Despite the public outcry, the Navy SEALs are still facing special courts-martial after their January 2010 arraignments; SO1 Huertas and SO2 Keefe in April and SO2 McCabe in May 2010.

Military Judges Rule on Motions

The military judge in the Huertas and Keefe case closed the last motion hearing by directing the April courts-martial be held in Baghdad so the Iraqi detainee would be present to testify live in the courtroom.  The government declined to attempt to bring the detainee to Norfolk for the trials.  The military judge determined the defense attorney’s request for the Constitutional right to confrontation required the Iraqi detainee to be present.  The government request to depose the detainee was denied, and the entire cadre to support two special courts-martial will travel to Iraq.

A second military judge, ruling on the McCabe case, upheld the government request for a deposition but did not move the court-martial to Iraq.  The special court-martial will be held in Norfolk, VA, beginning on May 3, 2010.

General Cancels Deposition

Since those two military judge’s rulings, Major General Cleveland has canceled the government trip to Iraq to depose the detainee.   This leaves the SO2 McCabe defense and government teams without the Iraqi detainee’s presence or sworn statements as evidence in the case.

Major Hasan, the alleged suspect in the shooting of 13 Soldiers at Fort Hood last week, has sparked numerous discussions on the possible motives he had for his horrendous act. One of National Public Radio’s programs, “Tell Me More,” explored one aspect of the debate on Monday, November 9, 2009 with one of the Law Firm of Puckett and Faraj, PC’s attorneys, Haytham Faraj.

Haytham Faraj, Esq.

Haytham Faraj spent over 22 years in the Marine Corps, and is a native of Lebanon. He is fluent in Arabic and served in the Marines as both an enlisted infantryman and as an officer in charge. He attended the Citadel and American University Law School, receiving his JD in 2005. His last duty in the Marines was the Senior Defense Counsel at Camp Pendleton, CA.

National Public Radio

Listen to Haytham Faraj at this link: National Public Radio, Tell Me More, “For Muslims, Military Service Sometimes Met with Hostility.” November 9, 2009.

The Board of Inquiry for Lt Col Chessani scheduled for December 3^rd will determine whether he failed to properly report or investigate the events at Haditha, Iraq, in November of 2005. If the board finds that such a failure has been substantiated, they can make a recommendation as to whether LtCol Chessani should be retired, and if so, at what pay grade. They may recommend that he retire as a Major rather than his current rank of Lt Col.

Purpose of a Board of Inquiry

The purpose of a Board of Inquiry is to have senior officers review the officer’s record and allow Lt Col Chessani to rebut any allegations supporting his separation for cause or retirement in a current grade or lesser grade and define the characterization of his service.

Board Members

The Marine Corps is assigning one Brig General and two Colonels to hear Lt Col Chessani’s case. It is highly unusual that a Brig General would be assigned to such a board for a Lt Col BOI when the regulation only requires the board be senior in grade to the officer. The Marine Corps could have assigned senior Lt Cols and one Colonel to hear the case. The board members selected must be officers without personal knowledge pertaining to the case. It would have been difficult to find board members when the associated allegations surrounding the incident at Haditha have had broad and frequent publicity.

Rights in a Board of Inquiry

The Board of Inquiry is an official proceeding, with a recorder, rights to legal counsel, opportunities to present matters, present and/or question witnesses under oath, rights to challenge any member of the board for cause, rights to submit evidence, rights to give sworn or unsworn testimony, presentation of oral and written (either, or both) testimony, and rights to rebut a board recommendation.

Secretary of the Navy

The final decision regarding the future of a Naval or Marine officer facing separation proceedings rests within the authority of the Secretary of the Navy. The Secretary acts upon the recommendation of the Board of Inquiry either by approving, disapproving, or modifying the recommendation. Assignment of continued duty, retirement or separation actions are made by the appropriate administrative offices after the Secretarial decision. If the officer feels the Secretary’s decision was not appropriate, his or her options after separation or retirement are with petitions to either a Board of Corrections of Naval Records or the Naval Discharge Review Board.

The Associated Press reported this week that the Marine Corps dropped charges against Sgt Jermaine Nelson in the death of detainees, one of four men who surrendered when the squad entered a house in Fallujah in November 2004. The wiliness to plead guilty to the lesser charges on the charge sheet were negotiated in a plea bargain, but Sgt Nelson still faced a court-martial with possible sentencing to prison, a dishonorable discharge, a felony conviction record and ineligibility for any Veterans Administration benefits.

Military Justice Process

Sgt Nelson, through his civilian attorney, worked a plea bargain deal prior to the court-martial with the government military trial team (prosecution). This was not a case of the government dropping the charges of murder or not holding the court-martial, but a case of the military justice process working correctly given the evidence in the case.

Information to Suspect a Crime

The process begins when a commander is informed of something irregular during an operation. This information can be through the chain of command by someone reporting comments they hear from other military members or by other military members who witnessed the action. In this case, a squad member of Sgt Nelson’s, was applying for a job with the FBI in 2006 after leaving the Marine Corps. During a polygraph test for entrance into the FBI, this squad member confessed to the shootings. The FBI turned the evidence over to the Marine Corps who requested an NCIS investigation.

