Here is LA Times’ update for yesterday’s proceedings that included the testimony of former Cpl Stephen Tatum.  Tatum, according to the LAT, testified that “Staff Sgt. Frank Wuterich, labeled the home [where many of the killings occurred] ‘hostile,’  [and told the squad that] there was no need to ask questions to distinguish between combatants and noncombatants before killing those inside with M-16 fire and grenades.”  The story also reports that after testifying that “[t]he only thing that gave me the idea that there was hostile intent [on the part of residents] was Staff Sgt. Wuterich firing,” Cpl Tatum responded on cross that he thought SSgt Wuterich had not done anything wrong in the killings.

Better coverage of Tatum’s testimony here, courtesy of the North County Times.

22 Responses to “Daily Wuterich Update [Updated]”

  1. Cap'n Crunch says:

    If I understand the article and testimony correctly, then it seems to me that what we are looking at is: 1) roadside bomb is detonated, killing/wounding American servicemen; 2) small arms fire, coming from direction of homes; 3) order to clear homes; 4) heard sound of preparation to fire AK-47; 5) fog of warfare including prior experience of American deaths/wounded at Falujah where hesitating upon entry resulted in loss of American lives/property.

    I don’t see a conviction on this one, but I could be wrong.

  2. Charlie Gittins says:

    So, right up front, I’ll say I represented the Battalion JAG who was also charged but for whom all charges were dismissed by then-LtGen Mattis after the Article 32.  IED with dead Marine + small arms fire from house near by = declared hostile.  Go kill the bad guys according to what you were taught with GRE-FUCKING-NADES and you shoot some peeps in the room who you could not tell if they had a weapon or not . . .   Sorry — you should not have to wait to see if the guy next to you takes a round between the eyes to shoot in a smoke filled room.  Very unfortunate to be sure.  But the death of 1 Marine because they hesitated is unconscionable.  I think there was some aerial footage that shows a bunch of bad guys running from the vicinity.  Stay tuned, kids — there WERE bad guys nearby and I’d trade the collateral damage of some locals for Marines any day.  And if you wouldn’t, game on.

    CG
     

  3. Some Army Guy says:

    What about the unarmed men that were pulled out of the taxi and then killed? 

  4. Some Army Guy says:

    BTW — Killing all of the women and children in a house may save a Marine’s life today, but it’s a good way to get five more killed tomorrow.

  5. Cap'n Crunch says:

    I do not think ANYONE was saying that this was a perfectly executed, well planned, sophisticated, “model” operation.  I certainly was not.  It is a very tragic incident.  There are lessons to be learned.

    Mr. Spillman:

    The point I made was that I do not see, based on the evidence, why SSG Wuterich should be held criminally liable based on the facts and circumstances of this case.  It is combat.  Roadside bomb.  Small arms fire coming from the general location.  Sound of AK heard like its ready to be fired.

    Your apparent insistence on perfection, in a difficult environment where these Marines were operating, in the fog of war, under the facts and circumstances as we know them, is unrealistic and, from a legal perspective, sets a standard that will get American servicemen killed.

    As for the Taxi business, I think I’d like to hear the testimony on that, before I judge it.         

    LOAC, as anyone who has served as a JAG knows, specially calls for a cost-benefit analysis to be performed when it comes to collateral damage.  I happen to believe that its not a numbers game, as you suggest, but rather a weighing of risk.  Risk that an entire squad could be killed versus throwing a few grenades in a building, where hostiles are strongly suspected, justifies the action from a legal perspective, even if its not technically perfect or what you would do in a Monday morning quarterback sitation.

  6. Charlie Gittins says:

    Early on in the war, after an IED explosion, if Military Aged Males were seen running from the area, they could be engaged and killed.  The rules later changed, but the guys in the taxi started running, ignored orders to stop just after a Marine vehicle was engaged and destroyed by an IED.  

    The rules changed over time, and this operation didn’t happen well.  But there was no criminal conduct.  There is aerial footage of MAMs with weapons in the area.  That they might have been on the other side of the door was a probability that could not be ignored.  The Marines were taught to throw in grenades and then clear the room by fire.   That procedure may have changed but it is the one these guys were taught.

  7. Bill C says:

    Like Brother Charlie I represented one of these Marines, although charges were never brought against him.  This case is another bad example of what happens when lawyers run wars.  We have lost our focus as a fighting force.  If you are getting shot at, shoot back.  If the shooting is coming from a building well I guess you have two choices. Go in and ask around (and likely wind up dead) or go in and kill the occupants.  One of the reasons America is no longer the decisive victor in combat is that we no longer fight to win.  We fight to contain and not make people upset, espcecially prosecutors. 

