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Thread: Dealing with Haditha

  1. #121
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    Default The common link .....

    between this thread and the thread on the autistic Marine is COL John Ewers.

    COL Ewers, as the investigater of the Haditha cases and also as adviser to GEN Mattis, is mentioned in the NY Times article as a key figure:

    The unlawful command influence ruling determined that a legal adviser for the prosecution should not have had any role in the case. The adviser, Col. John Ewers, had investigated each of the accused Marines and was listed as a prosecution witness.

    His presence at meetings with a general overseeing the Haditha cases and prosecutors created an unacceptable perception of unlawful command influence, the military judge concluded.
    I'd probably use the term "undue command influence", since "unlawful" gives something of a criminal flavor - especially where there was no finding of actual command influence, but rather "an unacceptable perception" of it.

    COL Ewers then went on to become a military judge and ruled against the autistic Marine - see San Diego article:

    Fry's attorney, Michael Studenka of Newport Beach, had urged Judge Col. John Ewers not to put Fry on trial.
    ....
    Ewers did not see it that way.

    “The defense motion to dismiss for lack of ... jurisdiction was denied,” Lt. Col. Sean Gibson, a Marine spokesman at Camp Pendleton, wrote in a statement to The San Diego Union-Tribune.
    What is ironic is lawyer Fidell's statement in the autistic Marine case:

    “This strikes me as a stupid case to prosecute,” said Fidell, a senior partner in the law firm Feldesman Tucker Leifer Fidell. “I think the chief of military justice should intervene to have the case dropped.
    Might I suggest that, in the Haditha cases, it would have been better if everyone had simply allowed the process to run its course without interference - and the same in the San Siego case.

  2. #122
    Council Member IntelTrooper's Avatar
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    Default

    Quote Originally Posted by jmm99 View Post

    Might I suggest that, in the Haditha cases, it would have been better if everyone had simply allowed the process to run its course without interference - and the same in the San Siego case.
    Sounds like Colonel Ewers is out of control.
    "The status quo is not sustainable. All of DoD needs to be placed in a large bag and thoroughly shaken. Bureaucracy and micromanagement kill."
    -- Ken White


    "With a plan this complex, nothing can go wrong." -- Schmedlap

    "We are unlikely to usefully replicate the insights those unencumbered by a military staff college education might actually have." -- William F. Owen

  3. #123
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    Default Oh ?

    from IT
    Sounds like Colonel Ewers is out of control.
    What is your evidence ?

  4. #124
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    Default And after 5 years, it rose again ...

    that is, the "Haditha Event"; and the merits trial of the United States v Wuterich, commencing on 9 Jan with opening statements.

    Not quite 6 years ago, Jon Custis wrote, ... things not often what they seem

    I too have held off on commenting on this situation, but among the folks here, I feel it is important to add something. I've spoken with two Marines who have provided a considerable amount of insight. One is a close friend of one of the relieved company commanders and has talked with him directly, and the other is an officer who was in the AO at the time and has some hands-on with the situation.

    It is an extremely complex one, compounded by things said and done by people pretty far removed from that day's events. We are going to have to wait this one out and see what the final results of the investigation are. From what I am hearing, speculation can't come close to what actually transpired.

    BTW, I also think the Honorable Mr. Murtha was out of his lane. Just my $.02.
    Jon's reasonable advice has proved out over the last 5-1/2 years. Briefly, from Defend Our Marines:

    THE HADITHA CASE IN BRIEF...

    Eight Marines were originally charged. Evidence of a massacre never materialized, and the original reports by the news media, and Congressman John Murtha, have been thoroughly discredited. To date, seven Marines have been cleared.

    Charges were dismissed against five Marines. The sixth was found not guilty on all counts in courts martial. A Board of Inquiry found no misconduct in the LtCol Chessani case. Only SSgt Wuterich remains of the accused.
    I don't predict jury outcomes. Clearly, the defense presented is one of justification - if the evidence breaks as MAJ (ret.) Faraj outlined it:

    by Nathaniel R. Helms | Monday, January 9, 2012 | Day Three: Opening statements

    Camp Pendleton, Calif. – Haytham Faraj, retired Marine major and now civilian defense attorney for SSgt Frank Wuterich, revealed startling new evidence in his opening statements this morning.

    According to Faraj, “30 percent” of the expended cartridges found in what is now called House Number Two were Kalashnikov 7.62mm AK-47 cartridges and a number 9mm pistol rounds that weren’t fired by attacking Marines where eight people died.

    The government ignored it, “ Faraj added incredulously. “Where did this come from, where did the 7.62 come from? Who was in the back bedroom, who shot the 9mm rounds?”
    What Helms reports of the prosecutor Gannon's opening is far from overwhelming evidence to convict - but that is to me, who is not a totally objective reviewer:

    Much of Gannon’s short summation was a rehash of the government’s frequently disabused argument in which rules on a yellow card trump bullets in the conduct of war. According to Gannon, Wuterich failed to follow the Rules of Engagement, he failed to make a positive identification (PID) of the targets he took out, and he disregarded his training when he took a knee and began shooting seconds after one of his Marines was blown in half.
    To me, MAJ Gannon is mixing the "status" metaphor (PID of a member of a force declared hostile) with the "conduct" metaphor (AK bullets flying in a house clearing scenario):



    Please note that L.Cpl. Stephan Tatum (#4 in diagram; initially charged with 2 murders) had all charges dismissed against him.

    As Justice Oliver Wendall Holmes, Jr. (an MOH awardee as a Civil War grunt) noted (in a "conduct" situation): "... the law does not require detached reflection in the presence of an upraised knife."

