Week one ‘Haditha’ Marine trial analysis Part II: the counter-attack upon houses 1 and 2

United States Marine Staff Sergeant Frank Wuterich stands accused of 9 counts of voluntary manslaughter, 2 counts of assault with a dangerous weapon, 3 counts of dereliction of duty, and “responsible for the deaths of 19 civilians” in Haditha, Iraq. The trial is expected to take four weeks. The prosecution began its case last Monday. If you have not, please first read Part I. Part II completes my analysis of the trial to date and includes key testimony that the media has failed to report. Part II begins immediately after SSgt Wuterich has eliminated the threat posed by five military-aged men moving near a white car across the road from the lead Humvee in his resupply convoy. [Updated January 20, 2012]

Approximately 200 feet behind Wuterich, a buried IED had been set off. The driver of the 4th Humvee was dead and two more lay wounded. From about 75 ft away, Wuterich had eliminated by fire the threat posed by five military-aged men near a white car. He turned, went to the 3rd Humvee, radioed-in HQs a situation update, and then went to his wounded Marines. “Doc” Whitt, Tatum, and Salinas preceded him, while under enemy fire, in reaching the stricken vehicle.

Salinas testified Thursday he exchanged fire with a man to his south on the side of house #1:

“Rounds were impacting on the fourth vehicle. I went back to render aid to my Marines that were wounded. There was destruction everywhere. There was a fog, a haze. When the smoke was clearing out I could see an object. It was LCpl Crossan. He was missing a couple of fingers. His body armor was obstructing his airway … “I got as low as I could because I heard rounds coming. It was the impact of the rounds hitting the high back. I got low on the deck,” he said.

Salinas described an ugly, bitter war, a no-quarter environment where innocent victims found themselves on November 19, 2005. Al Anbar Province lived [what] was a waste land after two bloody years of internecine warfare.

“On the outside of the house, on the east side of the house, I saw a small silhouette. Things look small that far away. It was a tall man. There was rounds impacting around me, so I engaged him. I used my M-16. I shot more than twice but not the entire magazine,” he told prosecutor Lt Col Sean Sullivan. “Then I took my 203 (M-203 40mm grenade launcher attached underneath his rifle) and fired rounds on the house — fired two or three.” It was while trying to find Crossan’s fingers, he explained.

LT William Kallop was Wuterich’s platoon leader and led the quick reaction force to Route Chestnut in Haditha. Kallop testified Friday that:

“…he believed the ambush was the beginning of the long anticipated counterattack by insurgents who had infiltrated into the city. … Wuterich gave him a brief report. After making sure the squad leader of the Quick Reaction Force began evacuating the two wounded Marines still lying on the road, he gave Wuterich the order to “clear South” to suppress incoming fire the ambushed Marines had observed coming from what later became known as House 1 and 2.”

The Los Angeles Times reported Saturday:

“[Kallop] believed insurgents inside the house were firing on Marines and thus the house could be deemed “hostile.” … A Marine lawyer, testifying after Kallop, gave a different interpretation of the rules of engagement. Maj. Kathryn Navin, who had lectured Marines before they deployed, said a house cannot be declared hostile unless the people inside are known to have “hostile intent” or have committed “hostile acts.” But Kallop said that in training at Camp Pendleton and March Reserve Air Base, and at briefings delivered in Iraq, Marines were not told they needed to identify individual targets as threatening when assaulting a “hostile” structure.

What the Times did not report was Major Navin had previously testified a house “could be declared ‘hostile.'” That fact came out during cross-examination when Navin was asked to read a transcript of her own testimony from August 2007, according to trial observer Heidi (Hamilton) Anselmo who I spoke with by phone last night. When asked by defense counsel to explain her previous testimony, Navin offered, “Maybe I got mixed up.”

President Barack Obama, former President George W. Bush, and literally hundreds of U.S. military officers would be facing prosecution if [Major Navin’s interpretations of] the Marine Corps’ ROE applied to them; they have ordered airstrikes upon houses without first personally identifying that everyone within them had “hostile intent” or had committed “hostile acts.” While at the ambush site, Kallop received reports from Wuterich and other Marines of enemy fire coming from house #1. Salinas had marked it as a target with M203 grenades. It was then clear to Kallop, Wuterich, and Salinas the enemy was using the house for military purposes and eliminating the threat posed to their Marines was necessary self-defense (See the ROE card they carried.)

