Just Kills: How The Marine Corps Blew The Biggest War Crimes Case Since Vietnam
“This wasn’t about justice. This was about politics."
On the evening of Jan. 21, 2012, attorney Neal Puckett stood on a balcony in Oceanside, California, and delivered an ultimatum to the United States Marine Corps. A few days earlier, Puckett had reached a deal with military prosecutors that would have let his client — a Marine staff sergeant facing nine counts of manslaughter — walk free. Now, the two-star general presiding over the court-martial was nixing the deal and sending the case back to a jury for verdict.
Puckett understood why, of course. A plea bargain would be a shocking conclusion to the biggest war crimes case since Vietnam. People would cry foul. There’d be accusations of malfeasance— of the Marine Corps thwarting justice to protect its own. This way, at least, the general could say he let the system work as it’s supposed to. But Puckett was convinced his client was being railroaded. Either the deal was approved, or he’d burn the house down.
Wearing a black hoodie and a ball cap pulled low over his eyes, Puckett stared out across the empty beach as he spoke slowly and deliberately into the phone. The general, he said, knew as well as he did that the government had built a case against his client “that did not exist.” He already had “the ear” of the House Armed Services Committee. There’d be an investigation. Careers would be destroyed high up the chain of command. The terms of the deal he’d negotiated with the prosecution were “not compromisable,” he said.
None of which is to say that Staff Sgt. Frank Wuterich was entirely blameless for the carnage wrought in the Iraqi city of Haditha on Nov. 19, 2005. The Connecticut-born infantryman, then 25 and a sergeant (E-5), had been the senior enlisted man on the ground. He’d admitted to losing control of his Marines as they swept from house to house, leaving a trail of bodies in their wake. But the prosecutors had developed a theory of the case that went much further. They intended to paint Wuterich as the person responsible for some of the most heinous acts perpetrated during the rampage. Six of the victims were children. Most had been shot in the head at close range. Wuterich admitted he’d killed that day, but he insisted he’d only targeted combatants — or, at least, people he thought were combatants.
Initially, four enlisted Marines including Wuterich had been charged with carrying out the massacre. But even as the investigation was unfolding, three had been given immunity to testify against Wuterich. Their testimony formed the foundation of the prosecution’s case.
The court-martial had been the culmination of one of the longest and most expensive criminal investigations in U.S. military history. And yet, three weeks into the trial, the prosecution appeared to be grasping at straws. Before the prosecution team, headed up by Lt. Col. Sean Sullivan, had even rested its case, it approached Puckett with a plea bargain. That left Wuterich’s fate in the hands of Lt. Gen. Thomas Waldhauser, the trial’s convening authority, who had ruled that the trial would go forward.
In delivering his ultimatum, Puckett knew he was out on a limb. But he wasn’t bluffing. Going public with the details of how prosecutors blew a high-profile case involving the mass slaughter of innocent people would indeed do real damage to the Corps’ reputation. But in a way, what Puckett was threatening to expose on the evening of Jan. 21 was far bigger and more disturbing than a bungled case. It was a travesty of justice that had not only failed the victims of the massacre, but also, he believed, would allow cold-blooded murderers to go free. No less troubling was something that Puckett, a 20-year Marine Corps veteran himself, had long suspected and of which he was now absolutely certain: this was the outcome the Corps had been angling toward all along. Wuterich’s trial was the final act of a six-year dog and pony show.
On the other end of the line was Lt. Col. Kirk Kumagai, staff judge advocate to the convening authority, and the only person Puckett believed could effectively relay to Waldhauser the explosive potential of his allegations.
“I’m not trying to jump ugly with you or with him,” Puckett said, his voice iron-flat. However, he reminded Kumagai, the reason the deal made sense to everyone concerned was that it would prevent him from exposing what he termed “the suborning of perjury,” the crime of persuading or allowing a witness to lie under oath. He pointed out that the scandal would likely have international repercussions, and added that his closing argument, were he forced to make it, would be “devastating to the Marine Corps.”
The call lasted about 90 seconds. Then Puckett put the phone down and waited. Beside him, documentary filmmaker Michael Epstein, his face hidden behind the eyepiece of a Canon XH-A1, struggled to make sense of what he had just witnessed. Epstein had first approached Wuterich’s defense team in 2006 with a request to chronicle the court-martial for what he figured would be a 40-minute television documentary about the trial and conviction of a notorious American war criminal.
Now, on the balcony six years later, Epstein had hundreds of hours of footage — including some he shot during a trip to Haditha in 2008 — but an incomplete story. He had begun to suspect early on that the prosecution was scapegoating Wuterich, but then the plea deal was proposed. Why would the prosecutors put so much effort into pinning the massacre on one man only to let him walk away? And what made Puckett so sure the convening authority would eventually buckle and go along with the arrangement?
