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Was a Crime Committed in Haditha?


PJM's Jim Hanson, of Blackfive.net, takes an in-depth look at the tragedy that occurred in Haditha on November 19, 2005. As to whether or not the killings of Iraqis on that day constituted a crime, Hanson contends that "all available documents and reports and most of the testimony" say no.

by
Jim Hanson

Bio

August 31, 2007 - 1:00 am

This piece attempts to take a comprehensive look at the tragedy that occurred in Haditha. Most of the reports and hearing transcripts are available on the Defend our Marines website where Nat Helms and many others have done an amazing job of assembling all the available information about the incident and the people involved. Kudos. The last Marine facing murder charges SSgt Wuterich’s article 32 begins today 30 Aug. Murder charges against all others have been dropped.

The following is my opinion as to whether or not a crime was committed in this incident. I served as a Special Forces Weapons Sergeant and was trained as a hostage rescue and close quarters battle instructor. I have trained the hostage rescue teams for multiple US allies and conducted courses including Rules of Engagement, Use of Deadly Force, Target Identification etc. I have asked Grim Beorn, a writer here & a military/Intel analyst, whose opinion I value greatly to comment on some parts of this piece. In addition I asked a JAG officer I know to take a quick look the legal implications of the ROE etc. Their comments are block quoted and italicized.

There is one thing that is undisputed; a tragedy occurred that day in Haditha. The circumstances that caused it are open to considerable dispute however. They have been twisted by those with political agendas, most shamefully when John Murtha called these Marines cold-blooded killers. Let’s establish one thing immediately, we cannot determine what actually happened. To wax Rusmfeldian, that is a known unknown. Those Marines and the Iraqis who survived are the only ones who know and we have heard what both of them have to say. Still we cannot determine the truth of it. What we must do is determine if the killings were a crime.

From Grim

The answer is, "Yes, deadly crimes were committed — by the
insurgents, whose day-in, day-out war crimes of taking cover among the
civilians created this tragedy.  The law holds them responsible.  We
must always remember that the blame for these deaths lies first and
foremost at the feet of these war criminals, whose habitual disregard
for the basic standards of civilization has been allowed to be
forgotten.  They are treated in the press like a force of nature, but
they are men, and the law has a great deal to say about their actions.
The crimes of Haditha were their crimes." 

Only then is it proper to consider whether the actions of these Marines were criminal.

I have read all available documents and reports and most of the testimony and the answer is no.
The testimony and statements of the Marines involved do not implicate them and provide the most reasonable explanation for what happened. The statements of the Iraqis are hampered by many things including the many months that passed before they were interviewed, but their statements are contradictory to each other and contradicted in several cases by the physical evidence in the buildings.

Charges against two of the Marines have already been dropped but SSgt Frank Wuterich still faces murder charges with the Article 32 hearing coming up 30 August. There still remains the possibility that the charges against him will proceed, but I find that unlikely given the information and testimony from the other hearings where charges were dropped.

What we are doing here is examining the available evidence and determining if that merits charges of murder. That’s it, we are not discussing whether the Rules of Engagement (ROE) are proper or prudent, only whether these Marines followed them and that they perceived threats that justified the force they used. Remember it doesn’t matter if there was or wasn’t an actual threat, only whether these Marines believed there was.

SSgt Wuterich was the one constant in the three separate shooting incidents that day. First he was the senior man and second he fired rounds in all of the incidents. Let’s establish a base order of events.

0715 am IED explodes killing one Marine. Convoy comes under small arms fire (SAF).
0730 am White taxi stopped and 5 military age males are shot and killed
0745-8 am A building to the South is identified as the source of the SAF and designated as hostile by LT Kallop. SSgt Wuterich is ordered to assault and clear the building. Building 1 and 2 are assaulted and cleared with 15 killed.
0930 am Two other buildings are entered and 4 military age males are killed.
09-1100 am Other elements of Kilo Company engage with insurgents in the same area ending with an airstrike.

Let’s examine the three incidents SSgt Wuterich was involved in, the White Taxi, Houses 1/2, Houses 3/4.
These are three discrete incidents although they were part of the same combat operation. The diagrams are from the Washington Post.

wpost1.png

The White Taxi
Immediately after the IED exploded a white vehicle was stopped and 5 military age males exited. SSgt Wuterich and Cpl Dela Cruz were present . The men were ordered to the ground and initially both Wuterich and Dela Cruz stated that the Iraqis ignored the orders and began to run, and that this led them to engage the men. Later Dela Cruz changed his account and said he simply began firing because Wuterich was. He is scheduled to testify against Wuterich in his Art. 32 hearing AUG. 30.