Intelligence officer Major Don Dinsmore will testify today at the trial. He fought what is known as the ‘intelligence battle’ for 3/1 that day in Haditha, recorded in real time the enemy’s positions and activities, assessed the information, and sent a stream of intelligence to the Marines on the ground. Each of Kilo Company’s four platoons fought battles within a half-mile of the initial IED blast. Before you read media reports after Dinsmore testifies, perhaps you should first read Nat Helm’s report about his July 2007 interview of Cpl Joe Haman. His squad was manning a combat observation post that morning 600 meters south of the IED-initiated ambush. Including Haman, 7 Marines and a Navy Corpsman were wounded during a “grenade throwing contest” with insurgents later that morning:

“Somebody said his [Terrazas] number, but we didn’t know who it was. We just knew somebody had been killed or wounded,” Haman said. … About 30 minutes before Haman’s squad was called into action … Then a nearby helicopter reported to headquarters that a large group of insurgents were fleeing out the back of the small cluster of houses now under counter-attack by Wuterich’s squad. The pilot spotted the insurgents when they abandoned the houses where the civilians died, Haman said.”

During his first combat action, Wuterich led three combat veterans of the 2nd Battle of Falluja in a combat assault upon house 1 and 2 to eliminate the threat. The Haditha massacre of innocent civilians was designed by lesser men; justice needs brought to them for that war crime. In Haditha, honorable Marines fought as they were trained. The enemy is solely to blame for every death that occurred that day; Al Qaeda and Sunni insurgents hid among and initiated fights behind defenseless women, children, and old men.

Regardless of anyone’s opinion about the need to invade Iraq, America owed Frank Wuterich far better than a court-martial. [He led] Marines caught within an ambush in a series of counter-attacks to defeat the enemy while complying the best he could with ambiguous Rules of Engagement.

SSgt Wuterich lived up to his enlistment oath to “obey the orders of the President of the United States and the orders of the officers appointed over” him, at dire risk to his own life. America sends its sons and daughters to war to fight, win, and survive, not on suicide missions. They bravely fight counter-insurgent warfare on our behalf and must live with haunting memories of collateral damages. The criminalization of our warriors must end.

Week one ‘Haditha’ Marine trial analysis Part I: An ambush on Route Chestnut and the white car

United States Marine Staff Sergeant Frank Wuterich stands accused of 9 counts of voluntary manslaughter, 2 counts of assault with a dangerous weapon, 3 counts of dereliction of duty, and “responsible for the deaths of 19 civilians” in Haditha, Iraq. The trial is expected to take four weeks. The prosecution began its case last Monday. What follows is key testimony that the media has failed to report and my analysis of the trial to date. [Note: This analysis was updated on January 17, 2012.]

The ambiguous Rules of Engagement card carried by our Marines that day included these requirements: “Do not fire into civilian populated areas or buildings unless the enemy is using them for military purposes or if necessary for your self-defense. Minimize collateral damage.” Near its end, it correctly defined the mission: “Attack enemy forces and military targets. Spare civilians and civilian property, if possible.”

Tuesday, LCpl Stephen Tatum testified:

Tatum acknowledged the night before the convoy his squad had been briefed to expect trouble. They were warned to watch out for snipers active everywhere in Haditha and the infamous white cars that insurgents were using as Vehicle Borne Improvised Explosive Devices (VBIEDs).

SSgt Wuterich and Sgt Sanick Dela Cruz were undoubtedly at the mission briefing. White cars would be on their minds the next morning — November 19, 2005 — when Kilo Company, 3rd Battalion, 1st Marine Regiment was at war. [Update 7:25 PM: LT Kallop also testified that he conducted the mission briefing; Wuterich and Dela Cruz were present.]

On Friday, LT William Kallop, Kilo Company’s 3rd platoon and quick reaction force (QRF) leader testified:

He told the eight member panel that intelligence reports rolling in prior to the ambush indicated that the al Qaeda-led insurgency was regrouping around Haditha to try and reestablish control of the embattled region. “There was fire around the city at this time. One time Iraqi soldiers fired and told us they saw insurgents running. One of our Marines had shot an individual running,” Kallop told prosecutor Maj. Nicholas Gannon. [I will return to his testimony during my analysis of the counter-attack upon houses 1 and 2.]

