The Navy-Marine Corps Court of Criminal Appeals in Washington, D.C., has unanimously upheld a lower court ruling dismissing criminal charges against Marine Lt. Col. Jeffrey Chessani for his alleged role in the specious “Haditha Massacre” in Iraq on grounds of “apparent Unlawful Command Influence,” it announced in a decision handed down Tuesday morning.
Chessani is the highest-ranking officer facing criminal charges as a result of the ill-described incident on Nov. 19, 2005, that left one Marine dead and 11 others wounded during the daylong battle against al-Qaida led and financed insurgents. Seven other Marines, three officers, and four enlisted men were also charged in the case. All except one of them has been exonerated.
Even though he wasn’t present during the incident, Chessani was criminally charged with failing to launch a full investigation into the incident. If convicted, he faces 2½ years imprisonment, dismissal from the Corps, and loss of all of his retirement pay. This decision could be appealed to the Court of Appeals for the Armed Forces (CAAF) and then even to the U.S. Supreme Court. The government has yet to announce whether it will pursue another appeal, Chessani's lawyers told Newsmax.
“Thank God,” Chessani, 43, reportedly said when his lawyers gave him the news.
Chessani is the father of six children, including an infant daughter. During his illustrious 22-year career, he frequently left his family to serve in every active theater of operations the Marine Corps has fought in since he joined.
Four years ago, Chessani was relieved of command of 3rd Battalion, 1st Marines, “The Thundering Third,” one of the most highly decorated infantry battalions in the Iraq War. In December 2006, he was charged with failing to report and investigate the deaths of 15 Iraqi civilians killed in a crossfire between insurgents and his troops at Haditha.
The civilians died along with eight armed insurgents and one Marine in a complex attack precipitated by a roadside ambush that also wounded 11 other Marines.
Chessani served three tours of duty in Iraq before his career was destroyed when allegations from ill-informed reporters and Rep. John Murtha, D- Pa., that he covered up evidence that Marines under his command had wantonly murdered 24 Iraqi civilians inflamed public opinion.
“They were killed in cold blood,” Murtha repeated over and over on international television.
In fact the ambush and subsequent carnage was the result of a sophisticated plan by Iraqi insurgent counter-intelligence operatives that Newsmax revealed several years ago. As a result of the extreme bias from some news organizations that precipitated the charges, Newsmax became instrumental in raising hundreds of thousands of dollars for other Marine defendants charged in the case.
Brian Rooney, one of the civilian attorneys from the Thomas More Law Center in Ann Arbor, Mich., that represents Chessani without charge, said the career infantryman wants to quietly retire as soon as the Marine Corps lets him.
“He just wants to get on with his life,” Rooney explained.
The appellate court ruled “the Government failed to meet its burden of demonstrating, beyond a reasonable doubt, that the proceedings were untainted by the appearance of UCI (Unlawful Command Influence). We are similarly convinced that an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor significant doubt about the fairness of this proceeding.”
The issue was raised in testimony at Camp Pendleton, Calif., more than a year ago that revealed Col. John Ewers, a Marine Corps lawyer, had unduly influenced Gen. James N. Mattis while he was reviewing the evidence against Chessani. Mattis, then a leutenant general, was the “convening authority” who recommended Chessani and the other Marines be prosecuted.
Before serving as Mattis’ personal lawyer, Ewers was one of the principal investigators charged with investigating the eight Marines ultimately accused of crimes stemming from the incident. Military law prohibits its lawyers from involving themselves in criminal cases in which they had a prior investigative or prosecutorial interest.
Although Mattis was being advised by another military lawyer of lower rank while he evaluated the case, Ewers was his personal attorney as well the the command staff judge advocate for his West Coast command at the time.
The three officers originally charged were accused of a laundry list of complaints that alleged they lied to investigators, concealed evidence, and entered into a conspiracy to conceal the facts of the horrific event from higher authorities. The enlisted men, led by Staff Sergeant Frank Wuterich, were charged with murder, assault, and lying to investigators. Except for Wuterich, all of the Marines have now been exonerated.
Wuterich, stationed near Chessani doing busy work at Camp Pendleton, is yet to receive his day in court. Scheduled to begin March 10 after numerous delays and reductions in charges, his court-martial ison hold again while the attorneys argue over procedural matters.
Wuterich Still Out On a Limb
On March 12 a military judge barred prosecutors from using outtakes of the TV program “60 Minutes” as evidence against Wuterich, charged with nine counts manslaughter at Haditha.
Government prosecutors claim incriminating statements Wuterich made to interviewer Scott Pelley ended up on the cutting room floor instead of being broadcast. The prosecution said the statements Wuterich allegedly made on the outtakes will help them convict him of intentionally shooting innocent civilians during the counter-attack he led after being ambushed.
Lt. Col. Jeffrey Meeks quashed a subpoena filed by Marine prosecutors to require CBS to turn over hours of unaired footage from an interview with Wuterich. The government’s demand for the outtakes delayed Wuterich’s trial for a year.
Meeks said the footage he watched “constitutional protection” under the First Amendment right to freedom of the press.
“There is a qualified newsgatherers privilege, and it is applicable here based on concerns about a chilling effect on the press,” Meeks said. “The press has an interest in being able to prepare and preserve stories without being an investigative arm of the government.”
Meeks called the government’s efforts to get the outtakes a "fishing expedition" that case law expressly forbids.
Wuterich originally was charged with multiple counts of premeditated murder, aggravated assault, and lesser charges.
Rooney, a former Marine attorney and a principal defense attorney during the proceedings, said the decision in Chessani’s case has a direct bearing on the Wuterich court-martial as well.
“Ewers was investigating for General Mattis about Wuterich’s case at the same time he was advising him about Chessani,” Rooney noted.
No Appeal Yet
The government, as stated earlier, can still appeal, as well as search for another Marine Corps general to appoint as convening authority to look into the allegations against Chessani and perhaps recommend another round of charges.
“We haven’t heard from the government yet, “ Rooney said Tuesday afternoon. “But it is time to stop wasting taxpayer’s money.”
Robert Muise, another attorney with the Law Center, argued the case on behalf of before the appeals court. He is defending Chessani alongside Marine lawyers Lt. Col. John Shelburne and Captain Jeff King. Capt. Kyle Kilian, a Marine appellate defense lawyer, also assisted in the appeal.
“Lieutenant Colonel Chessani, one of the most effective combat commanders we had in Iraq, was a made political scapegoat by the civilians in the Pentagon to appease the antiwar politicians and a liberal media,” said Richard Thompson, president and chief counsel of the Thomas More Law Center. "In fact, we now know that the story of the ‘massacre’ that prompted the Haditha prosecutions was a headline in a Time news article instigated by insurgent propaganda operatives."
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