The Investigating Officer of Haditha Marine LCpl Stephen Tatum is now recommending that no court martial be done on the Marine.
An investigating officer has recommended that a Marine Corps general drop all charges against a Marine accused of murdering civilians in Haditha, Iraq, finding again that the 2005 shootings were “tragedies” but that the Marine did not violate the laws of combat.
Lt. Col. Paul J. Ware wrote in a 29-page report that there is insufficient evidence to show that Lance Cpl. Stephen B. Tatum did anything other than follow Marine Corps rules when he killed women and children in two houses in a residential neighborhood in Iraq on Nov. 19, 2005. Ware found that Tatum followed orders to attack the houses and shot a group of civilians only because another Marine in the unit was already shooting at them.
“What occurred in house 1 and house 2 are tragedies,” Ware wrote. “The photographs of the victims are heart wrenching, and the desire to explain this tragedy as criminal act and not the result of training and fighting an enemy that hides among innocents is great. However, in the end, my opinion is that there is insufficient evidence for trial. LCpl Tatum shot and killed people in houses 1 and 2, but the reason he did so was because of his training and the circumstances he was placed in, not to exact revenge and commit murder.”
Jack B. Zimmerman, a civilian attorney for Tatum, said he is pleased with the report and will await Mattis’s ruling before commenting further. Should Mattis dismiss the charges, it would leave pending murder charges in the case against one enlisted Marine, Staff Sgt. Frank D. Wuterich.
You can read the IO’s report here in PDF format. Some interesting passages:
In most homicide cases, a killing can be presumed to be unlawful absent evidence to the contrary. That is not the same as placing a burden of raising an affirmative defense upon the accused but recognition that in our society, killing another is not normally legal or authorized. There are two obvious exceptions to which the presumption of a killing is not lawful, law enforcement and military combat operation. Marines engaged in combat are expected to kill. This legal authority to kill, however, is certainly not absolute. Our Marine Corps makes great efforts to ensure Marines are educated and trained on the limits of authority to kill under the rules of engagement.
In a homicide case arising from actions by a Marine within a combat environment, the government may not rest on the normal presumption that killing is wrong and therefore burdened with proving that the killing was in violation of the rules of engagement. The ambiguity that arises in this case is not what the rules of engagement require, but how those rules are applied for criminal liability. Is the requirement to identify hostile act and intent based on subjective or objective criteria? If it is subjective, does that belief have to be honest and reasonable or just honest? If it is an objective test, is that based on the experience of a basic trained Marine or a combat veteran? Government witnesses indicated that the test was subjective. My opinion is that the test should be a subjective, honest and reasonable belief so that Marines in combat that are acting in good faith have the protections of the rules of engagement if they honestly perceive hostile acts or intent and make a decision to use deadly force that in hindsight, with time to reflect, others might consider such a decision to be a mistake.~~~
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.
Using the government’s theory that positive identification was required within the room of house 1 when LCpl Tatum heard a noise he and his fellow Marines believed was an AK-47 racking, they would be authorized to throw a grenade into the room, but when entering the room they would be required to distinguish between enemy and innocents within the room. Such a result seems counter intuitive.~~~
Such restraint might be good practice for law enforcement or special operations forces conducting hostage rescue operations, but not in combat. In combat Marines are trained to neutralize the enemy with overwhelming force. If we adopt the theory of liability espoused by the government, we in tum are placing innocents in grave danger as they will become truly effective shields against our Marines engaging the enemy.
Murtha cares little, it seems, to the "protections of the rules of engagement." He cares little for the men who were fighting and dying over there because if he did you could damn well bet he wouldn’t go half cocked and call them murderers. He wanted to score political points. Thats it in a nutshell. Just like Scott Beauchamp and TNR wished to show that Iraq is bad because they force our soldiers into becoming bloodthirsty robots we have Murtha wanting to show the same thing, on the backs of our Marines:
Think we’ll hear an apology from the EX-Marine?