By SOF Editor on Fri, 12/04/2009 - 6:35pm
On Wednesday, December 2nd, in a military courtroom at Camp Pendleton, California, the government began its case against an American warrior. They know this is their last chance to disgrace and destroy the 22-year career of Marine Lt. Col. Jeffrey Chessani, and it’s evident they are pulling out all the stops.
Many of the spectators in the small courtroom were battle-hardened Marine veterans of World War II, Korea, and Vietnam. Some were veterans of the Korean Chosin Reservoir battle, considered the most violent small unit fighting in the history of American warfare. All the veterans looked on in disbelief as government lawyers ridiculed a loyal combat officer. The consensus among these battle-hardened veterans ─ they never would have won their battles had their officers been subjected to the same kind of treatment as LtCol Chessani.
LtCol Chessani had served 3 tours of duty in Iraq and was considered one of America’s most effective combat commanders. Chessani, a deeply religious man who read his Bible every morning and evening while in Iraq, stoically listened to the government lawyer’s demeaning remarks, while his wife, pregnant with their seventh child, sat behind him reading her Bible.
Richard Thompson, President of the Thomas More Law Center commented: “What has happened to LtCol Chessani is a good argument to get rid of lawyers in the combat arms. Combat troops don’t need pencil pushers second guessing commanders and troops in the field, long after an event, in their air-condition offices. The fact that this hearing is even taking place does a grave injustice, not only to Chessani and his family, but to America. LtCol Chessani should be leading his troops, not defending himself in a courtroom.”
LtCol Paul Atterbury, the government prosecutor (called “Recorders” at a Board of Inquiry) presented the opening statement for the government, claiming there was no firefight. He claimed that the Marines faced a phantom menace, and LtCol Chessani did not properly investigate and report the overreaction of his Marines.
LtCol Jon Shelburne, one of Chessani’s defense lawyers, countered that Marines were ambushed in this daylong battle and were engaged in a protracted pitched fight against well-armed insurgents. LtCol Shelburne further stated that LtCol Chessani reported all he knew of the battle, as he knew it, up the chain of command.
The differences between the Board of Inquiry and the previous court martial quickly became evident. Col Kurt Brubaker, USMC, the legal advisor to the Board of Inquiry, is tasked with ruling on all objections. Even though photographs of dead Iraqis would not have been allowed into evidence at the previous criminal trial because they were unduly prejudicial and had little relevance, particularly since LtCol Chessani never saw them, the legal advisor will allow the government to show them to the hearing panel because the rules of evidence to not apply.
Moreover, defense attempts to disqualify Brig. Gen. Lewis Craparotta, the President and senior member of the Board, who during pre-hearing questioning expressed a personal view that investigating every civilian death is the right approach because “that’s the way to protect Marines, ” also failed. Defense attorney LtCol Shelburne had challenged the fact that he was sitting on the Board of Inquiry with a pre-existing opinion of what to do in a similar situation as LtCol Chessani. The Board’s legal advisor rehabilitated Craparotta by personally questioning him to show he could set aside his opinion, and then ruled he could stay on the panel.
The legal advisor, however, did prevent the introduction of the former Article 32 hearing report on the grounds that its conclusions went to the ultimate issue that the board members were required to decide independently.
A Board of Inquiry is an administrative board where the rules of evidence do not apply. Evidence that would likely be thrown out in a criminal proceeding may be considered by the Board. The government’s burden of proof is lessened. Rather than having to prove its case beyond a reasonable doubt, the government only has to prove “misconduct” by a preponderance of evidence.
If the Board finds “misconduct, ” then they will further determine whether LtCol Chessani should be forced to retire or not. If the Board determines LtCol Chessani should retire, then the Board must then make a recommendation to the Secretary of the Navy as to whether he should retire as a Lieutenant Colonel, or as a Major—a decision that could cost this Marine and his family over four hundred thousand dollars in pay and benefits according to an expert retained by the defense.
The Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, has been defending LtCol Chessani at no charge. The Law Center’s attorneys, Robert Muise and Brian Rooney, both former Marine officers, have teamed up with the detailed military attorneys, LtCol Jon Shelburne, USMC, and Capt Jeffrey King, USMC.
The dismissed criminal charges against LtCol Chessani were triggered by a heart-pounding house-to-house, room-by-room combat action taken by four Marines in his battalion after being ambushed by insurgents in Haditha, Iraq on November 19, 2005. Along with several insurgents, 15 civilians also died in this day long fight. The civilian casualties were tragic, but not uncommon in Iraq where insurgents would use them as shields.
The “misconduct” allegations against LtCol Chessani are based on the following: failing to properly report and investigate the November 19, 2005 incident. However, the indisputable evidence shows that LtCol Chessani immediately reported the deaths of the 15 civilian Iraqis to his superiors.
Not one of his Marine superiors hearing of the civilian deaths ─ including top generals ─ considered it unusual. Not one ordered a further investigation. Instead, they commended him for a job well done. In fact, LtCol Chessani’s immediate superior told him that no investigation was needed because it was a bona fide combat action—which was consistent with the orders in effect at the time: no investigation of civilian deaths related to combat action. That order was changed in April, 2006, well after the Haditha incident.
LtCol Chessani’s commanding general, Major General Huck, reported up the chain of command, “I support our account and do not see the necessity for further investigation.” This same commanding General was allowed to retire without going to a Board of Inquiry, and he was allowed to retire as a Major General.
Consequently, not one of LtCol Chessani’s superiors faced, nor will they ever face, a court-martial or a Board of Inquiry for their actions in relation to November 19, 2005.
Of the eight Marines initially charged in the incident, six Marines, including Chessani, had criminal charges dismissed and one was acquitted. Only one Marine still faces criminal charges.
Live testimony at the Board of Inquiry will begin on December 7, 2009.