September 15, 2011
Here in the United States, Marine Corps Staff Sergeant Frank Wuterich is waiting for court-martial. He has been waiting five years. In Baghdad, State Department officials negotiating a new Status of Forces Agreement with the Iraqi government need ‘talking points’ to convince them that our country is all about prosecuting service members accused of crimes against the Iraqi people.
Frank Wuterich is a talking point. He first came to the attention of official Washington when he was accused of leading a fireteam of Marines on a rampage through Haditha, Iraq on November 19, 2005. He was indicted a year later for multiple murder and related offenses. Wuterich has been in limbo at Camp Pendleton, Calif. ever since. He can’t get promoted, he can’t get out and he can’t catch a break.
Last Thursday State Department official Michael McClellan, Spokesman / Counselor for Public Affairs at the American Embassy in Baghdad, wrote Defend Our Marines publisher David Allender seeking assistance exploring our archives for information concerning the number of Marines and soldiers accused, tried and convicted of crimes in Iraq and Afghanistan. ‘This email is UNCLASSIFIED,’ the correspondence said.
“I spent much of this afternoon going through your excellent website as it is the best, and only! Website that has truly comprehensive information about trials of U.S. service members accused of crimes in Iraq and Afghanistan,” Mr. McClellan wrote. “We are most interested in the Iraq-related trials, as this is relevant to on-going talks about a post-2011 U.S. presence here.”
Flattery is a wonderful thing. The United States government’s official mouthpiece in Baghdad seeking help from humble Defend Our Marines. Most reporters can count on the fingers of one hand how many times the government has reached out to them for special consideration when they weren’t getting indicted.
At the risk of looking a gracious gift horse in the mouth the request raised a couple of red flags with David. Why does the Department of State need anything from Defend Our Marines. And why does the State Department need to talk about the young men and women already convicted, sentenced and serving time? We thought we should try and find out.
DOM saddles up
Within the parameters of the curious netherworld we live in Counselor McClellan seemed an amiable enough fellow. We exchanged a few e-mails and shared a few stories before the Counselor for Public Affairs for the American Embassy in Baghdad sent DOM to the Department of State in Washington, D.C. for comment.
“Actually, what we were looking for was simply a database, how many trials, how many convictions/acquittals, sentencing, etc.,” Mr. McClellan explained. “The info on your website up to 12/2006 was actually very helpful and gave us at least some numbers to compile. This is really about having the facts at hand in case questions come up relating to SOFAs, immunities, etc. Our interest is not so much in particular trials, but the overall picture of trials and the results thereof. Does that make sense?”
It didn’t so DOM asked him to explain.
“As for the talks, we are not making any comment at this time beyond what comes out of Washington, so just watch the news every night,” Mr. McClellan wrote. “Thanks again for your help, your website is a very valuable resource as “believe it or not, those data simply do not exist anywhere else that I have been able to find.”
It sounded like more grease.
Taking the gentleman’s advice anyway we contacted the Department of State (DOS) where another friendly gentleman named Harry Edwards works as a department spokesman. Edwards used to be a navigator on a B-52. He garnered international attention providing the official U.S. response to an e-coli outbreak in Europe. Killer cucumbers! Another time he explained the State Department usually didn’t talk about bounties, in this case $25 million reward for the head of Osama bin Laden. Definitely not a light weight.
“I have made contact with a DOD source that says he will put you in contact with his experts who may have more info. I have nothing from my experts on any of this. You will need to talk to DOD,” Mr. Edwards wrote in a subsequent email.
A winding trail
Talk about red flags. The State Department asks DOM for information intended for treaty talks apparently being conducted by the Department of Defense. It didn’t make sense! We couldn’t imagine the Department of Defense conducting treaty negotiations the State Department didn’t know anything about.
Taking Mr. Edwards advice we hooked up with Maj. Christopher Perrine, a Public Affairs Officer for the Office of the Secretary of Defense. The good major was a Marine tank officer before he was a PAO. He was quick to remind me that he was not speaking for the Corps. He was on detached duty to the OSD.
The reason the OSD was handling the inquiry instead of DOS was because the treaty being negotiated wasn’t really a treaty, “it is an agreement,” Maj. Perrine explained. The Department of Defense apparently can negotiate agreements.
We rushed to the dictionary. A ‘treaty’ is a formal contract or agreement negotiated between countries or other political entities. An ‘agreement’ on the other hand is a ‘contract or arrangement, either written or verbal and sometimes enforceable by law,’ at least according to the Encarta Dictionary.
“If we are going to have a continued presence in Iraq they (service members) have to have the legal protection of a SOFA,” Maj. Perrine said. The ‘SOFA’ he was talking about is the new Status of Force Agreement to base troops in Iraq after the current agreement expires on Dec. 31, 2011. It is the unpopular ‘agreement’ the Iraqi government has been sitting on for two years.