3/1 took over the 90,000-person city of Haditha without firing a shot in early October 2005. Over the next 6 weeks, they discovered and eliminated 190 IEDs, and sent two-dozen suspected insurgents off to higher HQs for interrogation. (Also see Al Qaeda in Haditha: The Battle the Media Ignored.) On October 7, 2005, CNN reported, “The city itself is almost literally an improvised explosive device (IED) field.” Indeed. The company that K Co 3/1 replaced the previous month sustained the highest percentage of casualties of the entire Iraq War: 26 Lima Company 3/25 Marines were dead and another 32 had been wounded. (Also see The Battle of Haditha.)

Ambush on Route Chestnut

An eerie quiet was broken at 7:15 a.m. on November 19. 2005. A white car carrying 5 military-aged men (MAMs) had approached SSgt Wuterich’s 4-Humvee resupply convoy from ahead and been waived to give way by LCpl Justin Sharratt who was manning his M240G Machine Gun in the lead Humvee’s turret. The white car stopped off to the side, inside the squad’s security perimeter, just as a buried IED was set off beneath the last Humvee in the convoy, splitting the vehicle and LCpl Miguel “TJ” Terrazas in half, and wounding Lance Corporals James Crossan and Salvador Guzman. The blast initiated an ambush and the squad immediately came under small arms fire. Every Marine’s weapon was not immediately turned on the white car — the five men inside it were not immediately turned into goo. SSgt Wuterich had to rapidly make a threat assessment, secure the squad’s defensive perimeter, suppress enemy fires, and defend his Marines caught in that kill zone.

The enemy’s complex attack would soon embroil all of Kilo Company, leave 1 Marine dead, and wound 10 Marines and 1 Navy Corpsman.

SSgt Wuterich had spotted the white car stopped ahead of him. He followed his training. First he radioed higher HQs of the attack, reported his casualties, and requested that the QFR respond to his location. [Correction made January 17, 2012: As Wuterich was driving, LCpl Graviss actually radioed-in the initial report and he overheard it. Wuterich radioed-in a second report soon after the encounter with the white car.] He dismounted the 3rd Humvee and approached the white car from the east with his M-16 at the ready.

Wuterich has previously stated that when he was still more than 30 meters away, three MAMs dismounted to the south from the passenger side, and the other two dismounted to the north, from the driver’s side, moved west away from him, and then turned south around the back of the white car. He saw that Sgt Dela Cruz was north across the road, heard him shouting commands at the five, and the men were not complying. A chest-high dirt pile was but a few feet south of them and in the direction the five were moving.

LCpl Tatum, Cpl Hector Salinas, and Navy Corpsman HN1 Brian Whitt rushed from their Humvees, under enemy fire, to the stricken vehicle.

Salinas testified Thursday that as he passed close behind Dela Cruz, he saw him aiming his M-16 at the five MAMs, and heard him shouting “Stop! Stop!” at them in Arabic. As Nat Helms reported, Dela Cruz’s testimony Wednesday seemed incredible:

It is either the fourth or fifth version of his observations since he failed a polygraph, and then elected to accept immunity from prosecution, counting the two versions he presented at trial today. … “They were standing there looking around, some with their hands in the air and some behind their heads,” Dela Cruz said while demonstrating the decedent’s movements. “One of the Iraqis in the middle dropped, sir. Then they were falling back behind the car. I looked over at Sgt. Wuterich – Sergeant Wuterich was kneeling in a firing position, sir. I looked back at the Iraqis and I didn’t see [any] more of them.”

Why would Dela Cruz have shouted “Stop! Stop!” in Arabic at the five if, “They were standing there looking around?”

Those Marines had been trained on defending against VBIEDs and reminded the night before on how to identify them on the battlefield. If they perceived a vehicle and those inside it as threats, they were to engage the occupants before the device could be set off and from a distance.

SSgt Wuterich perceived a threat and engaged it by fire.

Part II: The counter-attack upon houses 1 and 2.