  8. Who's your daddy says:

    Bill C:

    Lawyers do not run wars.  Under the UCMJ, they don’t even run the cases — that is, the prosecutorial discretion is left to the Commander.  Moreover, this isn’t simply semantics.  The General Officers i know, would surely listen to the SJA (and occassionally prosecutor and/or defense counsel), but they absolutely excercised their own judgment.  Sometimes this meant not bringing charges; sometimes it meant referring the case for an Article 32 investigation; sometimes it meant referring a case to a court-martial where the accused would be judged by “LINE OFFICERS.”

    There is a balance to be struck, but that line is drawn by Commanders, typically General Officers who have served more than a few days in harms way.  Before they were GOs, they were field grade and before that Lts, and in some cases privates.

    We’ll see what happens, but from what i can tell there has been an abundance of fair treatement and due process.

    We have high standards and expectations.  The lives of these women and children count not only on a moral level, but also at the operational and strategic level of warfare.  Commanders are not in the business of second guessing a Marine under hostile fire.  Their instinct is to protect them as they know the reality of the fog of war as well as anyone.  At the same time, Marines can and do screw-up and occassionally that can also mean the misconduct was criminal.  If there is probable cause, then see if the prosecutors can prove it beyond a reasonable doubt.

    I think the UCMJ works well; and that includes having a passionate defense.  To that end, I salute you and Mr. Gittins. 

  9. Hines says:

    “I’d trade the collateral damage of some locals for Marines any day” Collateral damage in the form of 24 dead civilians, inclusing women and children? God help us Mr. Gittens if everyone has your foolish point of view.

  10. Bill C says:

    Who’s your daddy:  My point is this. I have talked to numerous warriors who are now terrified of pulling the trigger because of the legal implications.   Still others will tell me that they would rather go to to jail then die, but they know one of the other is going to happen. 
    I wish I shared your view that commanders are not in the business of second guessing, but my experience tells me otherwise.  I have represented numerous soldiers whose careers were ruined while they waited years for an investigation to be done.  Regardelss of the results, the impact on a career is palatable. I have had soldiers have to sit through courts-martial even though an Investigating Officer recommended no charges.  All too often I see commanders abdicating their responsibility to lawyers, and that is a dangerous precedent. 

  11. Charlie Gittins says:

    Hines:  First, spell my name right.  That is a small detail, but it says alot about your attention to detail.  You post anonymously, so I have no idea of your experience.  I have some.  Actually, I have alot of experience.  If you would trade a Marine for 24 civilians in a combat zone, I know a few Marines who would like to meet you in a dark alley.  And I’d be one of them.  

    FYI, the CG of this Op and his chief of staff received Secretarial Letters of Censure.  The COS was a JA and my NKS classmate.  None of the leaders cared what happened that day and none of them received any real discipline for their failures. Excuse me if I can’t see the probity of prosecuting those whose lives were actually on the line.  

    Please tell us about your combat experience.  I would love to hear about your experience so that we can judge your qualifications to say what you are saying.

    Just sayin.  Please respond.
     

  12. Jack Ryan says:

    This Marine seconds, Mr. Gittins.  That’s G-I-T-T-I-N-S.

  13. Detail oriented says:

    What is NKS?

  14. Soonergrunt says:

    You don’t have to be a Marine to concur with Messers Gittins and Ryan on this.
    During any of my missions, I and other leaders took care to ensure that we did everything possible to mitigate the risk of inadvertent damage to civilians or their property, but at NO time, did we ever even think about, to say nothing of doing, ANYTHING that put my Soldiers at unnecessary risk.
    Better ten of them than one of mine.

  15. Hines says:

    Mr. G-I-T-T-I-N-S.  My name actually is HINES.  It’s not anonymous. This Marine disagrees. Experience?  Tell us about yours in the backseat of those F-4s between 79 and 84.  You certainly are not claiming that you have cleared houses, to wit, Wuterich et al, are you? In the courtroom? Well, you came out to Miramar a few years back and tried to dust off your old hemp-seed oil defense against me and your Navy LT client earned a dismissal.  Several years ago at NMCCA, your Navy O-5 client had several years’ confinement and a dismissal upheld.  So it’s Hines – 2, G-I-T-T-I-N-S – 0. I do respect that you put your name on your generally bombastic, ill-conceived posts, unlike the professional posters appearing above.  Your posts are usually entertaining, though, because it’s the same way you act in a courtroom.  I am not talking about trading Marines lives for “casualties of war.”  I am talking about your attitude.  24 dead civilians may be acceptable to you, but I disagree.  It does not mean it’s a crime; each case is different and a crime has to be proven in court.  But the day we as a nation take your position that 24 dead civilians- women and children included -is something to shrug about is the day we lose any moral high ground; it just devolves to “might makes right” and “to the victor go the spoils,” etc.  I seriously doubt that if a foreign army was operating on our soil and they rolled through Middletown, Virginia, and killed 24 of your neighbors that you would have the same attitude.   And your comment about meeting me in an alley shows a good talent for the jocular.  It actually made me laugh out loud. 

