Tuesday, December 26, 2006

U.S. Media May Hope Haditha Charges Are Dismissed.

The following superb article is cross-posted from the Democracy Project, with the permission of its author, Bruce Kesler:

For two reasons, the U.S. media may hope the Haditha charges against eight Marines are dismissed, or don’t come to trial.

First, it will allow those within the media who write that the U.S. is guilty of atrocities, an evil plan gone awry, or even just that the whole engagement is a tragic miscalculation, to claim that the U.S. military doesn’t care or is engaged in a cover-up.

Second, the U.S. media would avoid itself possibly being put on trial for its shortcomings in coverage of the Iraq war. To the extent that the prosecutors’ case relies upon the Iraqi stringers and suspect “witnesses” used by U.S. media, their case will be both weak and will publicly expose the grave shortcomings of the U.S. media’s operations in the Iraq war zone – in effect, functionally often acting as useful adjuncts to our enemies and the secure and free future of Iraq and the region.

As I wrote last June:

Among the only hard facts known is that the military took this incident seriously from the start by launching an investigation so thorough that even the hostile Iraqis in that village have given it respect. That’s more than media commentators give to our nation, its military, or the handful of Marines actually involved by trotting out inapplicable and inappropriate comparisons to My Lai, an exception itself, in order to bemoan and undermine our entire mission in Iraq. They can say all they want that they are trying to uncover facts, and they are, but the prominence and surrounding fluff is simply irresponsible.

There are four interrelated aspects to the outcome of the charges:

Did the Marines exceed the rules-of-engagement? The prosecutors chose charges of unpremeditated murder, excess force and lack of care for civilian casualties, or 2nd degree in civilian courts, and an additional charge of negligent homicide for one Marine, lack of care, equivalent to manslaughter in civilian courts. The accusation of premetitated revenge for the IED slaughter of one of their comrades was not supported by their investigation. For a discussion of rules-of engagement, see here.

As one military law expert says:

The prosecution must be able to conclusively state "what happened, why did they do what they did, why did they use force and did they believe they were being engaged," said Col. Dave Wallace, who teaches law of war at the U.S. Military Academy at West Point, N.Y.

Here, I wrote about the Marines’ side of the story:

For two-weeks the newspapers and TV of the world have been filled with heart-rending but conflicting narratives by Iraqi “witnesses” to a Marine massacre at Haditha. Editorialists and columnists, even ones not hostile toward the Iraq war or Marines, have stampeded to fill their space with a little obligatory caution or caveat as they condemn the Marines for a massacre, for going off the handle, for overreacting to the stress of war.

Now, for the first time, one of the Marines directly involved has spoken up. The Washington Post, to its credit, carries his description of events on the front-page.Rules of engagement were followed, as the Marines chased terrorists through the houses where they’d purposely hidden among civilians. This is in an area known for hostile and harboring civilians. Civilians were killed.

With all regrets for that, at least no further Marines were killed by holding a cotillion that some armchair commentators imagine would be appropriate. (I’d like to see them dance in any dangerous circumstances like these.)It well may be possible that there’s more to be found out and to clear up.It’s well past time the media waited to find out before jumping to more conclusions, and harming the honor of our Marines, our country, and our ability to wage a war.

If they don’t, their purpose is very clear.

What is the evidence? The military says this was its most extensive investigation possible. There’s little reason to doubt that. However, in the absence of the families of the Iraqis allowing exhumation of the bodies, much reliance is upon after-the-fact examinations of photos and the scene, along with questioning of self-declared witnesses whose testimony has for some changed over time and is contradictory among others. Further, some had preknowledge of the attack upon the Marines and ties to the enemy. (A summary of the weaknesses of known evidence is here.)

I wrote about some of the witnesses self-contradictions, and reporting, here:

Sounds like a "cover-up" of a conspiracy to me, the cover-up by the MSM lynch mob and the conspiracy by the Iraqis culpable or seeking to undermine America's forces.

What is the trial risk? In any case, there are many trial risks, or litigation risks, which may tilt the judgment one way or the other. The prosecutors’ charges exceed what was expected by military law experts. Their aggressiveness may be a pre-trial ploy to scare the Marines and their attorneys into a plea deal. Another military law expert says he is surprised by the aggressiveness of the charges:

Gary Solis, a former staff judge advocate at Camp Pendleton who now teaches military law at Georgetown University, said the charges announced Thursday appear very aggressive.