    See, the brief article by our Bob Wiemann, Undermining Warfighting Doctrine (January 5, 2011), again looking at this case from the standpoint of the leader in the trenches.

    Regards

    Mike

  5. #125
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    Default

    I cannot recall, but were charges dropped outright, or in turn for plea agreements and testimony against Wuterich?

  6. #126
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    Default Hey Jon, not quite either ...

    for Tatum. He was granted use immunity (RCM 704) so he could not refuse to testify - as well as his charges being dismissed. Tatum was a res gestae witness (esp. as to House 2); so, the prosecution would look bad if he were not called upfront.

    Tatum was called yesterday, but Neal Puckett seems to have gotten more from him than the prosecution. You judge:

    Sullivan began his interrogation by asking Tatum to recount the events of November 19, 2005 when an IED hidden in the road destroyed a Humvee in the squad’s four vehicle convoy, killing one Marine and wounding two others. After detailing just how the convoy found itself on Route Chestnut, Sullivan got down to cases. His intention was to prove that Wuterich failed to follow the Rules of Engagement when he ordered Tatum and two other Marines to “clear” two houses suspected of harboring insurgents who were shooting at the decimated squad with small arms. The Chicago reservist was trying to pluck from Tatum evidence that Wuterich had acted in a manner contrary to his training and responsibilities when his Marines stormed two houses that resulted in the deaths of civilians.

    Yesterday Wuterich’s co-counsel Haytham Faraj revealed that 30 percent of the expended cartridges found in the second of two houses cleared in the Marines initial attack were apparently fired by insurgents. His revelation is the first evidence that insurgents had used the houses as strong points, as the Marines believed.

    When asked to explain why he had voluntarily joined Wuterich’s team ordered to “clear South” by platoon leader Lt William Kallop, Tatum told the court “I had served with them for a long time. I proceeded to join the group going toward House 1. The house had been declared hostile. Any individual there was hostile.”

    Much of his testimony was familiar; following closely the statements he voluntarily gave to Army investigator Col. Gregory Watt in February 2006 and pried from him during a 12 to 16 hour interrogation by a Naval Criminal Investigative Service special agent in the bowels of Haditha Dam the following March.

    During cross-examination by Puckett, Tatum repeated several times that he felt neither he nor Wuterich had done anything wrong when they swept through two darkened houses shooting and throwing grenades as they cleared the structures one room at a time. At one point Tatum told Puckett he heard an AK-47 being “racked,” a sound he recognized instantly.

    “Once I heard that AK-47 racking, I wasn’t going in that room to endanger myself or my Marines. At Fallujah we learned we never went into a room without throwing in a grenade.

    “You can barely see anything because of dust and plaster, dust fills the air. You could see targets. Our job was to take out every target,” Tatum testified.

    Earlier Tatum had told Sullivan that he was unable to tell age, gender or sex of the people the counter-attacking Marines encountered inside the almost dark houses.

    During Puckett’s cross examination Tatum told the court the NCIS special agent had forced him to urinate on the floor of the room where he was questioned during his marathon interrogation rather than allow him to use a latrine. The investigation went on so long he could not remember what he had said or whether or not he had actually signed the statement obtained by the NCIS special agent.

    “You spent 12 to 16 hours trying to answer the NCIS the best you could,” Puckett asked toward the end of his examination? Sitting here today you know you did the right thing – don’t you?"

    “Yes sir,” Tatum answered emphatically.

    After telling Puckett about his encounter with the NCIS special agent, the former military judge moved on to what Tatum and the other Marines knew before they left Firm Base Sparta to resupply the isolated outpost. That drew an immediate objection from lead prosecutor Major Nicholas Gannon. The court recessed for about 20 minutes while the attorneys argued whether any classified information was going to be revealed.

    “There is nothing classified that was discussed and if it was it was declassified,” Faraj said with evident anger.

    After overcoming the prosecution’s strenuous objections Puckett was allowed to proceed.

    The “secrets” Gannon was trying to withhold were revealed in 2007 during the long months of pre-trial Article 32 investigations. Tatum acknowledged the night before the convoy his squad had been briefed to expect trouble,. They were warned to watch out for snipers active everywhere in Haditha and the infamous white cars that insurgents were using as Vehicle Borne Improvised Explosive Devices.

    “You were told about that because of certain types of complex attacks involved white cars. You were aware of a number of these incidents, is that right?” Puckett asked. "You had been told Iraqis hid weapons and then pulled them out and fired at you after you though things were clear.”

    “Yes sir,” Tatum responded.
    The prosecution may or may not follow through with the rest of Wuterich's unit.

    Regards

    Mike

  7. #127
    Council Member jcustis's Avatar
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    I see.

    It's interesting to see Maj Gannon working this one. I've worked with him on a number of other matters of Marines and misconduct here at Camp Pendleton. Small Corps.

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    Default Dela Cruz - Weds, 11 Jan

    L.Cpl. Tatum's testimony on Tuesday ended with admission of evidence concerning the Marines having been warned by MI of white cars, VBIEDs, etc. The prosecution turned away (temporarily) from House #2 and began at the start, the IED and the White Sedan that showed up just before the boom took out Vehicle #4 in the Marine convey:



    The Marines took rifle fires from both the North and the South. Wuterich was in Vehicle #3. Sgt. Sanick P. Dela Cruz (then L.Cpl.) was in Vehicle #1.