  16. stewie says:

    Well, if that’s the standard, then just drop bombs from on high, why even go into buildings with individual Soldiers/Marines to begin with. You’d defnitely get ten of them and not risk one of you. If the sole goal is eliminating risk to folks on the ground, then why not return to the total war concept of prior ages and just carpet bomb areas that have resistance?

    Seems to me, there is a middle ground between risk to civilians and risk to us. Pretending like there isn’t or that somehow you aren’t quite good enough of member of Team USA if you think there is, well, that’s pretty ridiculous.

    We take on risk to insure that we do not needlessly or gratuitously kill unarmed, dangerous civilians. Does it happen? Yep. Is that a casualty of war that is in some cases unavoidable? Yes. Was this a situation that required those civilians to be killed? The panel will suss that out, many of them no doubt with as much experience on the ground as Mr. Gittins or anyone else on here.

    I have little concern that they won’t make a balanced decision. It may not be the correct one, but I suspect there will be plenty of consideration both for the concept of protecting civilians and Marines.

  17. Hines says:

    Mr.  Gittins-  I tried to answer you but they will not post it.

  18. Hines says:

    Mr. G-I-T-T-I-N-S.  My name actually is HINES.  It’s not anonymous. This Marine disagrees. Experience?  Tell us about yours in the backseat of those F-4s between 79 and 84.  You certainly are not claiming that you have cleared houses, to wit, Wuterich et al, are you? In the courtroom? Well, you came out to Miramar a few years back and tried to dust off your old hemp-seed oil defense against me and your Navy LT client earned a dismissal.  Several years ago at NMCCA, your Navy O-5 client had several years’ confinement and a dismissal upheld.  So it’s Hines – 2, G-I-T-T-I-N-S – 0. I do respect that you put your name on your generally bombastic, ill-conceived posts, unlike the professional posters appearing above.  Your posts are usually entertaining, though, because it’s the same way you act in a courtroom.  I am not talking about trading Marines lives for “casualties of war.”  I am talking about your attitude.  24 dead civilians may be acceptable to you, but I disagree.  It does not mean it’s a crime; each case is different and a crime has to be proven in court.  But the day we as a nation take your position that 24 dead civilians- women and children included -is something to shrug about is the day we lose any moral high ground; it just devolves to “might makes right” and “to the victor go the spoils,” etc.  I seriously doubt that if a foreign army was operating on our soil and they rolled through Middletown, Virginia, and killed 24 of your neighbors that you would have the same attitude.   And your comment about meeting me in an alley shows a good talent for the jocular.  It actually made me laugh out loud. (LOL)

  19. soonergrunt says:

    @stewie
    My point is that one trains, plans, trains, equips, trains,  and then trains some more to ensure that, as I said earlier, we do everything possible to mitigate the risk of inadvertent damage to civilians or their property.  Anything and everything carries some level of risk, and good leaders work to minimize risk of mission failure or risk to personnel and equipment, while accepting that some risk is inevitable.  But we don’t take unnecessary risks.  And that starts with a mindset that compels us to do everything within our power to ensure that we accomplish our mission (including not gratuitously killing civilians because that increases the risk mission failure as well as legal/moral implications) and bring our men home safely and with their honor and ours intact.

  20. stewie says:

    I don’t think I disagreed or disagree with any of that in theory/general. When we do it right, we minimize (but can’t possibly eliminate) risk for both us and civilians. Some posters here however seem IMO to push the line much closer to consideration for just us, and too far away from consideration of loss of innocent life.

    I think I find somewhat offensive the idea that folks who believe that there might actually have been something criminal or even wrong here are somehow anti-American, or value the lives of our men and women less than others. Not you, but some on here seem to believe that.

    I wasn’t there, didn’t see it, don’t have all the evidence in front of me. I’ll go with whatever the panel says. But, I certainly don’t see something as cut and dry as some are presenting.

  21. anon says:

    I’m not sure how this has devolved into a question of what is proper collateral damage.  If those deaths are the result of mission-related fire than, as tragic as it is, those Marines are not criminallly culpable.  And yes, as someone stationed in that area during the time of the Haditha incident, the ROE was changed on multiple occasions. Other than predeployment and post-deployment gripes (some legitimate), however, I didn’t see incidents of servicemembers not reacting or engaging because of confusion over the ROE.  Further, in my experience, I didn’t see commanders sharp-shooting their soldiers because of questionable calls.  Just one person’s perspective, but overall I think the military has done a pretty good job of not prosecuting servicemembers for difficult decisions made in the heat of battle.

  22. Mark says:

    As a former Combat soldier I fault Wterich with a total lack of situational awareness. Did he ask himself, “What would the enemy want me to do?”

    If in danger and not afraid “Why would 5 MAM just stand by the taxi?”

    If in danger “Why would women children and elderly hide inside houses.”

    The answer, 2 levels above Wuteriche’s  understanding is..the enemy wanted him to do just what he did. lose control of himself, his emotions and his unit and start killing everyone he found. 

    Rule #1, “Calm down, evaluate the situation.”