There are several issues here. First were the men a threat? Second was deadly force appropriate or authorized? The 15-6 investigation found that when the military age males failed to comply with orders they acted in a way inconsistent with prudent persons and therefore could be considered legitimate military targets. There have been many questions about this and of the three this is the one closest to the line as far as the ROE.

From JAG Officer

With respect to the first incident – The question is not whether the
LN’s were acting "like prudent persons."  I know of three basic use of
force situationss under the JCS SROE and other ROE I have seen derived
from them: (1) forces declared hostile (like the IA and Iraqi
paramilitaries during the invasion; you can kill them in bed if you
want, unless they’re too sick or wounded to fight, or surrender); (2)
self-defense (defense of self, allies, mission-essential equipment),
and (3) detention.

The article doesn’t show me that (1) applies.  For (2), the question
is not, "was it stupid of them not to lie down." The question is, did
their actions create a reasonable belief that they were a threat, right
then, to life and limb, such that shooting was the minimum force needed
to eliminate the threat (remember, in civilian or military law, defense is not revenge).
For (3), I haven’t read their ROE, but if they had the right to detain
under the ROE, that includes the right to use force to stop them from
escaping (however, I’m not clear from the article whether they were
trying to detain anyone or only defend themselves) .

Neither Wuterich nor Dela Cruz has claimed that the men were armed at the time of the shooting and it is a charitable reading of the ROE to make running away a killing offense, but context is everything. A prudent person of military age in Haditha would know that disobeying an order from a Marine would be a bad idea. They would be expected to be extra compliant given that an IED had just gone off and the Marines were obviously reacting at an elevated level. In this instance running would lead a combatant to assume they had a reason to flagrantly disobey them, and that they were likely involved in the incident or possibly heading toward a trigger for another IED. In addition there was this information.

A former Marine from Kilo Company wounded at Haditha, Iraq on the day of the alleged massacre told Naval Criminal Investigative Service investigators he saw Kalashnikov assault rifles propped against a white taxicab next to the bodies of five Iraqi men killed when the fighting started. His report contradicts prosecution contentions that the Iraqis were innocent civilians.

Joshua Cash Karlen, 23, from Westminster, Colorado, said Monday that he is positive he saw the weapons while he was being evacuated from the battlefield. The following spring Karlen says he reported his observations to NCIS investigators while being interrogated by two special agents.

“They grilled me over why I was there, why I was driving through the cordon and what I saw,” Karlen said. “I was in there for about four hours.”
Karlen says he repeatedly told the two agents what he witnessed at the ambush site.
“The area was cordoned off when we drove by,” Karlen said in a telephone interview from his home. “I was hit by a grenade and had a severe concussion so I had to be evacuated out. I was on the south side of Chestnut (code name for the road running on the south side of the ambush site) being driven through the cordon. We were going real slow so I could see a white car, a pile of bodies, and weapons piled against the car. There were three or four AKs stacked leaning against a white car and some Marines were standing around. “….

The standard here is whether SSgt Wuterich perceived the men as legitimate military targets. COL Watt’s 15-6 report had all of this information available and knowing the circumstances determined that the men had acted within the ROE.

whitecar.png

a

wash2.png

Houses 1/2

Next was the clearing of Houses 1 & 2. After the incident at the taxi, the Marines were taking small arms fire (SAF) and LT. Kallop had an M203 gunner fire a 40mm High Explosive round to designate which building he determined it was coming from. He then ordered SSgt Wuterich to assault and clear the building and designated it as hostile. This is an important distinction because it greatly loosens the ROE the Marines are bound by.

From Grim

 

 

 

The "hostile house" concept
is a longstanding part of Western standards of war, and was used by all
forces in WWII.  These moral principles abhor the use of civilians as
cover, and hold that — if someone does — the blame for
resulting noncombatant deaths lies on them.  The reason for this
longstanding practice is twofold:   

 

 

 

   

A.  It denies a bad actor an additional strategic weapon, the law.  If
insurgent A hides among civilians and draws fire from Soldier B that
kills the civilians, treating that as a potential murder of civilians
by Soldier B doubly rewards the insurgent’s bad activity.  First,  he
gets the practical benefit of using civilians as cover.  Second, it
results in our taking Soldier B out of action during the investigation
and possible trial.  Though he was not able to wound or kill the
soldier, the insurgent has succeeded in removing an enemy from the
war.  That encourages more endangerment of civilians in the future.

