Officer Recommends Dropping Charges That Marine Murdered Iraqis

Friday, October 5th 2007, 7:40 am

By: News On 6

SAN DIEGO (AP) _ There is no dispute that Staff Sgt. Frank Wuterich and another Marine shot five men after a roadside bomb killed a member of their squad in Iraq, or that he led a house-to-house search that ended in the deaths of more civilians, including women and children.

But whether it was murder, as prosecutors charged, has been challenged not only by Wuterich's defense but by an investigating officer reviewing the biggest prosecution of U.S. troops involving civilian deaths in Iraq.

The officer, Lt. Col. Paul Ware, has recommended Wuterich not be tried on charges of unpremeditated murder in the deaths of 17 of the Iraqis killed in the assault, a defense attorney said Thursday.

Instead, Ware recommended that the former squad leader be court-martialed on the lesser offense of negligent homicide in the deaths of five children and two women, said Neal Puckett, Wuterich's attorney.

Despite the potential setback for military prosecutors, observers said the message was clear: Troops will face greater scrutiny for killing women and children.

``When you see nothing but women and children, you don't fire,'' said Gary Solis, a former Marine Corps prosecutor and judge who teaches law of war at Georgetown University Law Center.

In heated combat, it may be difficult to hold fire, Solis said. ``In this case, they were not engaged. They were not receiving fire.''

Wuterich, 27, of Meriden, Conn., is charged in connection with the squad's actions in the town of Haditha in 2005. In all, 24 Iraqis were killed in the attack.

Ware reviewed evidence against Wuterich in a preliminary hearing known as an Article 32. His recommendation is nonbinding, and the final decision about whether Wuterich should stand trial rests with Lt. Gen. James Mattis, the commanding general overseeing the case at Camp Pendleton.

If Mattis accepts the recommendation for Wuterich and a similar one for one of his corporals, which appears likely based on past practice, no one will face murder charges.

``We're both very pleased and also not surprised, given how the other cases have gone,'' Puckett said. ``There has never been any inkling that any of these Marines lost control or went on a rampage.''

Ware also recommended dropping charges of making a false official statement and telling a squadmate to do the same, Puckett said.

If tried and convicted of murder, Wuterich would face a maximum sentence of life in prison. Puckett said negligent homicide carries a maximum sentence of three years for each count.

A Marine Corps spokesman, Lt. Col. Sean Gibson, declined to comment.

Of four enlisted Marines initially accused in the case, charges have been dropped against Sgt. Sanick Dela Cruz and Lance Cpl. Justin Sharratt. Ware has also recommended charges be dismissed against the third alleged shooter, Lance Cpl. Stephen Tatum.

Charges also have been dropped against two of four officers accused of dereliction of duty for failing to investigate the incident. Lt. Col. Jeffrey Chessani, the highest-ranking of the officers, has been recommended for a court-martial, but Mattis has made no final decision. Another officer, 1st Lt. Andrew A. Grayson, is scheduled for a pretrial hearing.

The killings occurred Nov. 19, 2005, after a roadside bomb hit a Marine convoy, killing the driver of a Humvee and wounding two other Marines. Wuterich and Dela Cruz allegedly shot five men by a car at the scene, then Wuterich ordered his men into several houses, where they cleared rooms with grenades and gunfire, killing unarmed civilians in the process.

At his preliminary hearing, Wuterich said he regretted the loss of civilian life in Haditha, but said he believed he was coming under fire from the homes and so was operating within military combat rules when he ordered his men to assault the buildings.

Dela Cruz, one of Wuterich's former squad mates, testified against him at the hearing, saying that Wuterich shot the men by the car even though their hands were in the air and they were not running. Dela Cruz's charges had been dropped and he had been given immunity to testify.

Wuterich argued the men were fleeing the scene of the bomb, an activity suspicious enough at the time to legitimize killing them.

Though prosecutors have yet to score any convictions, three high-ranking Marines have been censured for failing to investigate the killings. A letter of censure is the military's most severe administrative punishment.