Behind the Haditha debacle

Mark Walker:

...

A day after the decision, prosecutors said they would appeal. They say they are doing so because of the effect the ruling could have on the primary target in the Haditha prosecutions, Staff Sgt. Frank Wuterich, the Camp Pendleton Marine who led his squad in the killings following a roadside bombing in November 2005.

"He's been the No. 1 guy they've been after from Day 1," said an attorney with intimate knowledge of the case and the discussions that have been taking place in Washington.

What was unlawful in the Chessani case, a judge said, was that a legal adviser to the general overseeing that case and Wuterich's took that job after first serving as an investigator into the events at Haditha, an assignment that also made him a prosecution witness.

Those dual roles constituted a fatal conflict of interest, the judge said, a grievous sin in the military justice system. It's also one that legal experts say was readily avoidable.

Unlawful command influence occurs when a senior military officer knowingly or unknowingly acts in a way that compromises what should be a commander's independent decision.

The Chessani ruling is reverberating throughout the Marine Corps not only because of its potential impact on the Wuterich case, but also because it serves as an indictment of how the Haditha prosecutions have been handled almost from the start.

"The concept of unlawful command influence includes the perception of its presence," Gary Solis, a former Marine Corps judge and prosecutor who teaches military law at Georgetown University, wrote in an e-mail to the newspaper. "Military justice cannot afford even the perception that the government has its fingers on the scales of justice."

...
This was discovered without getting into the Murtha madness and what the former Commandant may have told him. I think they may only be digging a deeper hole with the appeal. These are cases that never should have been brought, notwithstanding the command influence issue. The primary cause of the civilian deaths at Haditha was two enemy war crimes. The first camouflaged themselves as civilians and then used civilians as human shields. A fair inquiry would have focused on this enemy conduct.

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