    Dela Cruz's testimony would have been damning against Wuterich, except that Dela Cruz presented three different versions in pre-trial proceedings (NCIS #1, NCIS #2 and at the Article 32 hearing); and appears not to have improved on that performance at trial. The Article 32 officer, Lt.Col. Paul Ware, found that Dela Cruz was totally without credibility. The Article 32 Report is not totally favorable to Wuterich, as its conclusion leaves open an avenue to a "lesser included offense" conviction:

    Conclusion

    I am recommending that the Government pursue the lesser offense of negligent homicide and not murder because I believe after reviewing all the evidence, no trier of fact can conclude SSgt Wuterich formed the criminal intent to kill. The evidence is contradictory, the forensic analysis is limited and almost all witnesses have an obvious bias or prejudice. The case against SSgt Wuterich that he committed murder is simply not strong enough to prove beyond a reasonable doubt. What the evidence does point to is that SSgt Wuterich failed to exercise due care in his own actions or in supervising his Marines. When a Marine fails to exercise due care in a combat environment resulting in the death of innocents, the charge of negligent homicide, not murder is the appropriate offense. Accordingly I believe the elements and theory of negligent homicide best fits the evidence of what occurred inside House 2.

    Finally, although I believe the Government will fail to prove beyond a reasonable doubt that SSgt Wuterich committed any offenses other than dereliction of duty, due to the serious nature of the charges, I recommend referral to a general court-martial.
    Two other witnesses (besides Tatum and Dela Cruz) with expected material testimony are Cpl. Hector Salinas (Watts Report, NCIS) and L.Cpl. Humberto Mendoza (NCIS) (whose cred is disparaged in the Article 32 Report). The focus will undoubtedly return to House #2, where Lt.Col. Ware found a probable dereliction of duty by Wuterich.

    Regards

    Mike
    Last edited by jmm99; 01-13-2012 at 01:04 AM.

  9. #129
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    Default Thurs & Fri - 12 & 13 Jan

    Thursday was highlighted by Hector Salinas, called by the prosecution. His testimony was somewhat blunt:

    “Rounds were impacting on the fourth vehicle. I went back to render aid to my Marines that were wounded. There was destruction everywhere. There was a fog, a haze. When the smoke was clearing out I could see an object. It was LCpl Crossan. He was missing a couple of fingers. His body armor was obstructing his airway....

    “I got as low as I could because I heard rounds coming. It was the impact of the rounds hitting the high back. I got low on the deck,” he said.
    ...
    “On the outside of the house, on the east side of the house, I saw a small silhouette. Things look small that far away. It was a tall man. There was rounds impacting around me, so I engaged him. I used my M-16. I shot more than twice but not the entire magazine,” he told prosecutor LtCol Sean Sullivan.

    “Then I took my 203 (M-203 40mm grenade launcher attached underneath his rifle) and fired rounds on the house – fired two or three."
    ...
    Salinas was the 1st Fire Team leader, a sergeant-in-waiting, champing at the bit to take over the squad as soon as SSgt Frank D. Wuterich took over 3rd Platoon Sergeant. That’s a big deal in the Marine Corps. Salinas proudly told the court he was the patrol leader and convoy commander when the 12-man squad was ambushed by hidden insurgents that triggered and IED that has just reduced its numbers by three. He said he didn’t remember Wuterich giving an order the entire day.

    While tending the wounded until the Quick Reaction Force arrived Salinas noticed that Wuterich and two other Marines were heading south, where Salinas had seen a silhouette at the same time bullets splattered into the armor of the wrecked Humvee that he pulled his friends from. He chased after them by a different route, he said. He was the first Marine in the door, he said, the first guy to throw a grenade, the first guy to see the product of his handiwork.

    “There were women and children in the house,” Sullivan exclaimed. Six people died in House One.

    “But I didn’t know that,” Salinas responded, “and I wasn’t going inside that room without throwing in a grenade.“

    Afterwards he stayed behind inside the back door while the others cleared House Two where eight more innocents died.

    “I had my back to the house providing security inside the hallway,” Salinas testified.

    “What did you see when you exited the house?” Sullivan inquired.

    “The back of the house,” Salinas replied. It went that way all day.

    Several dozen fruitless questions later Sullivan asked Salinas what he would do different if he could.

    “I would have called in an airstrike,” Salinas replied.
    And, if he (or Wuterich) had called in airstrikes on Houses One and Two, would they have been charged ? Do we have a different standard (de facto, not de jure) for airstrikes on "hostile houses" versus riflemen clearing "hostile houses" ?

    William Kallop, then Wuterich's Platoon Commander, testified on Friday. He was on scene when Houses One and Two were cleared, but was not an eyewitness to what did or did not occur inside the houses. His testimony on direct by the prosecution was straight-forward:

    As usual, testimony began with a reiteration of what happened on November 19, 2005 after a remotely detonated IED broke the calm the Marines had enjoyed for a brief period at the end of Operation Rivergate, a regimental sized operation to wrest control of Haditha from the burgeoning insurgency. Kallop was at Firm Base Sparta about two kilometers away when he heard the roadside bomb erupt and the radio come to life with calls for a medivac and reinforcements.

    He told the eight member panel that intelligence reports rolling in prior to the ambush indicated that the al Qaeda-led insurgency was regrouping around Haditha to try and reestablish control of the embattled region.

    “There was fire around the city at this time. One time Iraqi soldiers fired and told us they saw insurgents running. One of our Marines had shot an individual running,” Kallop told prosecutor Maj. Nicholas Gannon.

    Kallop said he believed the ambush was the beginning of the long anticipated counterattack by insurgents who had infiltrated into the city since being driven out during Operation Rivergate the previous October.

