In a significant development in the pending court-martial of Marine Lt. Col. Jeffrey Chessani, the military judge has ruled that the only issue left in the case is whether the former commanding officer of the 3rd Battalion, 1st Marines should have suspected that some of his men had murdered civilians during an insurgent ambush in November 2005.
Chessani, one of America’s most effective combat commanders in Iraq, now faces dismissal (an officer’s equivalent of a dishonorable discharge), loss of retirement, and imprisonment of up to three years, according to his attorneys.
He is charged with failing to properly investigate and report actions involving a house-to-house, room-by-room battle that four of his enlisted Marines engaged in on Nov. 19, 2005, after being ambushed by insurgents in the town of Haditha, Iraq, according to the Thomas More Law Center.
Chessani reported the events of that day to his superiors, including the death of 15 noncombatant civilians caught in the crossfire, and none of his superiors concluded there was reason to conduct a formal investigation since they all rightfully understood the death of civilians was a tragic but unfortunate aspect of urban warfare.
Thus far, the Law Center reported, judicial proceedings have supported the initial determination of Chessani and his superiors. After 30 months of investigation, costing taxpayers millions of dollars, the criminal cases against three of the four enlisted men charged with the civilian deaths have been dismissed.
“The judge’s theory introduces coherence to the trial," according to Richard Thompson, president and chief counsel of the Thomas More Law Center, whose attorneys are defending Chessani. "It will place limits on what kind of evidence can be introduced by both the prosecution and defense, but it still could result in an illogical jury verdict.”
Thompson speculated, “A military jury could find Chessani guilty even if it concluded that his Marines did not kill civilians in ‘cold blood,’ that no law of war violation actually occurred, and his decision not to conduct a formal written investigation on the November 19, 2005 Haditha incident was the right decision based on the actual facts — all prosecutors would have to show is that Chessani should have suspected a violation in order to find him criminally guilty.”
But making such a finding would require the prosecution to explain why every officer up the chain of command who had the exact same information Chessani had in the immediate aftermath of the ambush concluded as he did that no investigation was warranted, Brian Rooney, a Law Center attorney, told Newsmax in an exclusive interview.
Moreover, the evidence upon which the prosecution says their entire case rests has little chance of being admitted.
“We wanted to bring in those in the chain of command that had not spoken to Colonel Chessani, like General Johnson, the superior officer General Huck, the division commander, and others who said they saw all the reports and they believed that since it was combat action it needed no further formal investigation,” Rooney said.
“Colonel Stephen Folsom, military judge, said that all he thinks this case is about is what Chessani knew, what he reported and what he was told.
“That narrowed what we had to work with considerably. But it also helps in the sense that the government has been waving around pictures of the dead people who were in the houses in what we believe is an attempt to prejudice either the jury or potential witnesses. The judge hasn’t ruled conclusively yet but essentially has said that if Chessani didn’t see those pictures he doesn’t see the relevance for them."
That could prove highly damaging to the prosecution’s case, Rooney said.
“In what was perhaps a Freudian slip, Lieutenant Colonel Sullivan, the head prosecutor, told the judge ‘that’s the heart of our case.’ And the judge said, ‘It is?’ with a kind of quizzical look. So if the heart of their case is basically trying to prejudice the jury with pictures of dead bodies — pictures Chessani never saw — it tells you a lot about what this prosecution is all about.”
The prosecution is attempting to show is that a reasonable battalion commander would have seen these pictures, Rooney said, adding that this is untrue. “A battalion commander would only see them if the officer in charge of the pictures thought they had intelligence value. That officer thought they didn’t and so Colonel Chessani never saw them, and therefore they should never see the light of day in our trial which is a good thing for us.”
Rooney called the prosecution’s attempt to try to prejudice the jury by showing the pictures “improper.”
He said the end result of this case is that all the Marines charged with shooting the civilians could end up being cleared — as all but one has — of committing a law of war violation that never occurred while Chessani is court-marshaled for failing to investigate a law of war violation that never occurred.
“It’s unfortunate that what we’ve got to this — what I call a legal fiction — where you are arguing something that we know never occurred and whether or not Colonel Chessani should have gone outside this realm of reality to suspect that something that clearly had not happened did happen,” Rooney argued.
"The judge said that he didn’t care if there was a law of war violation, that all he cares about is whether Colonel Chessani reported a law of war violation and if he did not, whether that was reasonable.”
Rooney, a former Marine captain who served in Iraq, recalled that in a recent hearing, the first thing the government did was to try to suppress the testimony of the battalion’s intelligence officer, Maj. Jeffery Dinsmore.
“This was Colonel Chessani’s principal staff officer on intelligence. He told Colonel Chessani what the intelligence was before the November 19, 2005 ambush, meaning ‘Sir, we’re going to be attacked — this what everybody says,’ what the intelligence was that day, and the follow-on intelligence.
“All this goes to Colonel Chessani’s state of mind: what he believed, why he believed it. And the government tried to suppress Major Dinsmore’s testimony. They failed in that, and in the same breath, they now want to parade before the jury the bloody shirt — pictures that are not accurate pictures because the staff sergeant who took them moved the bodies to take pictures of them for intelligence purposes; pictures of their faces to see if they were insurgents."
In a statement e-mailed to Newsmax, Richard Thompson wrote, “Jurors are going to be asked by prosecutors to second-guess the decisions made by a battlefield commander — decisions made during the heat of battle and fog of war, without the benefit of hindsight, and a multimillion dollar investigation, over two years later.
"What is most disturbing is that Chessani’s decisions were all deemed ‘reasonable’ by his chain of command in Al Anbar province, Iraq, at the time. Law Center attorneys have spoken with several generals who all understood Chessani’s actions to be reasonable, but they will not be allowed to testify — it’s up to a jury sitting in a comfortable, air-conditioned courtroom in Camp Pendleton, many miles away from the fighting, to decide that now.”
Thompson added, “In this case, a fictitious commander who made the wrong decision, that caused the expenditure of millions of dollars in a fruitless investigation, destroying several military careers in the process, would be the one approved by the politically correct politicians in the Pentagon. In other words, the wrong decision would have been the right decision according to these politicians.”
Next up will be a decision as to whether command influence prejudiced Chessani’s case. If Folsom agrees there was such undue influence from above, the case is over.
Chessani is being defended by Thomas More Law Center lawyers Robert Muise and Brian Rooney, as well as military defense counsel Lieutenant Colonel John Shelbourne, USMC, and Captain Jeff King, USMC.
The Thomas More Law Center defends and promotes the religious freedom of Christians, time-honored family values, and the sanctity of human life through litigation.
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