Evidence and Appropriate Punishment

The evidence was gathered and charges preferred against three of the squad members. Two were acquitted including Sgt Nelson’s squad leader, setting a precedence that the evidence and facts of the cases did not support murder charges. Sgt Nelson’s military attorney reviewed the specific evidence against his client, and determined the failure on his client’s part to be a lesser charge rather than murder or voluntary manslaughter. He negotiated with the government for a plea bargain and superseded the court-martial proceedings with the plea. During the court-martial, the government accepted the guilty pleas for lesser charges based on the evidence and facts of the case. Punishment for those lesser charges was set by the judge but superseded by the negotiated plea bargain agreement.

On 31 Aug 09, the Navy and Marine Corps Court of Criminal Appeals reversed a military judge’s ruling that CBS didn’t have to turn over the outtakes of the Wuterich CBS 60 Minutes interview to prosecutors of SSgt Wuterich. The outtakes are reported to contain statements by Wuterich, which the government hopes will convict him of manslaughter in some of the deaths of 24 Iraqis in November 2005.

CBS 60-Minute Tapes

The ruling sends the early 2008 subpoena back to the Marine Corps to force CBS to turn over the outtakes to the government. CBS may seek to appeal this ruling to the highest military appeals court, the Court of Appeals for the Armed Forces. CBS has yet to announce its position on this ruling.

UCMJ Article 62 Appeal Process

If CBS appeals this ruling, it may be another six months to a year before there is a resolution to the issue. This military legal rule does not specifically state that the government is allowed to stop a court proceeding to appeal this type of trial court ruling. Yet in this case, that is exactly the tactics the government used to delay the court-martial of the last remaining Marine accused of causing of the deaths of some of 24 Iraqis killed in November 2005. The court-martial against SSgt Frank Wuterich will not begin until this matter is settled.

Battalion Commander’s Charges Dropped

A recent decision by the Marine Corps has dismissed all charges against the Battalion commander, LtCol Chessani. He was charged with failure to investigate and properly report the deaths of the civilians that day in 2005. The Marine Corps apparently recognized the fact that there was no proof that LtCol Chessani had been derelict in his duties.

Wuterich: The Last Man Standing

This ruling by the NMCCA is important for defining the procedures for the Uniform Code of Military Justice (10 U.S.C.) and for all future cases. But in the meantime, the life of one Marine, SSgt Frank Wuterich, is suspended without any foreseeable resolution to the accusations levied against him.

Marine Corps Lt General George J. Flynn has determined to drop all charges of dereliction of duty for Chessani’s investigation and reporting of the killing of 24 civilians in Haditha, November 2005. The general directed a board of inquiry for Chessani to determine his final rank for retirement.

Boards of Inquiry

The North County Times article indicates that this may be an unusual action for the Marine Corps to take a senior officer to a board of inquiry. Most officers who are retirement eligible and faced administrative or legal actions under the UCMJ during their last held rank are usually required to demonstrate honorable service to be eligible to retire at that rank. The Law Firm of Puckett & Faraj, PC has represented several mid-level and senior officers in boards of inquiry in the last 10 years. Lt Col Chessani’s attorneys, Robert Muise and Brian Rooney have the opportunity to provide the board the chain of events in Haditha, 19Nov09 to show no dereliction of duty. We have no doubt that they will prevail and that LtCol Chessani should retire as a LtCol.

Haditha Courts-Martial

What is of concern in this latest Haditha decision is the fact that the Marine Corps has determined that seven of the original eight military members were not guilty of manslaughter, murder or dereliction of duty. They appear to be hoping they can blame the entire incident on the remaining member of the squad, SSgt Frank Wuterich, who has yet to be given either a fair or speedy trial.

Proof of Wrongdoing

Throughout the course of the last 3 ½ years of investigations and military courts-martial, the Marine Corps has yet to prove wrongdoing according to the battlefield rules of engagement or failure of command. In their zeal to convict a Marine, any Marine, they apparently have proceeded on a false premise of what actually happened during an complex insurgent attack in what was the first of five attacks on U.S. Forces in Haditha, Iraq, in November of 2005.

The LA Times Blog was the first to reported that a Marine Officer, Capt Douglas Wacker, would be arraigned on August 18, 2009 at the Marine Corps Recruit Depot, San Diego. He is facing charges of rape and indecent assault for an alleged incident with former girlfriends.

District Attorney Declined to Prosecute

The District Attorney in New Orleans, where the alleged incident occurred, declined to press charges after an investigation. Yet the Marine Corps insists on resurrecting this alleged event apparently to demonstrate that it’s cracking down on sexual assaults.

Wacker’s Defense Attorney – Haytham Faraj

Capt Wacker’s defense attorney, Mr. Haytham Faraj, of the Law Firm of Puckett and Faraj, stated there was no rape and that Captain Wacker engaged in consensual sex with other University of San Diego Law students. The University cleared him of misconduct but is withholding his law degree pending the outcome of his court-martial scheduled for February 8, 2010.