    When he arrived at the ambush site on Route Chestnut on the southern edge of the city, Wuterich gave him a brief report. After making sure the squad leader of the Quick Reaction Force began evacuating the two wounded Marines still lying on the road, he gave Wuterich the order to “clear South” to suppress incoming fire the ambushed Marines had observed coming from what later became known as House 1 and 2--where 14 Iraqis would die.
    On cross by the defense, he added some personal observations:

    “Did you have any reason to doubt the veracity of the report Sgt. Wuterich was giving you?” Faraj asked.

    “No, sir,” Kallop responded.

    “If you are taking fire from a structure in your opinion would you try and suppress it,” Faraj continued during his cross examination. “Would you try and identify combatants and non-combatants by risking your life?

    “No.“
    ...
    Kallop thought the inquiry was over after US Army Col. Gregory A. Watt conducted his AR-15-7 “Informal Investigation” that concluded in late February. An Army JAG lawyer who accompanied Watt told the Marines to relax, so neither Kallop nor any of the other men involved sought legal counsel, he said.

    In March, while Kallop was helping 3/3 Marines move into the battalion’s area of operations to relieve 3/1, Kallop learned his men were being investigated by the Naval Criminal Investigation Service, he said.

    “I was quite angry when I returned to Haditha Dam and found out my Marines were being investigated. I went back to Haditha Dam to discover the NCIS had treated my Marines terribly. I found out they had been interrogated, treated like criminals, questioned in the holding cell where we held suspected insurgents. “

    “I believe then and I believe now my Marines followed the Rules of Engagement. I believe it was a tough situation and my Marines handled themselves the best they could.”
    The trial will resume next Tuesday.

    Regards

    Mike

  10. #130
    Council Member davidbfpo's Avatar
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    Default Moderator at work

    I found several other threads clearly concerned with this case and have merged them into this main thread.
    davidbfpo

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    Default The ROE

    David: your extra work induced me to re-read the thread, where I came upon this 2006 post, Rules of engagement:

    Is it possible for someone to post the actual Rules of Engagement for the Marines in Haditha so that we can compare them to the sergeant's description of his and the other Marines' actions? I continue to believe that the real question of fact for any ajudication of this matter is at what point should the troops have recognized that they were not dealing with an enemy camouflaged as a civilian?
    Yes, it is possible. Leaving aside commentary, the ROE is laconic [Bargewell Report, 15 June 2006 (Final), p.77 pdf - Unclassified]:

    fn 333. Enclosure (130): 2nd Marine Division ROE Card.

    Positive Identification (PID) is a reasonable certainty that the target you are engaging is exhibiting hostile intent or committing a hostile act. Once you have PID, you may use escalated force, up to and including deadly force, to eliminate the threat.
    Now, I know what "certainty" is - 100%. I also know what a "probability" is - more likely than not (aka 50 yards + a nose; aka "probable cause").

    But a "reasonable certainty" ? Does that require more or less "certainty" than a plain-old certainty ? Is a "reasonable certainty" more certain or less certain than an "unreasonable certainty" ?

    I'm not asking these questions from the standpoint of some arcane legalism or philosophical construct. I'm asking whether the phrase "reasonable certainty" makes any sense in the English language.

    Now, my objection here is not that the ROE is too "restrictive" or too "lenient"; but that in our language it has no meaning. For example, if one were concerned about maximum protection for civilians, one would say PID is the certainty that the target you are engaging is exhibiting hostile intent or committing a hostile act.

    Or, if one wished more discretion in the shooter, one would say PID is the probability (more likely than not) that the target you are engaging is exhibiting hostile intent or committing a hostile act. Each of these formulations passes English 101 - and then one can argue about the policy it expresses.

    I'm well aware of the background of the CENTCOM PID and its "reasonable certainty" test (not in the JCS SROEs, BTW). Attached is the pdf snip from the CLAMO Lessons Learned on the Astan and Iraq ROEs, which were developed by CENTCOM's operations and JA staffs.

    Pertinent to this discussion is what was said in the Article 32 investigation - comments by Lt.Col. Paul Ware:

    The Government counsel argued that positive identification of occupants of the room was required under the rules of engagement. Such a theory, requiring positive identification before engaging targets inside House 1 is clearly contrary to the training and experiences of the Marines in Third Battalion, First Marines.

    I am reminded of what I learned from the very first day at The Basic School. “We train as we fight.” It is more than a simple motto to encourage full effort in field and classroom instructions. It is indoctrinating our Marines into a way of thinking, acting and most importantly, responding under the stress and crisis of combat. It is believed that through practice, mental and physical memory can work through the chaos of the event and allow Marines to respond quickly and appropriately to an otherwise overwhelming event.

    Capt Capers, a trainer of SASO tactics in MCAGCC, 29 Palms, CA, testified that training Marines for SASO consists of many practical application scenarios. There are no correct answers to the problems posed, but the intent of the training is to demonstrate and provide Marines situations to develop that mental and physical memory of how to respond. An enemy combatant firing from a crowded market place, or a person aggressively approaching a checkpoint are examples of the type of situations that are presented. When a Marine makes a decision to use deadly force causing collateral damage, the scenario is stopped and discussion about the choice, why it was made and how to employ a better approach reducing collateral damage is explained. This training is important, relevant and ongoing. However, while the Government argues that the conduct of SSgt Wuterich violated the ROE, SSgt Wuterich, and through sworn statements and depositions, his fellow Marines, were trained in preparation of MOUT operations, the ROE are not applied in the same manner.

