JURIST Guest Columnist Nathaniel R. Helms, author of No Time for Truth: The Marines, Justice, and the Haditha Incident, discusses the Haditha Incident and the military justice system …

Kenneth Englade recently offered his interpretation of the so-called Haditha Massacre, an unfortunate label applied to a far more reprehensible event that ultimately left eight US Marines standing before the bar of military justice. His final product is as underwhelming as it is skewed.

As reported, the incident at Haditha began with an Iraqi insurgent ambush against a squad of 12 US Marines in Haditha, Iraq. The ancient Sunni Muslim city lies in the restive al Anbar Province in western Iraq. The ambush on November 19, 2005 erupted a few months shy of the third anniversary of the American invasion there. The ambush triggered a day-long battle that ultimately left one Marine dead, 11 gravely wounded, as well as three dozen Iraqi combatants and defenseless civilians dead, including several children who were wounded and orphaned. All were killed or injured by well-aimed Marine Corps rockets, bombs and infantrymen armed with the deadliest personal weapons money can buy. The US spent billions of dollars training and equipping these men to be relentless killers. Ultimately, America got what it paid for.

Sadly, by November 19, 2005, the celebrated American-fueled “drive up to Baghdad” to seize ethereal weapons of mass destruction and destroy an odious dictatorship was long forgotten. The passive occupation had morphed into thirty-two months of burgeoning internecine violence. Death was everywhere, and Iraq was a smoking hole. Then, suddenly, crushing big-unit slap downs were out and Iraqi-friendly counter-insurgency tactics were in. When the ambush and subsequent horror were revealed, “shock and awe” had indeed been replaced by shock and “uh-oh.” Unfortunately, somebody forgot to tell the Marines. World opinion—never supportive—turned particularly sour after a sensationalized report in a US magazine alleged the ambushed Marines had intentionally slaughtered the defenseless civilians in a rampage of retribution. The grave crimes were allegedly compounded by sympathetic officers who aided and abetted the enlisted mens’ attempts to evade justice by a variety of means.

Ostensibly in place to curb excessive battlefield violence were several layers of international and American laws aimed at ensuring a so-called clean war—an oxymoron if there ever were one. Arcane and unenforceable, they in part mandated legal prohibitions aimed at diminishing deaths of noncombatants. Arguably the most definitive and least enforceable of these presumptive mandates were (and remain) the illusory “customary laws” of battlefield decency and current international laws of war, promulgated by the Hague Conventions of 1889 and 1907, the Geneva Conventions of 1949 and the Nuremberg Conventions, adopted by the UN on December 11, 1945. Collectively these prohibitions are known informally in American military legal ranks as the Laws of Land Warfare. The purpose of them is to protect the innocent victims of war regardless of which side they are on. These laws are categorized as jus in bello (law in war), jus ad bellum (law on the use of force) and jus contra bellum (law on the prevention of war). Current events continue to demonstrate how effective they truly are.

American service members who violate any of the aforementioned mandates face potential prosecution under the provisions of the Uniform Code of Military Justice. This code guides the promulgation of Standard Operating Procedures, Rules of Engagement and specific orders and directives applicable to unique combat circumstances and other exigencies of military service. Violating any of those instruments can lead to criminal prosecution by a variety of military and Federal law enforcement agencies and institutions. However, UCMJ and its associated components were not created to ensure justice for alleged military defaulters; they were written to ensure the good order and discipline of the Armed Forces of the US in time of war. Justice is ideal, but ensuring discipline is the purpose.

Such was the case for four officers and four enlisted Marines who were indicted almost a year to the day after the alleged excesses were committed. Many forces immediately came into play when they were charged. The UCMJ provides for both the prosecution and defense of alleged perpetrators. A senior officer, in this case three-star Lieutenant General James N. Mattis (called the “convening authority”), was appointed by the Commandant of the Marine Corps to decide what should be done. He was aided by a staff legal officer called a Staff Judge Advocate (SJA) to advise him when, how, who and why the alleged defaulters should be prosecuted. Incidentally, the Marine lawyer responsible for recommending these actions is now Major General John R. Ewers, Staff Judge Advocate to the Commandant of the Marine Corps, the Corps’ senior legal authority.