Puckett offered an explanation. The timing of Sullivan’s plea offer had not been coincidental. By that point in the trial, dozens of witnesses and experts had been called to the stand, but the jury had not yet heard from the two people whose testimonies, Puckett promised, would demolish the prosecution’s case: Mike Maloney and Tom Brady, both former Marines, who had helmed the Haditha forensic investigation for the Naval Criminal Investigative Service and wrote the NCIS protocol for tactical crime scene examination in conflict zones. Sullivan’s offer for Wuterich to plead guilty to just one count of negligent dereliction of duty had come on the very day Maloney and Brady were scheduled to testify.
If Epstein wanted answers, Puckett said, he should consult Brady and Maloney.
Getting them to talk wasn’t easy. Both men’s enduring loyalty to the Corps soon became evident as Epstein initiated the delicate process of trying to win their trust. It took months of persistent emails to persuade Maloney to agree to an on-camera interview. Four more years would pass before Brady followed suit.
In December 2012, Epstein and Maloney met at a Days Inn in the suburbs of St. Louis, Missouri, with his camera. The conversation started with the day Maloney got the call from his superiors informing him that he had been chosen, along with Brady, to lead the investigation. Six hours later, having covered virtually every aspect of the case, Epstein was stunned by what he’d learned, not only about the crime itself but about the questionable way the court-martial had been handled by senior Marine officials.
“This wasn’t about justice,” Maloney told Epstein. “This was about politics. The world knew something horrible happened, and there had to be an answer for it. It can be us as a Marine Corps. It can be a unit, or it can be a squad, or it can be a platoon, or it can be one man. And one man became the politically expedient answer.”
The sequence of events that culminated in the brutally efficient slayings of 24 unarmed civilians in a residential enclave of Haditha on Nov. 19, 2005, began at around 7:15 that morning. But many observers believe the incident was set in motion long before the men of Kilo Company, 3rd Battalion, 1st Marines set foot in Iraq — on the day nearly 20 months before, when four Blackwater contractors were ambushed by an angry mob in Fallujah. Their bodies were dismembered, burned, and paraded through the city’s streets while jubilant onlookers chanted anti-American slogans. Two were strung from a bridge over the Euphrates. Footage of the grim spectacle was broadcast around the world.
The Marines spearheaded two attempts to take Fallujah. Then-Lt. Gen. Jim Mattis reluctantly commanded the first. It was the Bush Administration’s idea to launch a retaliatory mission against the city — to “take the fight to the enemy,” as one military official put it. Mattis, a champion of the “hearts and minds” strategy embraced by the U.S.-led coalition several years later, adamantly opposed the operation. According to the official Marine Corps version of events, the man known as Chaos “protested the order, arguing that a large-scale operation would send the wrong message, unnecessarily endanger civilians, and ultimately fail to achieve the primary objective.”
By the time Washington finally arrived at the same conclusion and ordered the Marines to halt their advance through the city, Mattis had lost 39 of his men. He was livid. A year later, speaking at a forum on the War on Terror in San Diego, he called the Pentagon’s lack of regard for counterinsurgency “almost embarrassing intellectually.”
As Mattis had predicted, the coalition’s response to the Blackwater killings had only empowered the insurgency in Fallujah. Over the summer, the ancient city of 250,000 had transformed into a virtual fortress, replete with a vast network of tunnels and reinforced bunkers. Foreign fighters flooded in from across the Middle East to wage jihad against the Americans. Codenamed Operation Phantom Fury and more commonly referred to as the Second Battle of Fallujah, the subsequent U.S. assault kicked off in early November 2004. For the next six weeks, coalition forces fought house-to-house, and sometimes hand-to-hand, to clear every block of the city. Anything that even vaguely resembled a threat was fair game. Kilo Company was right in the thick of it.
The pundits would later agree that the battle had been seared into Kilo’s DNA. However, by the time the company returned to Iraq for its third tour of the war, in September 2005, many of the Marines who had participated in Operation Phantom Fury — including most of the unit’s leadership — had either left the Corps or moved on to other assignments. In their place came a fresh crop of of young infantrymen eager to help pacify Anbar Province.
Kilo’s new mission was to secure control of Haditha, which had become a Sunni insurgent stronghold. This time, however, instead of subduing the city with overwhelming violence, Kilo was moving toward the more methodical approach that Mattis had long advocated: to undermine the insurgency by establishing a foothold among the locals. Success would require a dramatic shift in mindset — from kill-or-be-killed to sheepdog vigilance — as well as strict adherence to rules of engagement that had been relaxed considerably for Falluja.