    Numerous witnesses to include Capt McConnell (Company Commander), Capt Dinsmore (Intel officer), 1stLt Kallop (Platoon Commander), SSgt Fields (Platoon Sergeant), fellow squad members LCpl Tatum, LCpl Sharratt, LCpl Mendoza, Sgt Salinas, LCpl Rodriguez and Mr. Graviss provided sworn statements that in a MOUT assault, you throw a grenade into a room and assault into the room with gunfire. Almost to a Marine, the understanding is that once a house is declared hostile no further positive identification is necessary to lead an assault with grenade and gunfire. Each of these Marines state in various ways that once a house is declared hostile you can “blow it up”, “lead with grenades and gunfire” or call in indirect fire to destroy the structure. Capt Capers and Capt Navin testified that in applying the ROE, you can never declare a house as hostile and indiscriminately use deadly force against the occupants.

    Capt Capers and Capt Navin are not in SSgt Wuterich’s chain of command and do not know the training SSgt Wuterich received in regard to tactics for clearing a house in a MOUT assault. The Government presented no evidence of any practical exercise, discussion, lecture, power point slide, field operation or tactical war game where the accused was placed in a simulated combat environment and was required to distinguish legitimate targets from innocents within a room. The SASO training described by Capt Capers was not a troops in contact situation. The Government does have training for close quarters with the focus on using limited force to preserve innocent lives but that training was not provided to SSgt Wuterich or Marines from his Battalion.

    Time and again I read statements of Marines saying they didn’t or wouldn’t use additional positive identification in a troops in contact, MOUT assault or declared hostile house situation. The term “hostile house” does not exist in Capt Navin’s presentation, however clearly it exists in the minds of the Marines who are expected to be facing the enemy at the tip of the spear.

    Capt McConnell, 1stLt Kallop and SSgt Fields were all in SSgt Wuterich’s direct chain of command. All the other statements are from Marines in the same Battalion. Clearly this unit’s training and leadership either received different training, or came up with its own form of MOUT tactics for clearing a house. The almost universal statements of these witnesses that a house can be declared hostile and you can lead with grenades and gunfire without further positive identification demonstrates this was widely believed throughout all levels of the Company, and most likely the Battalion. It is within the context that SSgt Wuterich and his Marines received training that conflicted with the ROE that the actions he and his Marines made on 19 November 2005 must be analyzed.
    Regards

    Mike

    For "Relationships Between New and Standing ROE Terms: Positive Identification (PID), Hostile Act and Hostile Intent, Declared Hostile Forces, and Likely and Identifiable Threat (LIT)", see pp.17-23 attached pdf.

    For "Relationship of Self-Defense and Tactical-Level Fires to Rules of Engagement and Fire Support Control Measures", see pp.23-27 attached pdf.
    Attached Files Attached Files

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    Default Added thoughts ...

    by a couple of Marine lawyers (re: "LIT"; but generally applicable to non-JCS terms added to the JCS SROEs by serials - and thereafter considered "SROEs") [p.21 of attached pdf in prior post]:

    The following is a representative example of concerns shared by Army and Marine Corps tactical level OEF JAs.

    The single largest concern of the initial OEF ROE was the language concerning Taliban and Al Qaeda fighters. Instead of declaring these personnel hostile in simple terms that Marines have trained to . . . , the terms “likely or [sic] identifiable” were added. . . . All the subordinate commands in [Navy Central Command] immediately pressed for clarification from CentCom since the terms likely and identifiable are not used together in the CJCS SROE. . . . The SROE terms and concepts that we trained [to] were relatively well received and more importantly universally understood. I do not know why the CJCS was not followed on this critical aspect of the ROE.
    . . . .
    When lawyers can easily argue about what [LIT] means or doesn’t mean as far as engaging targets, we have failed because the 21-year-old Corporal doesn’t have the luxury of such an academic exercise. [77]
    77 15th MEU(SOC) OEF AAR, supra note 38, at 2-3.
    and:

    Another Marine after action report made similar comments.

    Upon 26th MEU( SOC)’s arrival in the 5th Fleet AOR, I immediately began requesting guidance and clarification on the intent and meaning of this new concept, “likely and identifiable threat.”

    My concerns were primarily that “likely and identifiable threat” was introducing an unfamiliar concept to our Marines immediately before the commencement of combat operations. I had trained our Marines on the concepts of hostile act, hostile intent and declared hostile, as well as
    other U.S. Standing ROE concepts, and was certain as to their ability to implement them in any context; however, on its face, “likely and identifiable threat” appeared to beg further elaboration and clarification.
    ...
    ... If judge advocates and commanders have relative difficulty in defining ROE terms, it goes without saying that the Marines charged with implementing the ROE will likely have similar difficulties.
    26th MEU(SOC) OEF AAR, supra note 65, at 2-3.
    By this point in this presentation, you should be able to conclude where my NOT unbiased "guns"[*] are pointing.

    [*]

    This is my weapon;
    This is my gun;
    This is for ....ing;
    This is for fun
    Hmm... screwed that one up again (or did I ?). The difference between weapons and guns (as in naval gun fire at Hungnam); but, that wasn't "fun", was it ? So, there is a difference between "weapons" and "guns"; and between "....ing" and "fun". Thus, change to: "... my NOT unbiased "weapons" are pointing ..."

    Oh well, "Hearts and Minds !"