After consultations with his SJA Mattis, he made a reputedly unfettered decision to prosecute the accused for murder, aggravated assault, dereliction of duty, lying and cover-up. Once he decided on his course of action, Mattis directed the prosecutorial team assembled by his SJA to act upon the criminal complaints they decided upon. Meanwhile, his legal staff designated how the procedures would be implemented to include deciding which of his staff lawyers would be defense attorneys, who would fill the jury pool (called a “panel” in military parlance) and what access would be provided to the public. All of this was predicated to ensure an outcome the convening authority, and the US Marine Corps, wished to see. Most of the time, that is precisely what happens. While all of this was going on, former Secretary of Defense Donald Rumsfeld set up a shadow “body” composed of high-ranking Pentagon and administration officials to oversee the Haditha investigations, leak secret documents and pontificate grandly, the most damning evidence of the political motivations and influence over the ongoing prosecutions.

Englade calls the procedure initiated by Mattis “a clever manipulation [of UCMJ]” by the US Marine Corps that “turned the military justice system inside out, making a mockery of any naively held concepts of consistency with the spirit of the UCMJ.” For reasons unfathomable to this observer, Englade asserts the UCMJ “fosters transparency, accountability and prosecutorial competence.” Only an uninitiated civilian could believe that. Nothing is further from the truth. In fact, the opposite is correct. The last thing any convening authority seeks is transparency, accountability and prosecutorial competence. Anonymity, invisibility and quiet, immediate implementation of predetermined sentence is the real goal. Military discipline only works well when its recipients believe the only alternative to disobedience of orders is to believe any lawful alternative will include swift, harsh and certain retribution.

Nobody sane willingly obeys orders that will almost certainly get them killed. It is a reality that has survived the millennia. To combat perceived cowardice, the powers-that-be have always resorted to heinous measures to obtain cooperation. Examples abound. In World War I, the French revived the practice of decimation, a procedure Roman Legions once practiced to ensure esprit by killing every tenth man in any unit that failed its mission whether or not the condemned were guilty of anything. During World War II, the British executed 350 men by firing squad for Lack of Moral Fiber and the Soviet Union admitted shooting 150,00 men for desertion. Soviet Premier Joseph Stalin once told Prime Minister Winston Churchill “it takes a very brave man to be a coward in the Red Army.” It is law filled with contradictions and extremes.

Closer to home, the US executed 160 soldiers and other members of the armed forces between 1942 and 1961. There have been no military executions since 1961, although the death penalty is still available under the UCMJ. It certainly isn’t without precedence. During World War I, the US Army executed 36 soldiers by hanging between November 5, 1917 and June 20, 1919. Eleven unfortunates fell from grace in France while the remaining 25 hangings occurred in the continental US. During World War II, when more than 50,000 American service members deserted in Europe, the US Army shot one man and imprisoned thousands more, often with sentences of twenty to fifty years, to encourage fortitude. Of the total court-martialed for all offenses, 106 were executed for murder (including twenty-one involving rape), fifty-three for rape and unfortunate Eddie Slovik for desertion. Most were black. Charging, executing and imprisoning American service members capriciously is certainly not without precedence.

To put a fine point on this thesis, American armed forces can and will manipulate the implementation and execution of military law to suit its needs. In the case of eight Marines charged with murdering twenty-four civilians at Haditha, finding them guilty did not suit its needs for political reasons far outside the scope of this article. Another fine example is the case of Mr. William Laws Calley, a former Army officer found guilty of murdering twenty-two unarmed South Vietnamese civilians during the Vietnam War. After several sentencing reductions, his original sentence of life in prison was turned into an order of house arrest, but after three years, President Nixon reduced his sentence to fulfilled with a presidential pardon.

