is one COA.

A better one would be the advice of Lt. Col. Paul Ware, if it were followed (LINK):

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.
Of course, this was from the Article 32 report; and Wuterich went on to a court-martial anyway.

And, yes (as the Haditha courts-martial prove), ROEs can be asserted as the basis for homicide charges - even such as these:

Positive Identification (PID) is a reasonable certainty that the target you are engaging is exhibiting hostile intent or committing a hostile act.
PID is a reasonable certainty that the proposed target is a legitimate military target.
where the term "reasonable certainty" has no well-defined, fixed legal meaning. It may have a political meaning or a military meaning, which is well-defined; but, if so, I am unaware of it.

The legal uncertainty of all this - especially where political factors heavily underlay the ROEs - is why I suspect courts-martial are not that frequent.

I sounds to me that young Waddell is getting shafted via indirect means.

Regards

Mike