CAMP PENDLETON, Calif. -- Prosecutors and defense attorneys appealed yesterday to a hearing officer's experience as an infantry battalion commander in their final arguments of the preliminary hearing for Lt. Col. Jeffrey Chessani, charged with failing to investigate the killing of 24 civilians in Haditha, Iraq, by Marines under his command.
Lt. Col. Sean Sullivan, the lead prosecutor, told the hearing officer, Col. Christopher Conlin, that sending Chessani to a court- martial would show that Chessani is being held to the same high standards that "99.99 percent of Marine officers and enlisted" men obey.
"You're an experienced battalion commander," Sullivan said. "You were in theater. You know."
But defense attorney Robert Muise said Conlin knows that sending Chessani to a court-martial would hurt the morale of other commanders. He asked that Conlin recommend that the charges be dismissed and that Chessani be allowed to retire.
"The reality is, you know, sir, you served in Iraq, that civilian deaths are a regrettable consequence of this war," Muise said.
Conlin will make his recommendation to Lt. Gen. James N. Mattis, commander of Marine Forces Central Command. If there is a court-martial, Mattis will pick the jury pool and, if there is a conviction, Mattis will decide whether the conviction will stand.
In the military legal system, many major decisions are left to nonlawyers. Mattis emphasized this by picking Conlin instead of an attorney as the hearing officer for Chessani, who stands accused of dereliction of duty and violating a direct order for not launching a formal investigation into the Nov. 19, 2005, killings. At the time, Chessani commanded the 3rd Battalion, 1st Regiment. He is the highest-ranking member of the armed service to be charged with misdeeds during the Iraq war.
Of seven hearing officers selected by Mattis to hear cases for Haditha defendants, Conlin is the only one who is not an attorney.
At several points over the past weeks Conlin asked questions that seemed to reflect disapproval of Chessani's actions. But he also did things that suggested that he is concerned about the effect of the Haditha case on the morale of other Marines.
He spoke warmly to witnesses about their careers. He apologized to one for involving him in "legal mumbo-jumbo." When a colonel testified by phone from Saudi Arabia, he greeted him with, "Hey buddy, Chris Conlin here, how are you doing?"
Conlin also refused to let a Benedictine monk testify about the Islamic religion for fear that it would cause an adverse reaction when Iraqis learned of it.
There is nothing improper in this, legal experts say. The military justice system is "command-centric" and has been since Gen. George Washington led the Continental Army.
"Commanders have broad powers," said Eugene R. Fidell, a military law expert in Washington. "They can very well be concerned with larger societal issues in deciding prosecutions, such as good order and discipline among the troops, along with the administration of justice."
There were indications during the two-week hearing that the Haditha case has led to discontent in the infantry. Several officers served as character witnesses for Chessani; others, subpoenaed by the prosecution, seemed resentful. Some sought and received immunity before testifying.
Capt. Jeffrey Dinsmore, who was the battalion intelligence officer, testified that he felt the decision to prosecute Chessani was politically motivated.
1st Lt. Adam Mathes testified that he felt the lesson of Haditha was that troops looking for insurgents have two choices: Let insurgents hiding behind civilians get away or fight back and risk "being part of an investigation for the next year and a half," he said, in a voice filled with sarcasm.
Tony Perry writes for the Los Angeles Times.