Top 10 military justice stories of 2008 -- #1: The legal aftermath of the Haditha incident

From the start of 2008 to its finish, the legal aftermath of the Haditha incident continued to make news. It presents some of the most fundamental questions that a military justice system can face about the possible criminalization of acts taken during combat operations. Due to the provocative issues it presents, its high profile, and the influence that it has already had and will continue to have on the development of military jurisprudence, the legal aftermath of Haditha is the #1 military justice story of 2008.

On 19 November 2005, Iraqi insurgents detonated an IED in Haditha, killing one Marine and wounding others. (I've seen conflicting accounts of the number of wounded Marines, though most accounts seem to say two.) During the combat operations immediately following the explosion, 24 Iraqi noncombatants were reportedly killed.

Apparently an official report was made soon after the incident that 15 Iraqi civilians had been killed in the IED explosion and when caught in the crossfire between Marines and insurgents during a firefight after the explosion. But a subsequent military investigation cast doubts on that official explanation and in March 2006, NCIS began an investigation of the incident.

While capital charges were once considered a serious possibility, on 21 December 2006, non-capital offenses were preferred against eight Marines arising from either their actions at Haditha or their handling of the incident's aftermath. Charges against four Marines were eventually dismissed, including those against LCpl Justin Sharratt, which were dropped by LtGen Mattis's now-famous letter clearing him of misconduct.

As 2008 began it appeared that four Marines would be prosecuted for their actions at Haditha and/or during the incident's aftermath.

In March of 2008, just as the court-martial of LCpl Stephen B. Tatum was scheduled to begin at Camp Pendleton, the government dismissed its charges against him.

4 June 2008 saw the first actual verdict in a Haditha case when a panel of Marine Corps officers found 1st Lt. Andrew Grayson not guilty of all charges and specs, which included two specs of making false statements during the investigation into the incident and two specs of attempting to fraudulently separate from the Marine Corps.

Meanwhile, more than three years after the incident and more than two years after charges were preferred, the remaining two cases are stalled.

In March 2008, court-martial proceedings began against SSgt Frank Wuterich. But the proceedings were quickly derailed when Judge Jeffrey Meeks quashed a subpoena that the U.S. had issued to CBS News for outtakes of an interview that SSgt Wuterich had recorded with 60 Minutes correspondent Scott Pelley. The government appealed that ruling, leading to a published NMCCA decision holding that it had jurisdiction to consider the quashing of a subpoena in an Article 62 appeal and reversing the trial judge's quashing of the subpoena without having first conducted an in camera review of the outtakes. United States v. Wuterich, 66 M.J. 685 (N-M. Ct. Crim. App. 2008). CAAF subsequently heard an appeal and, in its latest divided ruling expansively interpreting military appellate courts' jurisdiction, agreed with the Navy-Marine Corps Court, though CAAF vacated NMCCA's opinion because NMCCA had erroneously held (on its own initiative rather than in response to a government motion) that SSgt Wuterich had no standing to participate in the Article 62 appeal of a ruling in his own court-martial. United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008). [DISCLAIMER: I was one of SSgt Wuterich's appellate defense counsel in his CAAF proceedings.] But even these rulings promise only more delay. The military appellate courts didn't definitively resolve whether the United States could actually have the CBS outtakes. Rather, they ordered the military judge to conduct further review before deciding whether the outtakes had to be turned over. And they reserved judgment on whether CBS could rely on a newsgatherer privilege to prevent the outtakes' turnover even if they turn out to be relevant and non-duplicative of the portions of the interview that aired. So, even setting aside the possibility that the Supremes could overturn CAAF's decision, the Wuterich case is nowhere near resolved.

Neither is the Chessani case. The final Marine charged as a result of the Haditha incident is LtCol Jeffrey R. Chessani, who was the commanding officer of 3d Battalion, 1st Marine Regiment. He was charged with violating a lawful order and two specs of dereliction of duty. On 10 June 2008, NMCCA denied a defense petition for extraordinary relief in the case, ruling that a discovery dispute wasn't an appropriate subject for an interlocutory writ. United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008). Then, a week later, Judge Steven Folsom dismissed the charges against LtCol Chessani without prejudice due to the appearance of unlawful command influence. If the government had accepted the ruling, it could have repreferred, rereferred, and actually tried the charges long before now. But instead, the Government filed an Article 62 appeal, which remains pending before NMCCA. The case was orally argued on 17 October. But as of today -- 78 days after that argument and 200 days after Judge Folsom's ruling -- that appeal is still unresolved. And no matter which way NMCCA rules, the case is likely nowhere near finished. If the government wins a reversal and if that ruling isn't overturned by a superior court, then the case can proceed on the original charges. But even if the government ultimately loses its appeal, it can still proceed with the case by bringing new charges.

So the legal aftermath of Haditha will continue to roil the military justice waters well into 2009 and probably beyond. What to make of all this will vary widely with the perspective of the individuals viewing the military justice system. Some will see the system working. Others will see the military cynically (and inefficiently) selecting sacrificial lambs to appease its critics. Still others will see the nearly opposite image of a military justice system cynically protecting its own. But such divergent views are one of the reasons why the legal aftermath of Haditha is so significant: it offers a kind of Rorschach test to assess its viewers' attitudes toward military justice. And individual viewers' impression of that Rorschach test may say more about their preconceived notions of the system than about what is being viewed.