 

 

 

      On the economic theory that anything rewarded will multiply,
treating civilian deaths as potential murders is counterproductive when
fighting insurgents who violate Western standards by using civilians as
cover.  The law hopes to protect the civilians, but ends up encouraging
the insurgents to endanger them. 

 

 

 

    B.
In addition to offering bad actors a strategic weapon, the application
of murder law also increases the effectiveness of their
original immoral tactics.  Hiding among civilians to snipe becomes more
effective as a defensive tactic, as it makes the responding soldiers
less likely to shoot.  Planting bombs in homes or other civilian areas
works better, as soldiers are not free to clear houses with indirect
fire.  If they must actually enter the houses to clear them, they are
at far greater risk from ambush and bombings.

 

 

 

        As the point of the Geneva Conventions and other international
standards of war is to protect noncombatants from the horrors of war,
it makes absolutely no sense to adopt a standard that rewards those who
hide among civilians and put them at risk.  However well intentioned,
such a standard does not protect the civilians, as it encourages more
bad actors to use them in this way, thus endangering their lives.  It
does not protect our soldiers, but instead directly endangers them.

 

 

 

        The only persons it does protect are the unlawful fighters who commit the bad action in the first place.  These are the
very class of people we should punish rather than protect, while those we hope to protect are punished.

 

 

 

      

That is the reason for the longstanding moral principle that underlies
the hostile house standard.  Our UCMJ and ROE are laid on top of that
principle, and must be considered in addition to it in order to
evaluate this particular case; but your readers will benefit from
understanding the underlying philosophy as well.

There have been accounts that question whether the Marines were actually taking fire. There are many corroborating accounts including this:

Karlen has an entirely different take on the incident, he says. He was on guard duty on top of a building when he heard a loud boom. He didn’t know what had happened except it came from the direction Wuterich’s four-HUMVEE patrol had just taken. The IED explosion was followed by a strong exchange of gunshots, he said.

“It was blatantly obvious somebody was getting hit,” Karlen said. “Corporal Haman was the senior Marine NCO on the C.O.P. so he could hear the radios, know what all was happening. I didn’t know anything except there was a firefight going on and we were going out.”

When the building itself is designated as hostile it means that force may be used first without the need to identify specific targets. This is necessary as one of the tactics employed in room clearing is to first throw in a fragmentation grenade. This device cannot distinguish between insurgents and civilians and that is the distinction in a case like this. Anyone and anything in that house is considered a valid target unless positive ID is made showing otherwise. Therefore anyone entering a room would first cover their sector with fire and then make an assessment if any threats still remained.

This may sound brutal, but such distinctions exist and must be made to allow our troops the best chance to survive. Imagine now having to make life and death distinctions in the smoke, dust, concussion and diminished sensory input of those Marines while assaulting what they believed was a hostile environ. They are not bound by a requirement to identify a threat in this situation, but they are bound to de-escalate if they find non-combatants.

From Lcpl Tatum’s Art. 32 Investigating Officer’s report:

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 in a room that you hear an AK-47 racking within a home that is declared hostile, would appear to be a rewrite of the rules of engagement and is clearly contrary to the training and experiences of the witnesses that testified. The government did not present even one witness that testified that positive identification under such circumstances is required before employing deadly force.

wash2.png

There were multiple instances of fire in the first house all of which were instigated by the Marines. Two Iraqis were shot and the Marines encountered a room with a closed door. After hearing a noise they agreed sounded like an AK-47 being racked, they threw two grenades in the room and after an explosion entered the room spraying their sectors with gunfire. This caused four more deaths.

At this point Wuterich announced someone had run out the back of the house and they moved toward House 2, which at this point became a hostile dwelling as a continuation of the same engagement. The Marines had not stopped to assess the results of their actions is House 1 and had no knowledge they had killed non-combatants. Their entry into House 2 was under the same assessment that they were pursuing insurgents who had participated in the ambush.

secondhouse.png

In House 2 there were again engagements and eight Iraqis were killed. One in the entryway of the house and 7 more in a back room. Wuterich, PFC Mendoza and Lcpl Tatum had entered the building. Mendoza shot the Iraqi in the doorway and then his tale eventually departs from Lcpl Tatum’s. At Tatum’s hearing, after making a deal that got his charges dropped, Mendoza said that he looked in a back room and saw that it was full of women and children and that he told that to Tatum. Later he heard shots from the back where Wuterich and Tatum now were. Tatum says that Mendoza told him nothing and that he followed Wuterich down the hallway and was looking in an empty room when he heard gunfire from the adjoining room. He then joined Wuterich in firing on the room. Here is what the investigating officer said in his report recommending that charges be dropped.