    And, becoming even more serious, in MG Bargewell's words:

    4. (U) Question Four: Did the command climate within 3d Battalion, 1st Marines encourage disciplined application of the ROE and LOAC?

    a. (U) Findings. I determined that the comments made by the leadership to the investigating officers, from the Commanding General MNF-W down the chain of command, through the 3d Platoon Commander, reflect a mindset and philosophy that are incompatible with a counter-insurgency (COIN) environment...
    So, yup, "Hearts and Minds" - and if that didn't get to you - the courts-martial will.

    Regards

    Mike

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    Default Weekend Updates - What ROE Card Do You Hold ?

    Here are two weekend updates on the Court-Martial (both pro-defense):

    DEFEND OUR MARINES
    THE TRIAL OF SSGT. WUTERICH:
    WEEK ONE REPORT
    OF NUMBERS AND ROE
    by Nathaniel R. Helms, Sunday, January 15, 2012.

    which, among quite a bit else, presents us with an ROE Card - side 1:

    ROE CARD 01.jpg

    and side 2:

    ROE CARD 02.jpg

    and the other commentary, Week one ‘Haditha’ Marine trial analysis Part I: An ambush on Route Chestnut and the white car, which repeats the same ROE Card:

    The ambiguous Rules of Engagement card carried by our Marines that day included these requirements: “Do not fire into civilian populated areas or buildings unless the enemy is using them for military purposes or if necessary for your self-defense. Minimize collateral damage.” Near its end, it correctly defined the mission: “Attack enemy forces and military targets. Spare civilians and civilian property, if possible.”
    Now, the key and material wording in THIS Card (with respect to Haditha) is:

    PID is a reasonable certainty that the proposed target is a legitimate military target.
    THIS ROE Card is a CFLCC product - The Coalition Forces Land Component Command, which was composed of these "coalition" forces:

    I Marine Expeditionary Force
    2nd MEB
    1st Marine Division
    RCT-1
    RCT-5
    RCT-7
    3rd Marine Aircraft Wing
    1st Marine Logistics Group

    U.S. V Corps
    British 1st Armoured Division
    3rd Infantry Division
    1st Brigade, 3rd ID
    2nd Brigade, 3rd ID
    3rd Brigade, 3rd ID
    101st Airborne Division (Air Assault) – later became Multinational Division North
    1st Brigade, 101st Airborne
    2nd Brigade, 101st Airborne
    3rd Brigade, 101st Airborne
    173rd Airborne Brigade
    2nd Brigade, 82nd Airborne Division

    From March until June 2003, CFLCC was joined by 1st Armored Division, 4th Infantry Division, and 2nd and 3rd Armoured Cavalry Regiments. 3rd Armored Cavalry Regiment formed Task Force Rifles to control the Al-Anbar area during its tour in Iraq which ended in September 2003.

    CFLCC was replaced by Combined Joint Task Force 7 on 14 June 2003.
    Now I know this was basically a "Coalition of the Willing" piece of bullcrap (though I'll always accept the Brits upfront with the USMC; perhaps as "foreign fighters", David ).

    However, is a "Coalition ROE Card" that says this:

    PID is a reasonable certainty that the proposed target is a legitimate military target.
    actually "reasonable" for the infantrymen engaging "immediate" shooters; and then "imminent" shooters, becoming less "imminent" as they retreat and merge within the "civilian population" ?

    Marc Lagrange and I could have a conversation for hours about WTF is meant by "reasonable certainty" and by "a legitimate military target" (esp. in light of "direct participation" in the ICRC and non-ICRC senses). Unless I am unaware, the French Marines and Legion (or any other armed force of lesser priority) have not come up with any better a solution than our Marines and SOF. That is, a solution that can be accepted as being "beyond a reasonable doubt "; and, if applied "beyond a reasonable doubt " placing SSgt. Wuterich in Portsmouth for X years.

    -------------

    BUT WAIT - That AIN'T the ROE Card that applies (yup, CFLCC died in 2003 - though CENTCOM continued - sans a CENTCOM replacement card, apparently !).

    When I read the references above (OF NUMBERS AND ROE) and Week one ‘Haditha’ Marine trial analysis Part I: An ambush on Route Chestnut and the white car), I said "whoa JMM; art Thou an idiot of some degree ?" Simply "cuz", the ROE Card I cited (in my prior posts) is different from what "Defend Our Marines" is citing as being the testimony in the case.

    NO, JMM, Thou ain't no idiot.

    From above (prior posts), the APPLICABLE ROE Card (which I cited and with which I'll stick) gets down to more specifics (e.g., "hostile fire") - according to MG Bargewell from Bargewell Report, 15 June 2006 (Final), p.77 pdf - Unclassified:

    fn 333. Enclosure (130): 2nd Marine Division ROE Card.

    Positive Identification (PID) is a reasonable certainty that the target you are engaging is exhibiting hostile intent or committing a hostile act. Once you have PID, you may use escalated force, up to and including deadly force, to eliminate the threat.
    The key is Enclosure 130, which is the 2nd Mar. Div. ROE (not the CFLCC ROE). I don't like it that well (see my prior posts); but it's better than CFLCC.

    MG Bargewell and I will disagree as to how far we should "slant" our ROEs from a conventional to a non-conventional situation. Though, in short, both of us have a right to our own policies.

    THAT BEING SAID, I'll surely accept his facts (not necessarily his opinions) as found.

