as a court-martial may direct. [Dishonorable discharge, forfeiture of all pay and allowances, confinement for life])

Specification 1: did murder Ahmed Khutar Musleh, also known as Ahmed Fenr Muselh.
Specification 2: did murder Wagdi Aida Alzawi, also known as Wgedi Aida Abd.
Specification 3: did murder Kaled Aida Alzawi, also known as Kaled Aida Abd.
Specification 4: did murder Mohmed Tabal Ahmed, also known as Mohmed Betel Ahmed.
Specification 5: did murder Akram Hamid Flaeh, also known as Akram Hmid Fluih.
Specification 6: did murder Huda Yasin Ahmed.
Specification 7: did murder Aida Yasin Ahmed.
Specification 8: did murder Mohmed Yunis Salim.
Specification 9: did murder Aisha Unes Salim.
Specification 10: did murder Sebea Yunis Salim.
Specification 11: did murder Zainab Unes Salim.
Specification 12: did murder Marwan Aiad Ahmed. (Charge dropped)
Specification 13: did murder six persons inside a house identified as House 1, by disregarding the requirement to have positive identification prior to engaging a target; and participating in clearing House 1 with deadly force without conducting positive identification prior to engaging individuals in House 1.

Charge II: Violation of the UCMJ, Article 134 (Soliciting Another to commit an offense) (Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years)

Specification 1: did wrongfully solicit Corporal Dela Cruz to make a false official statement.
Specification 2: did wrongfully solicit Corporal Dela Cruz to make a false official statement.

Charge III: Violation of the UCMJ, Article 107 (False official statement) (Maximum punishment: Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years)

Specification: did with intent to deceive, make a false official statement.

After government prosecutors, led by the same LtCol Sean Sullivan who will prosecute Wuterich on September 13, determined those charges weren’t a good fit they changed them, and then changed them again, degrading the complaints to lesser charges when the motivating malice to commit such terrible deeds failed to materialize. In both cases the government threw the book at them. Cops and prosecutors like to say ‘we’ll throw everything up against the wall and see what sticks.’

Blagojevich was charged with 24 counts of violating Federal law including trying to sell a Senate seat, conspiring, lying, and performing various other misdeeds apparently so vague the jury could only find him guilty of lying to a Federal investigator. ‘The jury instructions ran more than a hundred pages, and was as elaborate as some income tax forms, according to jurors confronted with the case. And many of the 24 counts they were being asked to consider came in multiple parts and were highly technical and interconnected,’ the Times said.

It was like, ‘Here’s a manual, go fly the space shuttle,’ one of the jurors reportedly said.

The Times ‘determined the jury’s conclusion came as a surprise to many since prosecutors had long suggested that their evidence would be overwhelming.’

A lot of it came down to, What was his intent? one juror said. You could infer something if you looked at it one way, or not if you looked another.

The judge decided the jury was so flummoxed by the complexity of the prosecution’s case he declared a mistrial. The Times quoted another juror saying the jury that deliberated for 14 days was all over the place trying to decide if Blagojevich was guilty of anything else. Meanwhile millions of dollars and thousands of irreplaceable man hours went up in a puff of smoke.

In Wuterich’s case, the government has already tried seven times eight times if the co-opted person of Sgt. Sanick Dela Cruz is counted to find somebody guilty of something at the so-called ‘Haditha Massacre.’ Ironically, it is the same event local officials in Haditha, Iraq told North County Times reporter Mark Walker and Lt. Gen. Samuel Helland they call the ‘Haditha Accident.’

When the gushing city officials told Helland on November 22, 2008 how happy they were with the Marines’ intervention, he was still was the convening authority who decided there was enough evidence of wrong-doing to prosecute Wuterich. It still seems very confusing. Meanwhile millions of dollars and thousands of man hours has already gone up in smoke.

No doubt the panel a military’s name for a jury in Wuterich’s court-martial will be confronted with the same confusing obstacles Blagojevich’s vexed jury faced. The first roadblock they will have to overcome is determining intent, said Neal Puckett, Wuterich’s lead civilian attorney. What possessed Wuterich to lead a four-man fire team from a decimated, battle rattled squad of Marine infantrymen in an attack where the civilians died? As Puckett pointed out, “The truth of the story is yet to be revealed.”

