JIM LEHRER: And finally tonight, military justice and Haditha. Ray Suarez has our story.
RAY SUAREZ: These are the scenes from what has been called the Haditha massacre: blood on the floor; walls and ceiling of one family’s home in Haditha, in Anbar province, Iraq, where, on November 19, 2005, 24 Iraqi civilians were killed by U.S. Marines.
It began after a roadside IED bomb attack on the Marines killed 20-year-old Lance Corporal Miguel Terrazas. Allegedly, his squad then went on a rampage, killing men, women and children, five people in a taxicab, and 19 others in their homes nearby.
When the details of that day came to light through media reports, a firestorm erupted, and several investigations were launched. Four enlisted Marines were charged with murder. Four officers were accused of participating in a cover-up or of not fully investigating what happened.
But now, after the military equivalent of grand juries and decisions by top commanders, only two Marines face courts martial for lesser charges. Two officers also face courts martial.
Earlier this week, Staff Sergeant Frank Wuterich, the squad leader originally charged with murder, had his charges reduced. The Marine Corps said Wuterich would face a court martial for voluntary manslaughter, aggravated assault, reckless endangerment, dereliction of duty, and obstruction of justice.
In April, Sergeant Sanick Dela Cruz was given immunity for his testimony, and all charges against him were dropped. Lance Corporal Justin Sharratt had his murder charges dropped in August.
Lance Corporal Stephen Tatum had murder charges dropped, but is still facing court martial for involuntary manslaughter, reckless endangerment, and aggravated assault.
Of the four officers investigated for their roles in an alleged cover-up, two captains have been cleared. Two others are facing court martial, including Battalion Commander Lieutenant Colonel Jeffrey Chessani, the highest-ranking U.S. serviceman to face court martial involving combat in Iraq. He’s charged with willful dereliction of duty and violation of a lawful order in reporting and investigating the Haditha incident.
Evaluating reduced charges
RAY SUAREZ: Is justice being served in the Haditha case? For that, we get two views. Retired Major General Walter Huffman was the Army's top lawyer, serving as judge advocate general from 1997 to 2001. He's now dean of Texas Tech's School of Law.
And Feisal Istrabadi was Iraq's deputy representative to the United Nations from 2004 to 2007. He's now a visiting professor of law at Indiana University Bloomington, where he teaches courses on transitional justice and democratization. He's both a U.S. and Iraqi citizen.
General Huffman, looking over how this case has developed since the news first broke about the killings in Haditha, can you say with any confidence that the system is working and working properly?
MAJ. GEN. WALTER HUFFMAN (Ret.), Former Judge Advocate General: First of all, I'd like to say I haven't had any personal involvement in any of these things, so to a certain extent what I'm saying is speculation based on my experience.
And, secondly, I'd like to start off by saying that this is certainly a tragic event, whatever else it is, and express my condolences to the families of those involved.
But to answer your question directly, it appears to me that, after a faulty start -- which is also explainable, to some extent, by the friction of war, as von Clausewitz used to say, the military philosopher from Prussia -- it looks like to me that the Army, the Marine Corps took it upon themselves to conduct a thorough investigation of this incident and do the best they could to ensure justice was done.
RAY SUAREZ: And, Ambassador Istrabadi, what do you think about the reduction for several of the men of the charges from murder down to voluntary manslaughter, and reckless endangerment, and others?
FEISAL ISTRABADI, Former Iraqi Representative to United Nations: Well, I think you've asked the pertinent question: Is the system working?
Like the general, I can't comment specifically about this case. I haven't seen the evidence which the judge advocate general would have done.
But in general, the system appears to be biased towards reducing charges, towards acquitting of more serious charges, and towards not holding higher ranks within the U.S. military establishment responsible.
There have been a number of incidents, such as this Haditha incident. There was the Abu Ghraib incident or series of events earlier. And in all of these instances, higher ranking officers -- and, in general, officers -- got a pass.
The lower ranks had individuals held criminally responsible, but usually for reduced charges.
It raises, certainly, questions as to whether the system is, in fact, biased towards overlooking more serious charges. It's something that is very troubling.
Holding soldiers accountable
RAY SUAREZ: And, Ambassador, what about General Huffman's point, that there's the friction of war, that sometimes, in the persecution of combat, civilians are going to get hurt and killed?
FEISAL ISTRABADI: Yes, well, I understand that. The expression often used, at least in the media, is the "fog of war." I would submit that it is in the fog of war that the rules have to be clearest, that the red lines have to be the brightest.
When you arm men and women and give them license to kill under combat conditions, it has to be very clear to all concerned that there are very bright, red lines.
The intentional targeting of civilians, this is what we're talking about. We're not talking about an aerial bombardment campaign in which non-targeted civilians are killed.
