Defend Our Marines | August 4, 2007
Lt Col Chessani faces new Article 32 in Haditha case
Former 3rd Battalion, 1st Marine commander Lt Col Jeffrey R. Chessani is waiting to discover whether he will face two additional felony charge of dereliction of duty for failing to adequately investigate and report the deaths of 24 Iraqis killed during a vicious daylong firefight in Haditha, Iraq eighteen months ago. The day long fight November 19. 2005 left 24 Iraqis and one Marine dead and 11 other Marines wounded.
His Article 32 hearing is set to reopen next Wednesday at Camp Pendleton, California before hearing officer Col. Christopher Conlin. Chessani already faces general courts-martial for two counts of dereliction of duty and one count of violation of a lawful order based on Conlin’s recommendations. The new charges are for failing to make appropriate combat journal entries (JEN) after the ambush and firefight at Haditha left one Marine dead and 11 others wounded.
Defense attorney Brian Rooney said the two new counts accuse Chessani of the same offenses he is already charged with, but were drawn up by prosecutors using different legal terms. The ‘new’ hearing is to clarify whether prosecutors want to file the new charges along with, or instead of, the original charges, Rooney said.
“It’s the shotgun approach,” Rooney explained Friday. “The new charges of dereliction of duty for not updating a journal entry properly are now the subject of this new Article 32. These are the charges that defense attorneys argued against the first time around when the prosecution tried to bring them in at the eleventh hour. We are confident these charges don’t have any merit.”
The ‘eleventh hour’ complaint Rooney referred to is the prosecution claim at the end of Chessani’s June Article 32 hearing that it had suddenly discovered new evidence that Chessani was guilty of the additional crimes, defense attorneys said. Chessani’s defense team subsequently asked Lt. Gen. J. N. Mattis to reopen the hearing to determine the validity of the charges. Mattis is the convening authority in the case.
An Article 32 hearing is roughly similar to a civilian Grand Jury proceeding except the hearing officer’s findings are merely recommendations that can be ignored by the convening authority that initiates the investigation. The convening authority determines whether the accused stands trial by courts-martial or faces disciplinary action using some other form of military justice.
Rooney’s colleague Robert J. Muise told hearing officer Col. Christopher Conlin that he had allowed the case to turn ‘from a search for the truth to a search for a prosecution.’ Both lawyers work for the Thomas More Law Center, a non-profit advocacy law firm based in Ann Arbor, Michigan that is donating its resources to defending Chessani.
In a letter Muise wrote June 21 in response to Conlin’s ‘Request for Information’ Muise blasted the colonel for allowing the new charges to even be considered. Col. Conlin is not an attorney. Muise harshly criticized him for allowing the prosecution’s last minute attempt to charge Chessani with the additional crime during his first Article 32 hearing.
“It is evident that the government panicked when it received the dismissal recommendation for Capt. [Randy W.] Stone on 8 June 2007 (Friday) to avoid a similar result,” Muise alleged.
In Stone’s case, hearing officer Maj. Thomas McCann recommended that Mattis dismiss the criminal charges because the evidence did not support them. Until Mattis decides what to do, Stone remains charged with dereliction of duty for failing to investigate what happened at the day long battle in Haditha.
Defense: new charges against Chessani an attempt to protect generals
In a scathing missive to Conlin, Muise complained that the prosecution drafted the charge against Chessani on June 10, the Sunday night before the Article 32 hearing was scheduled to wind up. Chessani, 43, was charged in December 2006 in the biggest U.S. criminal case involving civilian deaths to come out of the Iraq war. The complaint was triggered by a specious report in Time Magazine by reporter Tim McGirk that claimed Kilo Co., 3/1 massacred 24 civilians in retaliation for the death of LCpl Miguel ‘T.J.’ Terrazas. The popular young Marine was killed in the IED blast that initiated the day-long fight. Marine Corps investigators later determined that at least eight of the Iraqis who died were known insurgents hiding in civilian homes waiting to shoot the Marines after the bomb exploded.
Conlin told Mattis that Chessani ‘failed to thoroughly and accurately report and investigate a combat engagement that clearly needed scrutiny.’
Muise vehemently argued that the evidence already developed and introduced clearly shows that Chessani reported 15 civilian deaths and how they died immediately and as thoroughly as possible by multiple means. Muise claims that the appropriate JEN entry was made immediately after the incident and that JEN updates clarifying the situation were then made using emails and telephone calls, both alternative methods approved by an existing operational order.
In his letter Muise said:
“That information, plus much more, was reported to higher headquarters pursuant to authorized means of combat reporting. In fact, Major Connelly, the regimental SJA, ‘flagged’ the JEN in question, but later reconciled it with Division. Consequently, this case is nothing more than an attempt to cast blame where none exists. The ‘ground truth,’ as the government is fond of saying, is that this case is a misguided attempt to find the sacrificial officer in the chain of command to lay blame upon, allowing the remainder of the chain of command (i.e. senior officers, including general officers) to wash their hands of the matter.”