    Two .pdf snips are attached (at end). See in 2nd snip, the Mendoza testimony (close to word for word from the 2nd Mar. Div. Card):

    Can define PID/understood ROE: "The rules of engagement is positive identification is required prior to engagement. PID is a reasonable certainty th at the target you are engaging is exhibiting hostile intent or committing a hostile act. Once you have PID you may use escalated force up to and including deadly force to eliminate the threat."
    The BLUF (here in back ) is that we seem to have three ROE rules for S.Sgt. Wuterich to have followed:

    1. CFLCC;

    2. 2nd Mar.Div. ROE

    3. MUOT (Polarbear1605, if around; you have a much superior grasp of MUOT applicable here - as also Jon Custis)
    I see a "reasonable doubt" as to criminal conduct - not a surprise.

    Regards

    Mike
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    Default Al Jazeera On Haditha Case


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    Default Tue 17 Jan

    The testimony of Edward T. Sax (ret. 3/1 Sgt.Maj.) emphasized MOUT tactics over either of the two possible ROE cards:

    Sax, considered by both the officers and man of the Thundering Third to be a Marine’s Marine, told the panel of officers and senior non-commissioned officers that Wuterich’s decimated squad did it right when they blasted through two civilian houses where 14 Iraqi civilians died after being ambushed at Haditha more than six years ago.

    Initially, chief prosecutor Maj. Nicholas Gannon compelled Sax to explain the vast differences between the vicious, no-holds barred month long battle at Fallujah in 2004 and the situation in Haditha almost a year later.

    “What we did at Fallujah was something we never did again. There they are… go kill them,” he said. “Haditha was not Fallujah. Those conversations got emphasized before we got sent to regain control of Haditha. This was not going to be Fallujah. We are not pounding them down with artillery.”

    “If I haven’t received fire I am not going to use hand grenades. We’d clear in a little different way. Taking fire from a structure in part dictates how you are going to clear that structure.”

    “If I thought I received fire I am now going to use hand grenades,” Sax told Maj. Gannon, who then asked him what was the correct procedure for clearing a house where civilians might be hiding after receiving fire.

    “I’m going to frag the room before I go in it. It was taught right at MOUT training. If I’m receiving fire, I’ve got to assume the house is hostile… if I send Marines in there they are going to get shot.”

    Later in his testimony, Sax got down to cases when talking about what happened on November 19, 2005 when one Kilo, 3/1 Marine was killed and two more seriously wounded by a remotely detonated roadside bomb that signaled the attack on a stunned squad of riflemen trying to take cover on a hard surfaced road that didn’t offer any.

    “On November 19, Haditha was more like Fallujah?” Faraj asked during his cross-examination.

    “Yes, I think it was,” Sax replied.

    Sax said Haditha was considered hostile when 3/1 was sent there to wrest control of the region from the Al Qaeda-led insurgency following the thrashing the insurgents had given to a reserve battalion of Marines during its deployment. The difference was the insurgents were smaller in number and far less aggressive – being non-kinetic in Marine Corps jargon.
    Regards

    Mike

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    Default Weds 18 Jan - Recess & Plea Deal ?

    Humberto Mendoza's testimony was not completed:

    The General Court Martial of SSgt Frank D. Wuterich was recessed unexpectedly without explanation in the middle of the cross-examination of squad member Humberto Mendoza.

    Mendoza was expected to testify he heard Wuterich order his ad hoc fire team to mount an unlawful assault on two houses that held civilians.

    During his examination by government prosecutor Lt Col Sean Sullivan, however, Mendoza testified he never heard Wuterich give any orders to assault the houses where 14 civilians were killed.
    And so, a possible deal:

    Camp Pendleton, Calif. – Defend Our Marines has learned there is a possible deal in the works to end arguably the most divisive court-martial in Marine Corps history. Sources have confirmed that defense counsel Neal Puckett and and lead prosecutor Maj. Nicholas Gannon have entered into "conversations" to have the case resolved. The military judge, Lt Col David Jones, told the lawyers Wednesday afternoon after unexpectedly recessing the trial that he would be available for "consultation" until 0800 tomorrow morning when court is scheduled to resume.

    A source close to the trial said a lack of money on the defense side, a lack of evidence on the prosecution side, and the likelihood that the eight-member panel will find SSgt Frank Wuterich not guilty of voluntary manslaughter and related charges have all combined to bring the case to a possible conclusion.
    Wouldn't doubt it; but what kind of deal (some form of "dereliction of duty") ?

    Regards

    Mike

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    Default Hobson & Choices

    Frank Wuterich has to make a decision by tomorrow morning - take a deal (the gist of which we don't know) or roll the dice.

    SSgt Wuterich's Choice (Defend Our Marines; Helms, 19 Jan 2012):

    Camp Pendleton, Calif. -- Defend Our Marines has learned there is a deal on the table inside a Camp Pendleton courtroom where SSgt Frank D Wuterich now balances choices that will determine the rest of life. The 31-year-old father of three can bite the proverbial bullet and ask for administrative separation, or he can dig in his heels and fight for the principles he has already proved he is willing to die for.
    ...
    Within his own defense team, lead attorney Neal Puckett, a retired military judge, and co-counsel Haytham Faraj, a retired Marine lawyer, reportedly seem to be at odds over exactly what to do. Puckett is prepared to cash in his client’s chips, cut his losses so to speak, so Wuterich can go home to his three little girls. Proponents of “what is best for the client must always prevail” say that is hard to dispute. There is much to be gained from this approach.