Additionally, LCpl Mendoza claims that LCpl Tatum was in the hallway but there is no mention of where SSgt Wuterich is located. It seems odd that a conversation would occur in this relatively short hallway and SSgt Wuterich would pass them to enter the room first. LCpl Mendoza testified that he did not witness what happened in the room and that he was not sure if something happened that gave rise to hostile intent or act. Finally, it is difficult to believe that LCpl Mendoza decided to protect his fellow Marines who he believed murdered 7 women and children and only after he is given testimonial immunity for his actions, he decides he no longer wants to protect them and provides a version of events that implicates LCpl Tatum. More likely, he provided a version of events to his counsel and that was part of the negotiations with the government for testimonial immunity. Furthermore, his demonstrated malleability to the truth and ease of manipulation by counsel makes his credibility highly suspect and in my opinion, it is not prudent to base a prosecution primarily on his testimony.

LCpl Tatum provided several statements to NCIS investigators that are all consistent with the forensic evidence but contradicts LCpl Mendoza’s statements in that he maintains always that he did not know there were women and children in the back room of house 2 prior to entry. LCpl Tatum’s unsworn statement at the Article 32 denies he identified women and children before shooting. Essentially, the only contradictions are whether he was informed of the presence of women and children and whether he admitted to identifying them prior to shooting. All other facts he relates seem to be consistent.

This is an important distinction, and if Mendoza is telling the truth it would change things completely. Mendoza also failed a preliminary polygraph related to a shooting of his in House 1. He was deemed deceptive in answering whether the Iraqi he shot was actually reaching into a closet as he had said.

marineversion.png

Houses 3/4

The third incident happened after a break in action when SSgt Wuterich took Cpl Salinas and Lcpl Sharratt to investigate a house where several military age males were watching their position. They proceeded to the location, which was actually two houses separated by a small alley. They entered the first house and found only women and children. They left Salinas there and proceeded to House 4 where Sharratt encountered an Iraqi armed with an AK-47, He attempted to fire his SAW which jammed so he transitioned to his 9mm pistol and engaged the man killing him, he continued into a room with three other men, one with an AK-47 and began engaging them when he was joined by SSgt Wuterich.

Lcpl Sharrat has taken and passed a polygraph about whether the first man he shot had an AK-47.
This seems to be the most cut and dried example of shootings easily within the ROE. They encountered armed men in an area where an ambush had recently occurred which is basically a suicidal action. Holding an AK 47 when you know Marines are actively engaged in combat operations in your neighborhood labels you an insurgent and not a bright one.

From JAG Officer

"Holding an AK 47 when you know Marines are actively engaged in combat
operations in your neighborhood labels you an insurgent and not a
bright one…"   Again I don’t have the detailed knowledge I’d like,
but I didn’t see information in the article showing that the locals
knew that (it sounds like an ambush, which to a neighbor sounds like an
explosion and SAF) – IIRC, every MAM in Iraq gets to keep a rifle in
the house; who wouldn’t have a weapon in hand in the midst of those
sounds?  (But the shooter is still judged by what he reasonably
perceived).

There was testimony from other Marines in the area and there was gunfire throughout the morning all over the area. It was an area very friendly to the insurgents, so it is unlikely he would be defending himself against the insurgents. In addition we are back at the perception of LCpl Sharratt as JAG O notes. What matters is did he think the man was a threat, if so then no crime was committed.

The investigating officer’s report had this to say:

Art 32 Lcpl Sharratt

Evidence offered to support reasonable grounds

     I find that the Iraqi witnesses’ statements are unsupported by scientific evidence and are incredible for the following reasons:

