Congressman Murtha, Secretary of the Navy, and Several Marine Generals Demanded in Unlawful Command Influence Motion
by Staff
April 24, 2008
ANN ARBOR, MI - Military prosecutors fought'€ desperately'€ to prevent the testimony of Pennsylvania Congressman John Murtha, Secretary of the Navy Donald Winters and several top Marine Generals, including former Marine Commandant Michael Hagee and the current Commandant James Conway.The requested witnesses'€ showed the dirty hand of unlawful command influence - considered by the courts as the "mortal enemy of military justice. " The hearing on the motion to produce the testimony of these high ranking officials concluded yesterday at Camp Pendleton, California.
The Unlawful Command Influence motion (click here to read motion) was one of seven motions brought on for hearing this week by the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan. Court decisions on unlawful command influence require the military judge to avoid even the "appearance of this evil" in his courtroom. The Law Center, along with two detailed Marine lawyers, is defending Lt. Col. Jeffrey Chessani, the highest ranking military officer charged in the November 19, 2005, Haditha incident.
As of now, the judge has granted continuance on Lt. Col. Chessani's court-martial, pushing the trial date back from April 28th to June 17th. We still await Col. Folsom's ruling on the remaining motions.
Law Center attorneys Rob Muise and Brian Rooney, as well as detailed military defense counsel, Lt. Col. John Shelbourne, USMC, and Captain Jeff King, USMC,'€ presented oral arguments on the seven motions to military judge Colonel Stephen Folsom, USMC. '€
"It was obvious from the outset that Lt. Col. Chessani was being made a political scapegoat. Even before the investigation was completed, Congressman Murtha publicly accused the Haditha Marines of "cold blooded murder" and officers of covering it up. Murtha claimed he got his information from the highest level of the military," said Richard Thompson, Chief Counsel of the Law Center.
The criminal charges against Lt. Col. Chessani stem from a house-to-house, room-by-room battle four of his enlisted Marines engaged in on November 19, 2005, after being ambushed by insurgents in the town of Haditha, Iraq. Even though Lt. Col. Chessani immediately reported the events of that day to his superiors, including the death of 15 noncombatant civilians caught in the crossfire, nobody in Lt. Col. Chessani's chain of command, all the way to General Casey showed any interest in conducting an investigation because they understood this to be combat action - not a law of war violation.
However, months later, a Time magazine story instigated by an insurgent propaganda agent, caused Pentagon officials to order the largest investigation in the history of the Naval Criminal Investigative Services (NCIS). As a result, Lt. Col. Chessani, one of America's most effective combat commanders in Iraq, now faces dismissal (an officer's equivalent of a dishonorable discharge), loss of retirement, and imprisonment of up to 3 years. '€
Thus far, after 30 months of investigation costing millions of dollars, the cases against three of the four enlisted men charged for their part in the Haditha incident have been dismissed.
If defense attorneys were able to produce some evidence of unlawful command influence, the burden will shift to prosecutors to show beyond a reasonable doubt that: (1) the predicate facts alleged by the defense are untrue; (2) the predicate facts alleged do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings.
This burden is high because command influence deprives service members of their constitutional rights. It is important to note that the court will determine not only whether there was actual unlawful command influence, but also whether there was an appearance of impropriety that would taint the public's perception of the fairness of the court-martial.
On May 17, 2006, months before the investigation was completed, Congressman Murtha held his first news conference on the Haditha incident. Murtha said he had been told by the highest levels of the Marine Corps that there was no IED, there was no firefight, and the Marines "killed innocent civilians in cold blood. "'€
The next day, Murtha again spoke about Haditha and confidentially proclaimed "All the information I get, it comes from the commanders, it comes from people who know what they're talking about. " "It's much worse than reported in Time magazine. "
He told a reporter for the Philadelphia Inquirer that Gen. Michael Hagee had given him the information on which he based his accusations. '€ '€
Murtha's claim of cold blooded murder and cover-up fly in the face of previous investigations conducted by Army personnel.
The first investigation conducted by Army Colonel G. A. Watt found "there are no indications that [Coalition Forces] intentionally targeted, engaged, and killed noncombatants. " A second, by Army Major General Aldon Bargewell concluded there was no "cover-up" by the chain-of-command, and that "[The inaccurate press release that launched Time magazine's investigation] was not the result of any intent to conceal misconduct . . . "'€ '€
When Colonel Watt's findings were given to Defense Secretary Donald H. Rumsfeld on March 10, 2006, one Pentagon official recalled,'€ '€ "Rumsfeld told aides that the case promised to be a major problem. He called it - really, really bad -- as bad or worse than Abu Ghraib. '"
Several sources, including Generals Hagee and Conway, have told defense counsel that Secretary of Defense Rumsfeld decided to set up an oversight "body" to keep tabs on the investigations and prosecutions of the Haditha cases.