"They say that the Marine Corps takes very seriously its obligation to conduct itself in accordance with the law," he said during a telephone interview….Solis said he expected the troops accused in the shooting deaths of the Iraqi civilians would face manslaughter and not murder charges.

"I was very surprised by the aggressive nature of that charge," he said, adding that that will be much harder to prove than manslaughter.

Lastly, to what extent has the evidence accumulated been tainted by the reporting of the events of that day and its aftermath? Here’s where the U.S. media may find itself on trial.

The next step in the case is for the prosecutors’ case to be reviewed by Lt. General James Mattis, Marine commander for Iraq. He will decide how the case will proceed:

Now that the charges have been filed, the clock is ticking on the judicial process. Barring any requests for delays by the defense, the government has 120 days to start court-martial proceedings against the men if Mattis deems a court-martial is the proper course to follow.
The public's first look at the government's case could come in pretrial court sessions [emphasis added] known as Article 32 hearings, which are the rough equivalent of a preliminary hearing in civilian courts.

After those hearings, Mattis will receive a recommendation on whether the cases should be sent to military trials, known as courts-martial, or to administrative hearings, which are less serious and do not result in jail time. He also will have the option at that point of dismissing or altering the charges.

As emphasized above, how good an evidentiary case the prosecutors actually have is still unknown.

Here’s a key point: Much of the proceeding and outcome of the case will be shaped by Lt. General James Mattis. The L.A. Times offers some useful insights.

Lt. Gen. Mattis is well known for upholding the Marine tradition of fire discipline. In 2003, as commander of the 1st Marine Division, he led troops into Iraq. To each Marine and sailor he provided a one-page order telling them to destroy Iraqi forces but to show compassion for civilians and prisoners: "Engage your brain before you engage your weapon."

Recently, Lt. Gen. Mattis (“nicknamed ‘Mad Dog’ by his troops, prefers speed and a relentless attack style”) reminded his Marines their mission is threefold, to train Iraqi forces, win over civilians, and to kill the enemy, an especially difficult combination, as he admits:” In an e-mail to The Times this week, he referred to the ‘morally bruising conditions of Iraq’ where it is often difficult to distinguish friend from foe.”

In a recent trip to Marine outposts in the expansive Al Anbar province, Mattis talked to Marines about training the Iraqi army and winning support from civilians. But he also mentioned the insurgent threat in the province.

"This is not sectarian violence," he told them. "This is Al Qaeda in Iraq. We expect you to kill them."

Lt. Gen. Mattis is also known for allowing the military justice system to unfold, and tempering justice with battlefield realities.

Lt. Gen. James N. Mattis, who brought the criminal charges in the Haditha case, has shown no reluctance to take hard-nosed actions against Marines.

Mattis, commander of the Marine Corps Forces Central Command, in 2003 initiated an investigation of the treatment of Iraqi prisoners by Marines. The investigation, which came before the Abu Ghraib prison scandal, led to the court-martial convictions of a sergeant and a major in the death of a prisoner and to a revision of Marine procedures for handling prisoners.
He also ordered the investigation that led to murder charges against Lt. Ilario G. Pantano in the 2004 killings of two Iraqis, probably the most high-profile case of alleged misconduct by Marines until the November 2005 deaths of 24 Iraqis in the town of Haditha. Pantano was acquitted.

But Mattis' handling of a case involving the town of Hamandiya, in which seven Marines and a Navy corpsman were charged with dragging an Iraqi from his home in April and killing him, suggests that he is willing to show leniency for junior enlisted Marines who admit wrongdoing. In an e-mail to The Times this week, he referred to the "morally bruising conditions of Iraq" where it is often difficult to distinguish friend from foe.

The Hamandiya case also suggests that he may be less willing to be lenient with more senior enlisted personnel for not showing leadership. All eight defendants in Hamandiya were charged with capital murder, which could have brought the death penalty.

Mattis allowed four of the eight to plead guilty to reduced charges and receive sentences of 12 to 21 months in the brig. He vetoed the military judge's recommendation that the four be given dishonorable discharges.