    Faraj, a tactically brilliant attorney who has shredded the government’s case thus far, reportedly wants Wuterich to stick it out to the end. Faraj is a go-for-the-throat fighting Marine who has literally captured the government’s witnesses and turned them into his own. The benefits of this approach are far less tangible although no less important. Faraj knows Wuterich is innocent. Implicit is his position however is the honor of the Corps. Even the crustiest Marine knows absolute absolution is the only way the institution they proudly serve can remove the virulent stain of the debacle at Haditha.
    ...
    (and more speculation in the article)
    Marine in Haditha killings trial has to decide: Fight or take a deal (LA Times, 19 Jan 2012):

    ...
    Three other Marines, given immunity to testify against Wuterich, underwent withering cross-examination about their changing accounts of what happened in Haditha. “Are you telling the truth today?” defense attorney Haytham Faraj demanded of a Marine sergeant.

    After hearing Faraj's cross-examination Wednesday of one such witness, the judge, Lt. Col. David Jones, abruptly recessed the trial and told the opposing attorneys to "look for options." Negotiations continued Thursday.

    It’s not unusual when a trial ends in an agreement for the defendant to admit to a solo charge, a kind of face-saving for prosecutors who, having spent years and considerable resources, suddenly decide to call it quits.

    In the Wuterich case, that could include an admission of responsibility for not having been more careful in what he told Marines as they prepared to “clear” houses -- for having told them to “shoot first, ask questions later.”
    ...
    About a century ago, I had a manslaughter trial. When it was going not quite the way the prosecutor wanted, my client was offered a misdemeanor with no time. He rejected the offer. The jury took a couple of hours to come back with a Not Guilty. A lawyer can't guarantee that result; or, as far as I'm concerned, push his client one way or the other.

    Regards

    Mike

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    Default The trial will continue

    From Helms (Defend Our Marines):

    Camp Pendleton, Calif. -- The decision is in. Marine Corps Staff Sergeant Frank D. Wuterich is back on trial this morning to face charges of voluntary manslaughter, aggravated assault and dereliction of duty for his role in the deaths of 14 Iraqi civilians who died at Haditha, Iraq in late 2005. If convicted he could face the rest of his life in prison.

    The 31-year-old father of three young girls was on the verge of submitting a request for administrative separation from the Marine Corps when he suddenly changed his mind. Compelled by the certainty of his own innocence and a deeply ingrained sense of duty he asked his defense team to end negotiations that have been going on for most of two days......
    Regards

    Mike

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    Default Plea is reached - One count of Dereliction of Duty

    http://www.nctimes.com/news/local/mi...bd9fd2778.html

    IMO, while he made mistakes, they were stuck under a ROE and other factors that were designed for the wrong war they were fighting. If it wasn't them it would have been someone else.

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    Default Negigent Dereliction of Duty

    Under Article 92 (comments at MCM IV-24):

    (c) Derelict. A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person’s duties or
    when that person performs them in a culpably inefficient manner. “Willfully” means intentionally. It refers to the doing of an act knowingly and purposely,
    specifically intending the natural and probable consequences of the act. “Negligently” means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances. “Culpable inefficiency” is inefficiency for which there is no reasonable or just excuse.
    From Defend Our Marines:

    Camp Pendleton, Calif. – The General Court Martial of US Marine Corps SSgt Frank D. Wuterich ended Monday morning after a plea deal was reached over the weekend. In return for a guilty plea to one count of Negligent Dereliction of Duty, the six-year ordeal of the 31-year old father of three is finally over.

    Negligent dereliction is a lesser included offense detailed in Article 92 of the Uniform Code of Military Justice, Dereliction of Duty. Before the agreement, SSgt Wuterich was charged with “Willful Dereliction of Duty,” a much more severe offense. In return for his plea, 13 charges, including nine counts of Voluntary Manslaughter, two counts of Aggravated Assault, and two other charges of willful dereliction were dropped.
    ..
    The maximum sentence military judge LtCol David Jones can now impose on SSgt Wuterich is three months confinement and loss of two -thirds of his pay while he is confined. The staff sergeant told the judge he earns $3,486 a month. At risk if he is incarcerated are his three little girls, who are otherwise without a resident parent.

    SSgt Wuterich admitted he failed to maintain "adequate tactical control" of three Marines he was leading and made a "negligent verbal order." While answering the military judge’s questions before the deal was done, SSgt Wuterich said comments he made to troops he was leading were negligent and may have led to the "tragic" deaths of the women and children.

    "I took a team of Marines to clear houses to the south of the site [where House 1 and House 2 are situated] and did use the words 'shoot first, ask questions later,' or something to that affect prior to clearing or entering there," he said. ...
    This result was predicted by Lt.Col. Paul Ware in his Article 32 Report:

    Conclusion

    I am recommending that the Government pursue the lesser offense of negligent homicide and not murder because I believe after reviewing all the evidence, no trier of fact can conclude SSgt Wuterich formed the criminal intent to kill. The evidence is contradictory, the forensic analysis is limited and almost all witnesses have an obvious bias or prejudice. The case against SSgt Wuterich that he committed murder is simply not strong enough to prove beyond a reasonable doubt. What the evidence does point to is that SSgt Wuterich failed to exercise due care in his own actions or in supervising his Marines. When a Marine fails to exercise due care in a combat environment resulting in the death of innocents, the charge of negligent homicide, not murder is the appropriate offense. Accordingly I believe the elements and theory of negligent homicide best fits the evidence of what occurred inside House 2.

    Finally, although I believe the Government will fail to prove beyond a reasonable doubt that SSgt Wuterich committed any offenses other than dereliction of duty, due to the serious nature of the charges, I recommend referral to a general court-martial.
    But, we still have an ROE legalism expressed in terms of requiring combatants to make decisions based on a "certainty". Who is going to fix that ?

    Regards

    Mike

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