CAMP PENDLETON – The architect of Lance Cpl. Stephen B. Tatum’s successful defense in the so-called “Haditha Massacre” case said that Gen. James N. Mattis “made a mistake” when he recommended his client be sent to general court-martial six months ago.
Houston attorney Jack B. Zimmermann, a decorated, retired Marine Corps colonel and former military judge, said Gen. Mattis, should have accepted the recommendations of investigating officer Lt. Col. Paul J. Ware last summer to dismiss the charges against the 26-year old rifleman. At the time Mattis was “convening authority” in the investigation
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Ware made his recommendations to dismiss the charges on Aug 23, 2007 at the conclusion of Tatum’s week long Article 32 evidentiary hearing.
Charges against the veteran Oklahoma infantryman were dismissed Friday morning “with prejudice” by Lt. Gen Samuel Helland, the convening authority and final arbiter in the notorious case. His decision means Tatum is free and clear of further prosecution in the case.
“Lance Corporal Tatum wants to make it clear to the Marine Corps – especially other Marines - and everyone else that there were no deals in this decision. I have never had a client who would have more preferred to have a trial rather than have the charges dismissed in a deal. He has believed all along he did nothing wrong and was prepared and anxious to stand trial,” Zimmermann said.
On Dec. 21, 2006, Tatum and eight other Marines were charged with war crimes. The five enlisted Marines who pulled their triggers were charged with unpremeditated murder and other serious related charges and four officers were charged with covering up their subordinate’s alleged misdeeds.
The furor that led to the charges erupted after a March 2006 Time magazine report claimed that nine survivors of Tatum’s 12-man squad slaughtered 24 innocent Iraqi civilians in retaliation for the death of one squad member and the wounding of two others in a November 19, 2005 roadside ambush at Haditha, Iraq.
The Marines belonged to 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marines – the “Thundering Third” - one of the most decorated and celebrated infantry battalions in the Marine Corps.
Helland’s decision surprised his defense team, Zimmermann said. “We were ready to go.”
Last October 19 Tatum’s most serious charges were reduced from unpremeditated murder to involuntary manslaughter, reckless endangerment and aggravated assault. He faced up to 18 years in prison if convicted of all the charges.
Tatum never denied he threw a grenade and fired his weapon as he moved from room to room “clearing” two houses of presumed threats. Inside, however, were 14 civilians cowering in their bed rooms and hallways. The accused Marines testified that in the smoke filled, dimly lit interiors they were unaware of who died until their platoon commander and one of the riflemen went back to investigate.
“He did exactly as he was trained to do,” Zimmermann said. “He reacted like Marines are supposed to.”
Helland’s decision to drop all the charges against Tatum leaves one enlisted Marines and two officers still facing criminal charges in the case. Staff Sergeant Frank Wuterich, Tatum’s squad leader at Haditha, faces the most serious penalties. Wuterich is charged with nine counts of voluntary manslaughter, aggravated assault and other related charges and could spend most of his life in prison.
The government alleges he killed at least nine people without properly obtaining positive identification. Tatum, who entered the same two buildings almost simultaneously with Wuterich, is an eyewitness to what his squad leader was doing.
Zimmermann said his client will stay in the Marine Corps voluntarily for at least six more months to ease the way for the Marine Corps to obtain his testimony if he is called to present it. Both sides of the case think Tatum will bolster their cases, a notion that makes some of the defense teams privately scoff.
Also awaiting general court-martial is 1st Lieutenant Andrew Grayson, an intelligence officer charged with destroying photographs and trying to obtain a fraudulent discharge. He was up for a Bronze Star medal for heroism when charges were brought against him.
Lt. Col. Jeffrey Chessani, the former battalion commander, is the highest ranking officer to still face criminal penalties. His court-martial is scheduled to begin April 28, a date that is more tentative and assured, his defense has said. The career Marine infantry officer had an unblemished career before he was charged with dereliction of duty for not investigating and reporting the matter adequately and failing to obey a standing order to update a combat journal entry.