The four defendants with greater seniority and allegedly more culpability in the killing are to stand trial next year.

Lt. General Mattis has also displayed his awareness of another critical battlefield in Iraq: the information war, which in this pre-Christmas interview he says the U.S. media has abdicated to the enemy.

Mattis: I was talking to a lieutenant in Haditha, he told me that because they are now all connected nowadays in their FOBs, he could read stories about Haditha. He said, 'I guarantee you there has not been a reporter in Haditha in my last two and a half months here.'

We're seeing, I think, an unwitting passing of the enemy's message, uncritical, unwitting passing of the enemy's message because the enemy has successfully denied the Western media access to the battlefields.

I'm not sure what Lloyds of London is charging now, I think it's over $5,000 a month insurance for a reporter or photographer to go in. But the murder, the kidnapping, the intimidation means that, in many cases, we have media folks who are relying on stringers who are Iraqi.

Now you can have any kind of (complaint) about the American media or Western media you want, but there is at least a nod, an effort toward objectivity. The stringers who are being brought in, who are bringing in these stories, are not bringing that same degree of objectivity.

So on the one hand, our enemy is denying our media access to the battlefield, where anything perhaps that I say as a general is subject to any number of interpretations, challenges, questions, but the enemy's story basically gets there without that because our media is unable to challenge them. It's unwitting, but at the same time, it can promote the enemy's agenda, simply because there is an apparent attempt at objectivity.

Reporter: Would you like to see more Western media there then?

Mattis: Oh, we would be happy to have more Western media out there. We've had Al-Jazeera out with our troops.

To the extent that the prosecutors’ case relies upon the reports of the events by U.S. media, instead of hard forensic evidence, the U.S. media will be on trial.

I’ve written repeatedly about the problems of reliability presented by the U.S. media’s reliance upon stringers and of veracity presented by reliance upon unqualified sources.

For example, here:

So, why hasn’t the U.S. media been investing the resources needed to adequately cover the whole story in Iraq? Cheapness. It costs upwards of $30-thousand a month, above wages, to keep an American reporter in the field in Iraq.As a recent analysis of media economics points out:"[N]ewspapers remain a surprisingly robust business and generate tremendous amounts of cash every year….[N]ewspaper chains have become relentless in their pursuit of cost-cutting. Although much of this has been bad for the art of journalism, it has been very good for the bottom line."Turning responsibility for what the American people hear to inexpensive Iraqi stringers is simply grossly irresponsible. Galloway [Joe Galloway, recently retired military correspondent for Knight Ridder] tells me that many aspire to be good journalists, and many are undoubtedly brave. However, we just don’t know their loyalties in too many cases.

In Editor & Publisher, I wrote:

If truth is journalism’s goal, cheapness within journalism undermines it. Embedded reporter Paul McLeary wrote in Columbia Journalism Review not long ago, “In Iraq, the untold stories pile up, one by one by one,” because “there just aren’t enough of them [journalists] to give the conflict its due.”I turned to Joe Galloway’s 41years of experience in military reporting to see what can improve military-press relations. Some 692 journalists embedded during the invasion of Iraq. Interviews by the Institute for Defense Analysis reported, “The participants’ overall assessment was that it was successful and that it benefited the military, the media, the public, and the military families.”

Yet, the program has withered to several dozen embeds today.Why? Galloway [who is opposed to the U.S. engagement in Iraq] says there’s “growing resistance from the military to [those] embeds” it considers negative. Meanwhile, the $30,000 or more per month (above wages) cost of supporting reporters in Iraq is more than most media organizations want to spend, even though this is a major war and more important than many other beats.Media bureaus in Baghdad now operate largely through inexpensive Iraqi stringers. I asked Galloway how such Iraqis are vetted for reliability. Galloway said that in the case of Knight Ridder, the bureau chief is fluent in Arabic as her primary check.

Hardly sufficient cause for confidence!

Here’s three posts (here, here and here) about Iraqi sources relied upon in the reporting from Haditha, who hardly offer confidence in their charges against the Marines. Read them.
Surely, the defense attorneys are reading them. If the Haditha charges go to trial, this may be quite a trial – and the U.S. media’s failure to take proper care in a war zone be exposed, moreso than among the Marines.

Bruce Kesler
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