The military expression, which I detest, is "collateral damage." We're not talking about that.
We're talking about allegations that a specific group of men, in violation of the laws of war, what would, in fact, be -- if proven -- war crimes, intentionally targeted Iraqi civilians, knowing that they were noncombatants.
This is about as serious a charge as can be leveled against anyone who bears arms. And so it is precisely in the situation where you have this fog of war that we, as a civilized society, have to be clearest about what is permitted and what is criminal.
RAY SUAREZ: General, how do you respond to the ambassador's concerns?
MAJ. GEN. WALTER HUFFMAN: First of all, I would beg to differ with the ambassador's comment about higher ranking officers not being held accountable.
Certainly, we're looking here at criminal trials. And criminal trials, as I think all of us know, require proof beyond a reasonable doubt that something happened, not just speculation, but legally admissible evidence that will support a finding of guilty beyond a reasonable doubt.
And that's a very different thing from saying, "Well, somebody should have known, should have done better." But even in those cases -- and the ambassador referred to Abu Ghraib, for example -- a rising star -- several rising stars, actually -- Lieutenant General Ricardo Sanchez, had his career terminated, his four-star nomination withdrawn. The brigadier general in charge of the Abu Ghraib prison was forced to retire as a colonel.
These are not minor punishments that were imposed upon these persons, whose failures were failures of leadership, which is not a criminal charge, but a failure of leadership. But they were held accountable.
But in these other cases, I think that it is very difficult, especially in combat, in the combat situation, where the reality of combat is very different from war on paper, to find the legally supportable, legally admissible evidence that's required to hold a person criminally responsible.
Nevertheless, against this sergeant platoon leader who's alleged to have fired the shots, that's exactly the allegation that's going in: voluntary manslaughter, the intentional targeting of noncombatants in the heat of passion.
And that appears, based on the information I've seen from the investigation, to be a correct charge on which to go forward.
Iraqi civilian perspective
RAY SUAREZ: And, Mr. Ambassador, are the Iraqi people following these cases closely? And what do they conclude from the kinds of charges and the kinds of punishments that have been meted out so far in this war?
FEISAL ISTRABADI: Well, again, yes, I think the people of Iraq are following this very closely. It is, again, to add another incident which does not involve the United States military directly, but the Blackwater incident that occurred -- or even indirectly, for that matter -- the Blackwater incident that occurred in September, for instance.
These kinds of incidents, where it appears from an Iraqi perspective that there is kind of a philosophy of shooting first and asking questions later, which is certainly true of these civilian contractors, such as that provide security in Iraq, these things are of great concern to the Iraqi people.
They have caused tremendous friction between the governments of Iraq and the United States. And, again, from an Iraqi perspective, Iraqi civilians, Iraqi detainees have been subjected to -- well, some have been killed. Others have been subjected to treatment verging, at least verging on torture.
And yet, again, senior military officers, from Abu Ghraib on, have not been held criminally accountable.
There are multiple ways in which a commanding officer, as the general I know knows, can be held accountable. One is, obviously, if he directly gives an order which is in violation of the law of war.
But another, of course, is under the principle of command responsibility. We have not seen that principle vindicated in any of these incidents. And I think it's very troubling, certainly from an Iraqi perspective.
A message for military troops
RAY SUAREZ: And, General, we've talked about how the Iraqis are watching these cases. What about people who are serving in the military?
Is it important that they have confidence in this system? And does it have an important result on the battlefield that they know that these kinds of cases get adjudicated?
MAJ. GEN. WALTER HUFFMAN: Well, I think it is important that they know that these kinds of cases are adjudicated fairly and justly under our system, because war is difficult enough without having to look over your shoulder to see if someone is going to file charges against you for making an error, when people around you are dying, and bullets are flying in the air, and explosions are going off.
And so it's very important that we do the right thing here and we show that the soldiers and the Marines and airmen that justice will out. It will not be some sort of star chamber proceeding where we hang someone out to dry just to demonstrate that we can do it, but rather that we follow the laws of war, the law of armed conflict, and our own Uniform Code of Military Justice, and do the right thing.
And I think some people say, well, why are we doing any of this? I mean, from the Americans' perspective, some Americans' perspective, that this is war, our troops are there, they're doing the best they can, they shouldn't be held criminally responsible for anything that happens.
But I would say to that, that that's not the American way. The American people expect us to uphold the values that make America the greatest nation in the world. We don't seek moral equivalency with those nations who would do things other than the right way.
And that's why these cases are very important to both sides of the conflict, I think.
RAY SUAREZ: General Huffman, Ambassador Istrabadi, gentlemen, thank you both.