1. Evidence not Consistent with an Execution. Without question, the forensic evidence demonstrates that three of the men were shot in the head while facing forward from a distance of at least 2 feet. The three men in the specifications of the Charge all suffered fatal head wounds consistent with 9mm rounds fired from a distance beyond 2 feet. It is difficult, if not impossible to believe, that trained and experienced Marines would decide to execute 4 unarmed men by leading them into a house, moving them to the a back room with no light (curtains were closed) and allow them to move about the room while trying to shoot them with the least effective weapon in their arsenal. In addition, forensic evidence proves that one person was standing in the doorway and shot to the face while the other three men were further inside the room. Under such circumstances one would reasonably expect that the others would then attempt to run or fight. None of the victims received defensive wounds to their hands or arms nor did they receive wounds to their backs or rear of their heads. Each was shot facing forward, from a distance, and with a 9mm pistol which I find inconsistent with an execution or persons reacting to an execution. Furthermore, there is no evidence to suggest LCpl Sharratt attempted to hide the fact that he shot these individuals. To the contrary, SSgtt Laughner testified that he was aware that people were shot in house 4 due to reports from the field…..

Evidence offered against reasonable grounds

      In contrast, LCpl Sharratt’s version of events is fully supported by the independent scientific evidence. NCIS agent Maloney described the account of LCpl Sharratt as "not fully supported or contradicted." By that he meant that he could not determine if two of the individuals were moving toward LCpl Sharratt when he fired his weapon, that he could not conclude if the victims had weapons on them before being shot and that he was unsure of the position of the number 3 victim when he received his fatal wounds. Upon further examination. Special Agent Maloney conceded that LCpl Sharratt’s account of what occurred is the most reasonable and plausible explanation supported by the forensics. Although science will never be able to remove all doubts, with a high degree of certainty, the science supports the statements of LCpl Sharratt as the most plausible, possible and most likely….

Finally, to believe the government version of facts is to disregard clear and convincing evidence to the contrary and sets a dangerous precedent that, in my opinion, may encourage others to bear false witness against Marines as a tactic to erode public support of the Marine Corps and mission in Iraq. Even more dangerous is the potential that a Marine may hesitate at the critical moment when facing the enemy…..
On that fateful afternoon, Jasib heard someone enter house 4. He investigated with his AK-47 in his hands. LCpl Sharratt saw him and perceived him as a threat. Using his training he responded instinctively, assaulting into the room emptying his pistol. Whether this was a brave act of combat against the enemy or tragedy of misperception born out of conducting combat with an enemy that hides among innocents, LCpl Sharratt’s actions were in accord with the rules of engagement and use of force……

The last Marine facing murder charges is SSgt Wuterich and he faces a higher standard than the other Marines as he was leading them. There are unlikely to be major revelations in his Art. 32 hearing although since both Mendoza and Dela Cruz made deals and cooperated with the prosecution there could be. Unless Dela Cruz testifies that SSG Wuterich purposely shot innocent men at the taxi, I don’t believe he is in any jeopardy on the other incidents at all.

LCpl Tatum made a statement that I find very believable and vital in considering the Marine’s state of mind or in legal terms their Mens Rea. He states his horror at the idea of killing innocents, but illuminates the fog of war that can cause just such an outcome.

LCpl Tatum’s Statement to the Investigating Officer
(As recalled by legal counsel)

There are some points I’d like to bring to light.
The reason I fired in house 1 is that I knew small arms fire was coming from the south. I didn’t see where it was coming from, but I saw an M203 round hit house 1. My squad leader told me on the way to house 1 to treat it as hostile.

I heard a Marine engage a target after entering the house, and I knew Mendoza engaged a target to the right inside the house. I heard an AK-47 being racked in the room to the left, and me and Cpl Salinas threw grenades in that room.

After the grenade went off, I went in and followed my training firing in my sector.
The visibility was horrible. There was dust and smoke. I really couldn’t make out more than targets.  Someone yelled there was a runner, so I followed my fire team to house 2.
Before we entered, Mendoza engaged someone through the door. Inside, I was told to frag a room.  When I saw that room was clear, I heard another Marine engage in the next room. My duty was to help that Marine, so I went in and engaged targets.

It was dark, I couldn’t make out a whole lot. Just targets. I only went in each room a few steps, and the shooting lasted only seconds in both houses.

I did not tell NCIS I knew there were women and children before I fired. I did not know there was women and children in that house until I went back later in the afternoon with SSgtt Laughner. Otherwise, I would have physically stopped everybody from shooting.  The conversation Mendoza said happened never happened.

I am not comfortable with the fact that I might have shot a child.  I don’t know if my rounds impacted anybody. That is a burden I will have to bear.

Jim Hanson writes for the military blog Blackfive.net on national security issues.

More on Haditha:

What makes a shooting a massacre

Good men pushed too far?

Waiting for Haditha by Grim

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