The leader of a battalion involved in the killings of 24 Iraqis in Haditha should face a court-martial for dereliction of duty, the investigating officer recommended in a report obtained Wednesday by The Associated Press.
Lt. Col. Jeffrey Chessani, 43, was charged in December with dereliction of duty and violation of a lawful order for failing to report and investigate the deaths of the men, women and children in the biggest U.S. criminal case involving civilian deaths to come out of the Iraq war.
The investigating officer, Col. Christopher Conlin, wrote that Chessani should face all charges.
Chessani "failed to thoroughly and accurately report and investigate a combat engagement that clearly needed scrutiny," Conlin wrote.
The report was provided to the AP by a defense lawyer who asked to remain anonymous because other attorneys in the case had not seen it.
Chessani's defense attorney Brian Rooney did not immediately respond to a phone message. He has previously said his client was innocent.
Conlin blasted Chessani for failing to go to the scene of the November 2005 killings immediately after they had occurred, even though he knew 24 "neutrals" were dead.
"To not have made every attempt to be on scene as this action developed, or to not have at least reviewed this action in detail ... is in itself negligent," Conlin wrote. "The fact that one fireteam was solely responsible for 24 deaths in all direct fire actions should have solicited more than passing interest from the senior leadership of the battalion."
Chessani would be the most senior U.S. serviceman since the Vietnam War to face a court-martial for actions or decisions made in combat, said Gary Solis, a former Marine Corps prosecutor and judge who teaches law of war at Georgetown University Law Center.
Charges against another defendant blasted
The decision followed a setback for the government in its case against another Haditha defendant. A hearing officer found prosecutors lacked sufficient evidence for a court-martial against Lance Cpl. Justin L. Sharratt, who was accused of fatally shooting Iraqi civilians.
Lt. Col. Paul Ware said murder charges brought against Sharratt for killing three Iraqi brothers were based on unreliable witness accounts, insupportable forensic evidence and questionable legal theories.
"The government version is unsupported by independent evidence," Ware wrote in an 18-page report released Tuesday by Sharratt's attorneys. "To believe the government version of facts is to disregard clear and convincing evidence to the contrary."
Prosecutors allege Sharratt and other members of his battalion engaged in a revenge-motivated assault on Iraqi civilians after a roadside bomb killed a fellow Marine. Sharratt contends the Iraqi men he confronted were insurgents and at least one was holding an AK-47 rifle when he fired at them.
"Whether this was a brave act of combat against the enemy or tragedy of misperception born out of conducting combat with an enemy that hides among innocents, Lance Corporal Sharratt's actions were in accord with the rules of engagement and use of force," Ware wrote.
He said further prosecution of Sharratt could set a "dangerous precedent that ... may encourage others to bear false witness against Marines as a tactic to erode public support of the Marine Corps and its mission in Iraq."
He added, "Even more dangerous is the potential that a Marine may hesitate at the critical moment when facing the enemy."
The recommendations by the investigating officers for both Chessani and Sharratt are nonbinding. Final decisions about whether they should stand trial will be made by Lt. Gen. James Mattis, the commanding general overseeing the cases.
No investigation ordered
At Chessani's preliminary hearing, several witnesses testified that Iraqis had complained to Chessani soon after the killings and that he promised to look into what had happened.
But Chessani, of Rangely, Colo., said he never ordered a formal investigation because he believed the deaths resulted from lawful combat.
In the only other preliminary hearing in the Haditha case, an investigating officer recommended dereliction of duty charges against Marine lawyer Capt. Randy W. Stone be dealt with administratively.
Besides Sharratt, two other enlisted men are charged with murder. Four officers are accused of failing to investigate the deaths.