“The Iraqi People are not our enemy, but our enemy hides amongst them,” read a sign in Kilo Company’s headquarters office on Sparta Base, an abandoned school administration building the Marines had transformed into a fortress.
In the days and weeks following the Haditha massacre, the Marine Corps pinned the blame on the enemy. The Corps’ initial report put the civilian body count at 15 and described the dead as victims of an insurgent roadside bomb. Even after Tim McGirk of Time magazine broke the news of the incident in March 2006 — describing it as a “devastatingly violent response by a group of U.S. troops who had lost one of their own to a deadly insurgent attack and believed they were under fire” — the Corps continued to dismiss the story as insurgent propaganda.
Behind the scenes, however, the U.S. military brass in Iraq was scrambling to figure out what had happened. Army Lt. Gen. Peter Chiarelli, commander of all coalition forces in the country, had launched an Army-led inquiry in mid-February after learning that the Marine Corps didn’t believe one was necessary. The NCIS investigation spearheaded by Maloney and Brady got underway soon after.
As the duo made their way to Iraq — Maloney from Okinawa, Japan, and Brady from Jacksonville, Florida — reporters continued to build on McGirk’s initial report. But given the lack of solid information and the web of conflicting accounts, they tended to focus on the surrounding context rather than the events themselves. By the time the NCIS team arrived in Haditha, a narrative had already begun to crystallize : the massacre was “not entirely an aberration,” as William Langewiesche of Vanity Fair would put it several months later, but rather a terrible evolution of an ill-conceived war, a revenge-fueled rampage carried out by Marines conditioned to see all Iraqis — even unarmed women and children — as targets. This, so the story went, was President George W. Bush’s My Lai Massacre.
The after-effects of Fallujah may have offered a plausible explanation for why Haditha happened. But what actually happened remained cloaked in mystery. The job of answering that question would fall to dozens of agents working on three separate investigations at a cost of tens of millions of dollars. There was no shortage of evidence to work with: witness and survivor statements, letters, laptops, and thumb drives confiscated from the Marines of Kilo Company, psychological records, footage from a military drone that was hovering over Haditha as the massacre unfolded, and of course the testimonies from the suspects themselves. And then there were photographs of the bodies — of a dead mother holding her dead son, of a blood-soaked bed full of children, of a corpse set ablaze, of a splayed skull soaked in urine. There were entrance and exits wounds, spent bullet cases, bullet defects, signs of struggle, signs of fear, and perhaps most disturbing of all, indications that someone may have returned to finish off any survivors.
The full story that emerged from the NCIS reports cannot be chalked up to a horrible mistake by Marines who feared for their lives. Nor did the evidence point to an adrenaline-fueled rampage or an orgy of vengeance. Instead, what Maloney and Brady uncovered pointed to a calculated series of murders. In their version, Wuterich is a participant in the massacre, but he is not the one who did the things that keep Maloney up at night. The investigators believe that this alleged executioner is one, or possibly two, of Wuterich’s fellow Marines.
“It doesn’t degrade the Marine Corps mission, or the fighting of the individual Marine, but there’s someone that did something terribly wrong, and they were granted immunity,” Maloney told Epstein, as the interview was drawing to a close.
The winter sky had grown dark over St. Louis. Epstein had one question left: Why are you talking to me? Maloney had recently left NCIS but he still worked as a forensic consultant for the Department of Defense. He had served as a drill instructor in the Marine Corps and begun his law enforcement career as a deputy sheriff in West Texas. He took a deep breath as he collected his thoughts.
“I think the truth needs to come out,” Maloney replied, adding that he’d like the actual perpetrators of the Haditha killings to “go to bed at night thinking, You know what, I may have fooled some of the people, but I didn’t fool everybody.”
In the fall of 1996, Maloney and several other special agents from the NCIS Forensic Consultant Division were deployed to eastern Bosnia to assist with a United Nations investigation of Europe’s worst mass murder since World War II. The previous July, ethnic Serb forces raided the town of Srebrenica and for five days hunted down and slaughtered 8,000 men and boys. The International Criminal Tribunal for the former Yugoslavia had enlisted NCIS to help determine whether the massacre amounted to genocide. Almost all of the victims were Muslim.
Maloney’s team was assigned to a theater where hundreds of executions had taken place. Sifting through the aftermath, the agents discovered a trapdoor that opened into a crawl space beneath the stage. Strands of congealed blood hung from the floorboards like stalactites. In the beam of his flashlight Maloney could see that people had taken refuge there during the killings. Bullets had left clusters of pockmarks on the back walls where they were huddled when someone found them.