After Haditha, eight men from the maligned infantry battalion, including the commander, were prosecuted. All of them faced ruination and long terms of imprisonment. Ultimately, charges were dismissed against six Marines, including the commander. One lieutenant was tried and acquitted post-haste of hindering the investigation in a mockery of military jurisprudence. Finally, the staff sergeant charged with leading the massacre was convicted of negligent dereliction of duty and discharged from the Corps without serving a day in confinement. Six calendar years earlier, Staff Sergeant Frank D. Wuterich was charged with twenty-eight counts of murder and aggravated assault, as well as lesser charges. He faced life in prison without parole. He ultimately pleaded guilty to misdemeanor dereliction of duty, equivalent to unlawfully having his hands in his pockets. It should however be noted that putting them there is a grave threat to good order and discipline that calls for a maximum penalty of three months in jail.

Mr. Englade argues the “handling of the incident and its aftermath was a fiasco; the worst known performance by a Corps legal unit in multiple cases in the organization’s history. Normally, Corps trial counsel have a 93 percent conviction rate; in the Haditha proceedings it was 12.5 percent. Worse, it likely caused serious damage to the military justice system as a whole.” On the contrary, there were no mistakes in the entire seven year ordeal except in the case against Lt. Col. Jeffrey Chessani, the defendant’s commanding officer and a career Marine officer with an impeccable record. He was a marked man. The Marine Corps tried everything it could to crush his career and drive him in disgrace from the Corps. In that instance, it failed miserably when his investigating officer and two appellate courts found then Col. Ewers guilty of offering bad advice to Lt. Gen. Mattis that led to the dismissal of charges against Chessani for improper command influence in the prosecution of his case. Even the motive of that remarkable gaff has been questioned and examined ever since.

The Marine Corps rewards esprit and holds commanders who create grief for the institution ultimately responsible for their actions. The Marine Corps wanted his head and worked diligently to obtain it. It didn’t, however, anticipate he would be represented by a powerful civilian advocacy law firm with deep pockets and crackerjack lawyers. The mistakes that led to his complete exoneration began immediately after he was charged and didn’t conclude until he was allowed to retire from the Marine Corps with his rank and integrity intact. It was not an accident. When the tenants of the UCMJ was challenged by competent authority, it could not withstand the scrutiny of precedent and withered on the vine.

It is easy now to look back on the painful seven years it took to bring the case to a close and point out the glaring legal errors, the evidentiary inconsistencies and lies, deceit and obfuscation practiced by all the players involved in the longest, most expensive and fruitless criminal prosecution in the history of the US. It however was not a conspiracy, or an attempt to cover-up criminal behavior; it was the validation of a unique, unfair and malleable UCMJ that has as much to do with justice as military music has to do with beautiful serenades.

Nathaniel R. Helms is a Missouri-based writer with 30 years experience as a reporter, military affairs writer, and author of two non-fiction books about United States Marines in Iraq. His book My Men Are My Heroes: The Brad Kasal Story, Meredith 2007/reprint Naval Institute Press 2012, was selected by the USMC Commandant for recommended reading by Marines and designated a “Marine Corps Classic” by the Marine Corps League; his second book Not Time For Truth: The Marines, Justice and Haditha, Helms/Maj. Haytham Faraj, USMC (Ret.), Naval Institute Press, 2014, is available now. Helms is a Vietnam combat veteran, former Galveston, TX police officer, and investigative news reporter with extensive experience covering police and courts before reporting on the Yugoslavian civil war for seven months during early 1993.

Suggested citation: Nathaniel R. Helms, The Uniform Code of Military Justice Has Never Had Anything To Do With Justice, JURIST- Professional Commentary, Nov. 25, 2014, http://jurist.org/professional/2014/11/nathaniel-helms-ucmj-justice.php