Did the US military justice system work?

That’s the question defense analysts are asking on the heels of a Marine Corps judge’s recommendation Tuesday that the sergeant in charge of a team of US troops responsible for killing 24 Iraqis, including seven children, receive 90 days confinement and reduction to the rank of private.

As a result of a pretrial agreement, however, Staff Sgt. Frank Wuterich will not serve any time in prison.

Staff Sgt. Wuterich was the final defendant to be tried in what became the infamous Haditha case. Seven other US troops were charged along with Staff Sgt. Wuterich for their actions at Haditha in 2005 and for allegedly obstructing justice afterward.

Six ultimately had their cases dropped, and one was acquitted.

Following closely on the heels of revelations about Abu Ghraib prisoner abuse, Haditha became synonymous with accusations that the US military was recklessly disregarding the safety of civilians and those in its custody.

After a roadside bomb killed one Marine and two others on the morning of Nov. 19, 2005, in the Anbar Province town of Haditha, Wuterich and his squad went on a rampage, allegedly in pursuit of a gunman who fired on them from a house after the explosion. Wuterich was accused of manslaughter, assault, and dereliction of duty for his role.

During the plea hearing Monday, Wuterich expressed regret for his decision to “shoot first, ask questions later.” Throughout the trial, the defense team emphasized the fog of war and Wuterich’s duty to protect his fellow Marines from harm.

Wuterich’s plea bargain, struck by military lawyers, stipulated that he receive no more than three months in prison. He remains on active duty.

The sentence handed down by the Marine Corps judge, Lt. Col. David Jones, is only a recommendation, however. The final decision about whether Wuterich will serve jail time or not is ultimately up to the commander of the 1st Marine Expeditionary Force, Lt. Gen. Thomas Waldhauser. According to a Marine Corps statement, that decision will come “once he has fully reviewed the case.”

But the very terms of the plea bargain in a case in which two dozen civilians were killed suggests that ultimately, history will likely conclude that in the case of Haditha, the military justice system didn’t work, argues David Glazier, a professor of law at Loyola Law School Los Angeles and a former career US Navy officer.

“The justification for having a separate system of military justice is primarily to be able to maintain good order and discipline,” he says. “That requires prompt investigation and punishment of wrongdoing.”

It took six years to bring Haditha to trial.

“The first problem was failure in the chain of command to recognize that there was a potential crime,” Mr. Glazier says. The commander in charge of Wuterich’s unit “when he first heard the problem, refused to believe it. He said, ‘Not my Marines.’ ”

In other words, loyalty to the troops trumped loyalty to the constitution, and resulted in failure “to conduct a meaningful investigation immediately,” Glazier says.

It did not help, either, that after handing out condolence payments to the family members of Haditha victims, military lawyers then argued that the money tainted their eyewitness accounts. “To me, that defies logic,” says Glazier.

Yet there is good reason that the investigation and trial took as long as it did, says Capt. Glenn Sulmasy, a judge advocate general and professor of law at the US Coast Guard Academy.

“The system is liberalizing even at the expense of affecting perceptions of this country,” says Capt. Sulmasy.

For this reason, Haditha does not represent a failure of the military justice system, he argues, but rather the changing realities of 21st century warfare.

“The military justice system is fair, and most American warriors act in accordance with laws of war,” says Sulmasy, author of The National Security Court System: A Natural Evolution of Justice in an Age of Terror. “Why did it take so long? That boils down to the political issues of warfare today.”

This includes enemy fighters who dress as civilians, and a counterinsurgency focus on winning hearts and minds, he says.

Yet there remains the issue of culpability, Glazier says. The Haditha case – like Abu Ghraib and others before it – was surrounded with concerns that a relatively low-ranking soldier was taking the fall, while officers avoided any repercussions.

In this case, however, “It seems that objectively, the guy who was facing the serious charges” – in this case Wuterich – “was the senior Marine in the unit on the scene” and therefore “has the greatest responsibility. I don’t think it’s an injustice that subordinates were given a plea deal and asked to testify against him.”

Ultimately, however, when the Marines took the stand in the trial against Wuterich, “They cast doubt as to whether or not the situation was clear cut. They had remorse. They said that looking back at it they realized the amount of killing they did was excessive,” Glazier adds.

The jury, for its part, was comprised of military veterans who had served in Iraq and Afghanistan. For better or worse, this remains a necessary component of trying troops accused of war crimes, both Glazier and Sulmasy agree.

“It’s almost impossible to get a civilian jury to ever convict” a soldier, Glazier says. These are “folks who are well aware of the fact that when the nation decided to launch these overseas wars they think, ‘We didn’t go to war; we didn’t make those risks.’ ”

What was missing – and remains missing – is more realistic training for the troops who are headed to war, and a more blunt explanation of why the rule of law during combat is so vital, Glazier says. “A lot of folks think that these rules of law are humanitarian niceties,” he notes.

So if it’s a choice between protecting fellow troops whose lives may be in imminent danger or killing innocents, they protect their buddies, he adds.

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"What has to be explained is that ultimately other soldiers and Marines are going to die if you violate these rules.”

Haditha for example, resulted in “extra recruiting, extra financial support, and cousins of those who were killed joining the insurgency,” Glazier says. “What you never hear presented is that these rules are designed to win the war – not to tie your hands.”