So what is the secret ‘truth’ behind Wuterich’s intent that day? He didn’t know the five Iraqi men who died inside his 100-meter security zone seconds after a huge IED killed one of his Marines and wounded two others. All he knew was his primary responsibility was to protect his Marines from more damage so he killed them. He admits it. It is what he was trained to do, Wuterich says.

Neither did he know that 15 civilians, the 15 his fire team killed, were in houses he assaulted after his platoon leader told him to “clear South.” The government still contends he should have made a personal identification (PID) before pulling the trigger. The MOUT (Military Operations on Urban Terrain) training Wuterich received, both in the States and Iraq, didn’t have a provision for PIDing while assaulting a ‘hostile’ house. The correct manner of assaulting a ‘hostile’ house was to stack, kick in the door, throw in a grenade, and follow up with withering weapons fire aimed center mass at anything that moved. The Marines did that, but it still doesn’t prove intent. So what was his intent?

Duty comes to mind. Marines must do their duty. They even have a song about it. Disregarding the convoluted, latently obtained, divinely reconstructed physical evidence that ‘proves’ Wuterich may or may not have shot anyone; it still takes a lot of guts to lead rather than order men into a potential killing field. Wuterich could have fallen back to a safe position and called in an airstrike. Puckett, himself a former Marine, says that the Rules of Engagement in play that day allowed just such a move. In fact, Wuterich’s battalion commander LtCol Jeffrey Chessani did just that to a house 600 meters away.

That brings up another point. Puckett is going to introduce evidence that proves Wuterich was within the boundaries of the existing Rules of Engagement on November 19, 2005 when he and his men counterattacked after a sophisticated ambush had taken out a quarter of his 12-man squad. Puckett said Wuterich cannot be charged with violating the ROE because the Marine Corps changed the rules ‘after’ Wuterich deployed his fire team. Simply stated, Wuterich can’t be charged with a crime that wasn’t one when he did it. It is a fundamental principal of American jurisprudence, Puckett said.

The government is calling 47 witnesses. Many of them are Marines and former Marines who served with Wuterich at Haditha that day. One of them is Justin L. Sharratt, a 20-year old who didn’t even have to participate in the attack that would cause him so much pain. Sharratt was sitting in a Humvee providing security when he saw Wuterich’s shorthanded, ad hoc, fire team disappearing across a wadi toward the houses where automatic weapons fire had originated from.

By the time Sharratt dismounted his M-240 ‘Golf’ machine gun from its mount and ran 200 meters (600 feet) to the squad’s location, the clearing operation was already over. There was no rage, no stated or implicit desire for revenge, he says. The platoon leader said “clear the buildings” and they did it. The attack was so sudden, vicious and complete that nobody survived except two ‘leakers’ that fled when the attack began. Sharratt intends to testify exactly that, he said.

Several hours later Sharratt and Wuterich cleared another fortified house. This time they encountered four men armed with at least two AK-47 assault rifles. The veteran of Fallujah heard a bolt rack, the very alarming sound of a bullet entering a chamber. Sharratt, now armed with a Squad Automatic Weapon, entered anyway. When his weapon jammed he withdrew behind a wall and pulled his pistol.

The second time he entered the room, Wuterich had his back. Both men fired until the Iraqis were down. In other times and other places both men would have received high decorations for valor. It takes incredible bravery to enter a room where armed men lay in wait. Instead, Sharratt was charged with murder, charges that Gen James N. Mattis later dropped.

In writing his reasons for dropping unpremeditated murder charges against Sharratt, Mattis said that brutality, including the death of innocents, is a part of war.

“The experience of combat is difficult to understand intellectually and very difficult to appreciate emotionally.” Mattis wrote. “With the dismissal of these charges LCpl Sharratt may fairly conclude that he did his best to live up to the standards, followed by U.S. fighting men throughout our many wars, in the face of life or death decisions made in a matter of seconds in combat. And as he has always remained cloaked in the presumption of innocence, with this dismissal of charges, he remains in the eyes of the law and in my eyes innocent.”