The Marine Corps has banned Social Networking sites like Facebook and Twitter from their unclassified computer network for at least a year. This was based on a warning from US Strategic Command of the possible cyber attacks and loss of critical information about the military to any enemy forces monitoring the sites.

Social Networks Help Us Keep In Touch

At first glance this seems unfair of the military to take away a source of communications with a loved one on the battlefield. It is comforting to get messages from our Soldiers, Marines, Sailors and Airmen when they are deployed for long periods of time. But that information can be used against them. Anyone monitoring Facebook or MySpace can piece together little bits of information in separate entries. An innocent entry about having to go out on patrol near a river the next day, could set the military member up for a surprise attack, where they could be seriously injured or killed.

Operational Security

Any talk about what happened on patrol the day before could lead to military criminal investigation if the commander or First SGT hears of it. A civilian friend could share it with a friend of theirs who is in uniform, and that information could get relayed to the Service. One of the commander’s responsibilities is to ensure strict communication and operational security. If any of his or her troops are commenting on a patrol happening in the future, that’s a violation of operational security.

Military Justice Steps In

The military justice system not only could step in, but if there is probable cause to believe there was a sharing of critical information on an open source computer, investigators may ask the base commander for a search authorization and take your home computer for analysis. Those military members who live off the base aren’t exempt. The military investigative service can with probable cause, get a civilian judge to issue a warrant for your home computer. Take care about what you say on an “open” communications source. Your military career and possibly your life depend on it.

The recent release of the new US battle rule to stop return fire on Afghan homes is intended to limit the collateral damage on the battlefield.  This adds to the rules of engagement (ROE) and further restricts the military in combat actions.  There are good military and political reasons for this addition to the rules of engagement but a possible consequence is the increased need for military justice.

Military ROE Training

ROE are trained and exercised by the military until every member of a unit is aware of and understands how to engage the enemy combatant.  This new ROE will require on the ground training in Iraq and Afghanistan and the military is very effective at getting the information out to each and every member in the field.

Military Member Responsibility

The individual application of the rules when faced with dire combat situations is a different matter.  As in all limitations on application of force, there might be an increase the incidents where military members, under duress, take action and are then held individually accountable for violations of the rules of engagement.

Violations of ROE

During Operation Iraqi Freedom and Operation Enduring Freedom, there have been several high profile media military justice cases involving military members killing civilians.  Examples include the Sadr City case where an Iraqi was deliberately shot in his home and another was dispatched in a “mercy killing.”  The Hamdania Case, where 8 Marines and 1 Sailor were accused of killing an Iraqi civilian instead of the suspected Al Qaeda fugitive they set out to kill.  The Haditha case, where 24 Iraqi civilians died after an IED explosion killed one Marine and seriously wounded two others.  The Haditha military case is still pending for 2 of the 8 originally accused.

Military Good Order and Discipline

Restrictive rules of engagement support good order and discipline on the battlefield along with ensuring safety in a dangerous environment.  The military lawyers, schooled in the law of war, provide battlefield assessments of each military action for commanders.  But they are not there, fighting hand-to-hand with the frontline military members who make decisions under duress.  The hope is that this new ROE can be applied to the battlefield to prevent unnecessary loss of civilian lives and actions of individual military members when called upon will not violate the new ROE.

The North County Times reported on June 16, 2009 that the Commandant of the Marine Corps has chosen to appoint a new convening authority in the Haditha case of Lt Col Jeffrey Chessani.   Chessani was charged with dereliction of duty after 24 Iraqi civilians were killed in Haditha in November 2005.  His case was dismissed in April, by a Marine Corps judge, because of unlawful command influence tainting the prosecutions case.

US Marine Corps Commandant

The Commandant of the Marine Corps, General Conway, chose to appoint a new commanding general officer to decide if the Marine Corps will send Lt Col Chessani back to a court-martial.  Options included completely dismissing the case against Chessani, preferring the same or different charges against him, or levying a lesser administrative discipline against the former battalion commander.

Chessani’s Command Responsibility

Lt Col Chessani was charged in December 2006, along with 7 other Marines alleged to be responsible for the deaths of 24 Iraq civilians in Haditha after an IED explosion killed a Marine and seriously wounded two others.  Their commanding officer, Lt Col Chessani, was responsible for oversight and command and control.  He was charged with dereliction of duty in failing to instigate a full investigation the day after the November 2005 event.

One Marine Waits for Court-Martial

The Squad Leader, SSgt Frank Wuterich, remains on active duty at Camp Pendleton waiting for his court-martial, 3 ½ years after the incident.  His court-martial is on hold, while the government appeals a motion, where the judge denied them the use of the CBS 60 Minute outtakes from Sgt Wuterich’s 2007 interview.   The Navy Court of Appeals heard oral arguments, on June 25, 2009.   No matter which way the Navy Court of Appeals rules, either CBS or the Government are expected to appeal the ruling to the U.S. Court of Appeals for the Armed Forces; continuing to delay justice for SSgt Wuterich.