Amid the flurry of arguments in the hearing on several motions earlier in the month, comments by military judge, Colonel Stephen Folsom, USMC, has shed some light on how he will conduct the trial of Lt. Colonel Jeffrey Chessani. According to the judge, it makes no difference whether the Marines in LtCol Chessani’s battalion did or did not kill civilians in cold blood – the issue for the jury will be whether LtCol Chessani should have reasonably suspected his Marines killed civilians in cold blood. “The judge’s theory introduces coherence to the trial. 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,” said Richard Thompson, President and Chief Counsel of the Ann Arbor-based Thomas More Law Center, whose attorneys are defending LtCol Chessani.
Observed Thompson, “A military jury could find LtCol Chessani guilty even if it concluded that his Marines did not kill civilians in “cold blood,” 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 LtCol Chessani should have suspected a violation in order to find him criminally guilty.”
Thompson continued, “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 multi-million dollar investigation, over two years later. What is most disturbing is that LtCol 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 LtCol 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.”
“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,” said Thompson.
The Military Judge has also ordered two more days for motions hearings: one to commence on May 7, 2008, on the Law Center’s “Unlawful Command Influence” and “Selective Prosecution” motions, and the other on June 2, 2008. The court martial was moved to June 17, 2008.
Later this week, the Thomas More Law Center will be filing a pretrial appeal concerning the denial of access to crucial evidence that Law Center attorneys believe is essential to LtCol Chessani’s defense. The appeal will be filed under the All Writs Act, an extraordinary measure seldom used by military defense attorneys.
These latest developments came as a result a motions hearing held on April 15, 2008, where both military prosecutors and defense attorneys argued several motions brought by each side.
In one of the motions, prosecutors attempted to prevent the testimony of LtCol Chessani’s former intelligence office, Major Jeffrey Dinsmore, USMC. However, Colonel Folsom denied their motion, ruling that Major Dinsmore’s testimony provided essential context regarding the enemy’s techniques, tactics, and procedures, including the way the enemy uses civilians as shields and later capitalizes on this tactic for propaganda purposes should any of the civilians become casualties in the crossfire.
It was LtCol Chessani’s experience in counterinsurgency operations and the information he received from his intelligence officer that informed his decisions in Haditha on November 19, 2005 – the very decisions prosecutors are now seeking to criminalize.
LtCol Chessani is charged with failing to properly investigate and report actions involving a house-to-house, room-by-room battle four of his enlisted Marines engaged in on November 19, 2005, after being ambushed by insurgents in the town of Haditha, Iraq. Even though LtCol Chessani immediately reported the events of that day to his superiors, including the death of 15 noncombatant civilians caught in the crossfire, none of his superiors concluded there was reason to conduct a formal investigation. They all rightfully understood the death of civilians as a tragic but unfortunate aspect of urban warfare.
Thus far, judicial proceedings have supported the initial determination of LtCol 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 Law Center has claimed from the outset that the reason why LtCol Chessani or any other officer in the chain of command did not suspect a Law of War violation was simply because there was none. It is tragic that several outstanding military careers have already been cut short by the Pentagon’s rush to judgment to appease the anti-war press and politicians.
“We would have lost the War in the Pacific had these Pentagon officials been in charge during World War II,” said Thompson.
LtCol 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 3 years.
LtCol Chessani is being defended by Thomas More Law Center lawyers Robert Muise and Brian Rooney, as well as detailed military defense counsel LtCol Jon Shelburne, USMC, and Captain Jeff King, USMC.