Jury seated in last ‘Haditha’ Marine trial

The North County Times reported on Friday’s progress in the court-martial of the last U.S. Marine to stand trial in connection with the November 19, 2005 civilian deaths in Haditha, Iraq:

An eight-member jury was seated at Camp Pendleton on Friday to decide the fate of a staff sergeant charged with war crimes in the deaths of 24 Iraqi civilians during the height of the conflict.

The jury of four officers and four enlisted men will hear opening statements on Monday in the trial of 31-year-old Staff Sgt. Frank Wuterich.

Wuterich is accused of being responsible for 19 of the 24 Iraqi deaths that came after his Kilo Company squad from the base’s 3rd Battalion, 1st Marine Regiment, searched for the people responsible for a roadside bombing that killed one Marine and injured two others on Nov. 19, 2005, in the city of Haditha.

Wuterich has pleaded not guilty to charges of manslaughter, assault and dereliction of duty for failing to follow the rules of engagement stemming from the more than 6-year-old incident. He faces a prison sentence of up to 150 years if convicted of all the charges.

Controversy surrounding the prosecution and its unpopularity within the ranks of the Marine Corps was evident at the close of Friday’s proceedings when the lead prosecutor, Maj. Nicholas Gannon, told the military judge that all his witnesses were reluctant to aid the government.

“I can’t think of a single witness that I would say is desirable of being helpful to the United States,” Gannon said.

See Defend Our Marines for reports by Nat Helms who is attending the trial.

Attorneys in military cases are allowed to request the removal of potential jurors — called “panelists” in military law — for cause or simply because they don’t like what the panel candidates had to say. The Colonel, deemed too close to the convening authority, a Master Gunnery Sergeant who provoked somebody’s ire, and a Gunnery Sergeant who mentioned Hiroshima and Haditha in the same breath were stricken from the roles after the prosecutors and defense attorneys jousted over their continued presence.

During the voir dire proceeding, almost all of the Marines questioned by Sullivan and Faraj stumbled through explanations of what the Rules of Engagement said in November 2005, offering vague impressions of how they were changed after former Marine Commandant General Michael W. Hagee visited Iraq in 2006 following the Haditha fiasco. The potential panelists had an equally tough time explaining when and why escalation of force can be implemented, and what to do when apparent non-combatants find themselves on the firing line. Each of those questions represent fundamental building blocks the panelists must consider when deciding the guilt or innocence of Wuterich, a rookie squad leader who commanded the Marines that counter-attacked their ambushers.

The first day of the court martial of the last ‘Haditha’ Marine

The court martial of SSgt Frank Wuterich began Thursday and may take several weeks to conduct. It will continue Friday and reconvene Monday morning at 8 am PST.

I spoke with Nat Helms this evening. He is attending the trial at Camp Pendleton: (Updated)

Jury selection is today: eleven enlisted and officers and three alternates will go through UCMJ version of the Voir Dire selection. LtCol. David Jones presiding. Panel must have at least five and can have seven or nine members although somewhere in the middle is likely.

Nat will do his best to post a daily diary, his takeaway each day of the trial, by 11 pm Eastern, at Defend Our Marines. He told me there are 11 Marines being considered for the panel, 5 officers and 6 enlisted. All but 1 of the 11 are “grunts” with combat experience.

In related news, the trial judge dismissed four of the (non-manslaughter) charges in the case. SSgt Wuterich still faces the most serious charges, 9 counts of voluntary manslaughter, two counts of assault with a dangerous weapon, and three counts of dereliction of duty. The dropped charges, misconduct for allegedly asking his subordinates to lie and what amounts to recklessly endangering civilians, were dropped due to procedural errors; it will likely not inhibit the prosecution’s ability to use related evidence at trial.

One interesting item in today’s news reports was the lead prosecutor told reporters Wuterich was “responsible” for 19 deaths. That was a strange statement to make. Major Gannon mentioned in the same breath that Wuterich was charged with only 9 counts of voluntary manslaughter, to include the 5 men who dismounted a nearby white car immediately after an IED ripped through the squad’s trail Humvee. Originally, SSgt Wuterich was charged with 24 counts of murder.

Do the math.