In 2008 the Iraqi government, under considerable financial and military pressure from the United States, adopted a temporary agreement based on the premise all US forces would be out of Iraq by the end of the 2011. The long name is the “Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq.”
Things got so heated during the negotiations one Iraqi reporter threw a shoe at former President George W. Bush after the agreement was grudgingly adopted by the Iraqi Parliament. The agreement provides a legal framework for American operations inside Iraq until December 31, 2011.
SOFA: No sticks
So what does all this have to do with SSGT Frank Wuterich? Nothing and everything! Wuterich is an embarrassment to the U.S. negotiators. They really can’t use his prosecution as a shining example of American military jurisprudence despite the fact the so-called ‘Haditha Massacre’ indictments were arguably the most publicized criminal cases to come out of the Iraqi War. The usually stingy Marine Corps even built a $3 million ‘Justice Center’ at Camp Pendleton to make sure justice was applied in appropriate style. In it seven of the Marine staff sergeant’s co-conspirators indicted for murder, massacre and cover up were either exonerated, had their charges dismissed, or were found ‘not guilty.’ One Marine general officer and two colonels were cashiered by the Secretary of the Navy for failing to adequately inform the press what really happened there. Many other careers were destroyed. Wuterich is the last man standing and he is far from a sure bet.
‘I don’t think that helps them at all,’ Maj. Perrine said.
Being a former enlisted man this reporter has a very narrow view of the entire SOFA arrangement. For the ordinary service member the local SOFA is what protects them from prosecution by foreign governments without at least the appearance of due process. How and when they are arrested, by whom, and how they are treated while being held for crimes against the host nation are all laid out in black & white. Any veteran who served overseas anywhere heard all about the local SOFA the day they arrived in the host country. In the more amenable countries comfortable with legal due process there is a reasonable assumption the service member’s hosts will provide enough protection to allow the accused a realistic expectation of fair play.
For example foreign jailers are not supposed to beat jailed American service members with sticks or other damaging objects while incarcerated. Stick beating is a favored form of corporal punishment in Iraq. A Marine lieutenant testified during the investigation that at Haditha he twice had to take a stick away from an Iraqi soldier beating his fellow citizens with it after the alleged massacre. Why Americans should expect better treatment was not discussed.
The Major held up Japan as a shining example of a good SOFA partner.
“We will do the same thing in Iraq,” Maj. Perrine explained.
That brought us back to talking points. SSGT Frank Wuterich is not the issue confronting the U.S. officials urging the Iraqi government to adopt a SOFA that allows the U.S. to base American troops in Iraq “beyond” 2011, Maj. Perrine said.
It is merely one tiny issue among hundreds, the biggest objection being the many Iraqis want us to leave and don’t understand why we don’t want to go. Those vehemently opposed to a continued U.S. presence are using the Haditha Massacre, the alleged murders at Fallujah in 2004 by Marines from the same platoon, and a laundry list of other cases that were dismissed, reduced or later thrown out in American courts to demonstrate how callous the U.S. is to the sensitivities of the Iraqi people. This is the same guys Maj. Perrine says we are depending on to provide “due process” to American service members and civilians charged with crimes in Iraq.
The real issue is apparently finding common ground for keeping American service members in Iraq beyond 2011. Who and when the Iraqis can imprison Americans is a big sticking point. The Iraqis insist on having original jurisdiction in the prosecution of U.S. service members. Essentially they want a free hand in prosecuting and imprisoning American troops stationed in peaceful Iraq after the U.S. finishes pulling out its combat forces after Christmas. Maj. Perrine said that U.S. troops in other countries that have status of forces agreements are often handed over to the hosts for trial and punishment once the ground rules have been established.
Unfortunately, any agreement will likely be unenforceable once the U.S. pulls its combat troops out of Iraq before the new year. That means the U.S. is going to have to depend of the tender mercies of the Iraqi government to protect our citizens and ensure justice is done.
The current number of troops, that can expect fair play in Iraq after 2011, is about 3,000, a number South Carolina Senator Lindsey Graham (R-SC) announced as official on Fox News last week. Moqdr al Sadr of Sadr City, the radical Sunni cleric who really doesn’t like Americans at all, says he will “dismantle” the current government if it succumbs to U.S. pressure to keep “any” troops in Iraq. Sadr’s political cronies represent about 10 percent of the Iraqi Parliament, according to the Iraqi government. Sadr recently announced in the world press he was halting his follower’s attacks against withdrawing U.S. troops so they can all leave.
So if it isn’t 3,000, how many troops do we intend to keep in Iraq beyond December 31, 2011?
“That has not been established yet. No decision has been made,” Maj. Perrine said.
When asked what would happen if the U.S. doesn’t obtain a new SOFA, he said, “I don’t have anything on that.”
So I said, “You don’t have any information at all?”
Maj. Perrine said, “When we say we don’t have any information on that, it doesn’t mean we don’t have any information, it just means we don’t have any information we are going to tell you.”
Transparency in the 21st Century.