Muise also credits prosecution witness William Hays Parks, the governments own expert on the laws of land warfare, with proving Chessani is not guilty. Muise said Parks ‘day long testimony on May 31’ eviscerated its [government] case.
Testimony drives new charges
The new twist in Chessani’s tortuous pursuit of justice comes as no surprise to astute observers who know Colonel William Hays Parks, USMCR (Ret.), the wizard of the Law of Land Warfare who took the stand on behalf of the prosecution May 31 for about six hours. Parks literally wrote the Department of Defense’s book on how Americans are supposed to conduct themselves in battle. His 102 pages of testimony show how misguided it can be for a ground commander to try and investigate allegations of misconduct or prepare complete situation reports in the midst of desperate battles.
One lawyer who has known Parks since 1984 said to think of him as the guy who writes the playbook for war: a precise, concise list of things combatants and commanders must do to follow the rules. Another way to think of it is as an “instruction manual for dancing through minefields,” another fellow said.
Former Captain James French, a Marine judge advocate who served as Law of War Advisor to the 2d Marine Division and as an action officer for the Special Operations/Low Intensity Conflict Branch of HQMC, began his career as a student of Col. Parks and remains an admirer of the man.
“Calling upon Col. Hays Parks to explain the Law of Armed Conflict (LOAC) is similar to calling upon Jehovah to stop in and explain the Ten Commandants. In either case, you’re going to hear an honest statement of the law from the lawgivers concerned; and, in both cases, thunderbolts will follow if you persist in misapplication of the law as given.”
“The lengthy, detailed, examination of Col. Parks by the prosecuting trial counsel at the Article 32 hearing of the case against Lt. Col. Chessani reveals two things clearly and beyond a reasonable doubt. One: The prosecuting trial counsel charged this case without even a basic knowledge of the Law of Armed Conflict. Two: Now that Col. Parks has explained the law to the prosecuting trial counsel, the application of the Law of Armed Conflict to the facts of this case requires dismissal of all three specifications pending against Lt. Col. Chessani,” French said late Friday evening.
Parks is more than just a big gun in war crimes law, he is the ‘BIG’ gun, military lawyers who know him universally agreed. He is the Department of Defense’s resident expert on the Law of War and Rules of Engagement. In his youth, Parks was an enlisted man in the Marine Corps reserves before getting commissioned through the Platoon Leader Course. He joined the 4th Reconnaissance Battalion while attending law school at Baylor University in Texas. He graduated from Marine Corps Officer Basic School in 1967 and served in Vietnam both as a lawyer and an infantry company commander for a provisional rifle company.
He is a trained sniper as well as DOD’s legal expert on weapons and tactics employed by special operations units. Currently, Parks is the legal advisor for the Joint Special Operations Command “Tier One” units, the shadowy spooks on the pointy edge of counter-insurgency warfare. He also lectures on rules of engagement at the war colleges and staff colleges, the Navy Fighter Weapons School, and Naval Strike Warfare Center. He was the military’s legal authority for bombing Libya in April 1986. In November 1986 he wrote an account called ‘Crossing the Line’ for influential Naval Institute Proceedings magazine.
Ultimately, Parks became responsible for promulgating legal policy for both Marine Corps and Army war fighters. He went to work for the Army in 1979 as its resident expert until moving up the chain to lead the entire Department of Defense Law of Land Warfare effort.
For six hours on May 31 Parks explained to Conlin how ‘rules’ are made for Marines to follow when conducting war. All of his testimony came in response to questions by prosecutor Lt. Col. Paul Atterbury. Conlin is an infantry officer and not a lawyer. It is painfully obvious from the trial transcript Conlin deferred completely to Parks to determine whether any violations of law had been committed, court observers said. The defense ‘with the exception of several procedural objections that were overruled’ remained mute.
Rooney explained why.
“We didn’t question Parks because he said clearly that the battalion CO’s [Commanding Officer] duty is to report, which Chessani did not to investigate. Parks specifically wanted higher ups that were more detached making that call – a call by the way that was specifically made by both Davis and Huck when they said don’t investigate and no investigation necessary. That is all in the record. We were hopeful at that point that Conlin was tracking, but he completely discounted Parks testimony we found out afterwards,” Rooney said Friday afternoon.
Maj. Gen. Stephen T. Johnson, commanding general of Multi-National Force West in Iraq at the time of the Haditha attack, summed up the thinking of the Marine Corps officers who were managing the combat operations that went on at Haditha all day after the early morning ambush that triggered the fight during testimony before Conlin.
“I think that the way this is laid out is that the impression that we are dealing with is that these folks were hit as a result of a coordinated attack that occurred there in Haditha, in that particular incident. That is [what] was reported and that while it is regrettable, I think it was probably considered at that time an element of the circumstances; and that our thought process would have been that, hey, if the enemy hadn’t done it, those people wouldn’t have got killed.”
Defend Our Marines
4 August 2007
Note: Nat Helms served three tours in Vietnam and, most recently, is the author of My Men Are My Heroes: The Brad Kasal Story (Meredith Books, 2007)