Four of those counts were dropped after the convening authority determined those killed in house #4 presented a clear threat. Five counts of voluntary manslaughter are for those killed near the white car. That leaves 15 deaths to be accounted for, but 5 (white car) and 15 equals 20, not 19, the number for which Wuterich is allegedly “responsible.”

Opening arguments, the competing theories, have not been presented. Will the prosecutors concede that the man killed after he bolted from house #1 (while it was being swept by fire) towards house #2 also was a clear threat? If so, it will present the defense with several interesting arguments … Enough said as my investigative duties and career in military law enforcement ended before some who are currently serving were born.

SSgt Wuterich stands in the dock of justice facing the possibility of conviction and a long prison sentence. Yet all charges against six of the eight Marines involved in the so-called Haditha massacre were dismissed. And the seventh Marine was acquitted of all charges during his 2008 court martial.

Another strong ray of hope might be found in the concluding statement made by Article 32 investigating officer Lt Col Paul Ware:

Finally, although I believe the Government will fail to prove beyond a reasonable doubt that SSgt Wuterich committed any offenses other than dereliction of duty, due to the serious nature of the charges, I recommend referral to a general court martial.

Pass the word, stay tuned into Defend Our Marines, and Semper Fi.

Name the LPD 26 the USS Michael A. Monsoor

The USS New York, USS Somerset, and the USS Arlington are San Antonio Class amphibious transport-dock ships and each was named to honor the heroes and victims of the 9/11 attacks upon our Nation. Yet a Washington Times editorial this morning points out (and strongly takes issue with) the decision by Navy Secretary Ray Mabus to name the Navy’s newest ship from that class, the LPD 26, the USS John P. Murtha:

“This is a slap in the face to every service member who bridled when Murtha publicly accused Marines in Iraq of intentionally killing women and children in cold blood. … The USNS Benavidez is named for Army Master Sgt. Roy P. Benavidez, who, wounded and under heavy assault, saved the lives of eight men at Loc Ninh in South Vietnam in 1968. He was awarded the Medal of Honor. Likewise the USNS 1st Lt. Harry L. Martin, which is named for a Marine who was mortally wounded on Iwo Jima while leading his men in a counterattack against a massed Japanese suicide charge. The USNS Shughart is named after Sgt. 1st Class Randy Shughart, killed at the Battle of Mogadishu in 1993. These are the types of veterans who should be given such an honor, not a political hack whose most successful defensive maneuver was saving his pork-laden earmarks from surprise attacks of fiscal responsibility.”

Secretary Mabus should instead name the LPD 26 the USS Michael A. Monsoor:

Master-at-Arms 2nd Class (SEAL) Michael A. Monsoor

United States Navy Congressional Medal of Honor citation:

The President of the United States, in the name of the Congress, takes pride in presenting the Medal of Honor, posthumously, to Master At Arms Second Class, Sea, Air and Land, Michael A. Monsoor, United States Navy. For conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty while serving as Automatic Weapons Gunner for Naval Special Warfare Task Group Arabian Peninsula, in support of Operation IRAQI FREEDOM on 29 September 2006.

As a member of a combined SEAL and Iraqi Army sniper overwatch element, tasked with providing early warning and stand-off protection from a rooftop in an insurgent-held sector of Ar Ramadi, Iraq, Petty Officer Monsoor distinguished himself by his exceptional bravery in the face of grave danger. In the early morning, insurgents prepared to execute a coordinated attack by reconnoitering the area around the element’s position. Element snipers thwarted the enemy’s initial attempt by eliminating two insurgents. The enemy continued to assault the element, engaging them with a rocket-propelled grenade and small arms fire. As enemy activity increased, Petty Officer Monsoor took position with his machine gun between two teammates on an outcropping of the roof. While the SEALs vigilantly watched for enemy activity, an insurgent threw a hand grenade from an unseen location, which bounced off Petty Officer Monsoor’s chest and landed in front of him. Although only he could have escaped the blast, Petty Officer Monsoor chose instead to protect his teammates. Instantly and without regard for his own safety, he threw himself onto the grenade to absorb the force of the explosion with his body, saving the lives of his two teammates. By his undaunted courage, fighting spirit, and unwavering devotion to duty in the face of certain death, Petty Officer Monsoor gallantly gave his life for his country, thereby reflecting great credit upon himself and upholding the highest traditions of the United States Naval Service.