Three of Chessani’s top commanders were sanctioned administratively. Maj. Gen. Richard A. Huck, formerly the 2nd Marine Division Commanding General, his chief of staff Col. R. Gary Sokoloski, and Col. Stephen W. Davis, the Regimental Combat Team-2 commander, were given letters of censure by Secretary of the Navy Donald Winter. His action destroyed their careers.
Winter told the officers they had “betrayed the trust” of the Marine Corps for not investigating and reporting the Haditha matter appropriately. Winter was particularly critical of the three senior Marines’ apparent reluctance to respond to multiple requests by Time magazine to reveal what happened at Haditha.
“Even when made aware of the serious allegations raised by the Time magazine journalist, your response to higher headquarters was to forward incomplete, inaccurate, and inconsistent materials provided by a subordinate unit, rather than to initiate a thorough inquiry into the incident,” Winter rebuked Col. Davis.
In response to a reporter’s recent inquiry, a spokesperson for Secretary Winter said in response to a written question that “Time magazine was mentioned as an example of an incident which garnered significant, national media interest; and yet--initially--was not thoroughly investigated. The Secretary was not giving Time magazine special consideration, nor was he suggesting that media have a specific right and/or need to know.”
The Time magazine allegations led to world-wide condemnation of the Corps by journalists, pundits and politicians opposed to the conduct and policies of the war. Their unrelenting attacks and specious accusations pressured the beleaguered Marine Corps to originally seek criminal charges for murder and cover up against the nine Marines.
Ware, in his final report as investigating officer, told Gen. Mattis that it was his belief “that a case against Lance Cpl. Tatum is too weak to pursue” and that he was “not recommending the charges go forward.”
Zimmermann said that Mattis should have listened. He said Ware is an experienced military judge that the Marine Corps imported from Hawaii to investigate the case. He heard 21 witnesses and reviewed hundreds of pages of evidence before making his recommendation. His lengthy report was a rebuke to allegations that Tatum operated outside his standing orders and Rules of Engagement when he attacked a house he believed to contained insurgents ambushers.
A spokesman for the Marine Corps at Camp Pendleton said the charges against Tatum were dropped in order to “continue to pursue the truth seeking process in the Haditha incident.”
Zimmermann said that Lt Gen. Helland, who replaced Gen. Mattis November 1 after his promotion to four-star rank, made the “correct decision” to dismiss all charges against Tatum, a veteran of two combat deployments to Iraq,
Defense lawyer Neal Puckett, who represents Staff Sgt. Wuterich, said that the government’s continued insistence on prosecuting his client “speaks to the government’s desperation” in pursuing the languishing case.
Wuterich’s case is on hold while the government argues an appeal to a military judge’s decision not to compel CBS to produce out takes from a 60 Minutes newscast that Wuterich appeared on.
The government argues that it may hold evidence of Wuterich’s guilt. The government’s pursuit of Wuterich is partially based on admissions he made on the national television broadcast.
Puckett said Tatum’s exoneration will enhance his client’s case for a variety of reasons. Tatum‘s presumed testimony is key to the government’s case against Tatum’s former squad leader. Wuterich admitted he ordered Tatum and two other Marines to aggressively attack the suspected insurgent sanctuary, telling them to shoot first and worry about everything else later.
The government says the Rules of Engagement in force at Haditha prohibited unprovoked attacks on civilians.
The battalion’s own training experience suggested otherwise, the evidence in Tatum’s case revealed. The Marines were taught to suppress enemy fire with overwhelming force including tossing a grenade or two into a room before entering it while blasting away with their rifles. The Marines repeated the exercises for three months in an almost daily regimen of combat training before being deployed to Iraq in the fall of 2005, the evidence revealed.
The Marine’s attack on the two houses where 14 civilians died in a maelstrom of fire occurred so fast that machine gunner Lance Cpl Justin Sharratt, rushing six hundred meters to reinforce their attack, testified he reached their location after their attack was over.
“When a junior enlisted Marine finds himself in a firefight and knows his actions are going to be interpreted somewhere else in an air conditioned office six months later it could get him killed,” Zimmermann said. “I wish that he and his family had not been put through this and the decision had been made last summer.”
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