Maloney has spent his career examining the stuff of nightmares, but of all the crime scenes he’s investigated only two left him shaken. One was that crawl space. The other was a bedroom in Haditha where he found himself 12 years later. The circumstances of the killings were not that dissimilar. Again, soldiers opened a door, discovered a group of terrified civilians, and killed them. This, however, wasn’t an act of genocide. To Maloney, in some ways it was even harder to make sense of. Why would United States Marines shoot up a bed full of women and children?
Just like an archaeological site, a crime scene is a discrete area containing layers of evidence of past human activity. Forensic analysts examine those layers to develop a rational chronological narrative. Doing so requires a keen understanding of the context. As Maloney explained, “the rules and the laws that govern our behavior are not the rules and laws that govern behavior in a combat zone.” Even in war, of course, there is a line between killing and murder. It just requires a lot of digging to find it.
Maloney and Brady had many layers to sift through when they arrived in Haditha in March 2006. The massacre had unfolded over approximately two hours and in several isolated locations. There were multiple suspects, each providing a different version of events. The instruments of death also varied. Of the six Marines who directly contributed to the body count, five were wielding M16s. The sixth was armed with an M240 belt-fed machine gun and a 9mm pistol. A couple of them had thrown grenades.
Then, of course, there were the bodies, long buried by the time the NCIS investigation got underway. Fortunately for the agents, a Marine lance corporal named Andrew Wright, whose HUMINT Exploitation Team (HET) arrived on the scene right after the massacre concluded, had photographed the dead with his personal camera before they were transported to a local hospital morgue. Wright photographed each of the 24 bodies from different angles. He rightly assumed the images would be used as evidence in a criminal investigation, but four months passed before anyone asked for them. Even internally, the Marine Corps had been attributing the carnage to an insurgent attack.
That assessment was not entirely unfounded. Indeed, the 24 victims of the Haditha massacre would likely have gone about their lives in peace if not for the IED strike that immediately precipitated the calamity. If the last Humvee in a four-vehicle convoy containing the Marines of 1st Squad, 3rd Platoon, Kilo Company hadn’t hit a roadside bomb, the Marines — who were returning to base from a routine supply run — would’ve rolled right through town.
The explosion wounded two Marines and tore Lance Cpl. Miguel Terrazas in half. The apparent reprisals began almost immediately, around 7:15 am. Even before somebody thought to cover up the eviscerated corpse of the 20-year-old Fallujah veteran, five unarmed Iraqis — four college students and a taxi driver taking them to school — lay dead in the roadway nearby.
What followed was a succession of killings in several nearby houses, during the course of which Wuterich was, according to both the media and the Marine Corps, the senior man on the ground. Technically, however, he wasn’t. His platoon commander, 2nd Lt. William Kallop, showed up on the scene within minutes of the blast.
In his first sworn statement describing the events of Nov. 19, 2005, Kallop claimed he’d ordered Wuterich to “clear” a house south of the road, which he had identified as an enemy fighting position. “Unfortunately, that day I thought that the fire was coming from that house,” he said. But in a deposition the following year, Kallop insisted that the order he actually gave was to clear a cluster of houses — not any specific one — and he had no reason to suspect they were occupied by insurgents. Otherwise, he wouldn’t have sent his Marines “charging into the front door.” The implication was that Wuterich picked the target and also made the call to treat the people inside the houses as insurgents. In other words, Kallop’s order didn’t set the massacre into motion.
Although Wuterich and the four Marines he assembled for the assault had cleared hundreds of houses in Haditha, only one — Lance Cpl. Stephen Tatum — was a combat veteran. They were soon joined by another. As the team advanced on its objective, Lance Cpl. Justin Sharratt — who had fought alongside Tatum through some of the bloodiest engagements of Fallujah II — dismounted the 240G belt-fed machine gun from the turret of his Humvee, borrowed a 9mm pistol from a Navy corpsman, and ran to catch up.
By 10am, the five Marines had cleared four houses and killed 19 more people. No weapons or bomb-making materials were recovered from any of the homes. Kallop nonetheless declared the mission a success. A “counterassault” is how he described it in an award nomination for Wuterich.
Nearly five months later, Maloney and Brady met with their forensic team in a large engine room on the bottom level of Haditha Dam — which had doubled as a coalition base since the early days of the war — to make final preparations for the biggest investigation of their careers. Normally, they’d spend four or five 16-hour days on a crime scene this size. Not this time. The Marines who’d be providing security in Haditha figured they’d have about three hours if they were lucky. It depended on how quickly the insurgents learned of their presence and mounted an attack.
On the morning of March 13, 2006, a convoy of Humvees delivered the investigators to the first house Wuterich’s team had raided. Once the Marines gave the all clear, the agents funneled through the front door and split off into different rooms, just as they’d rehearsed in the basement of the dam. Maloney and Brady had used Wright’s photos and other images to plot their every move in advance. They knew exactly what evidence they needed and where to look for it. Wearing Kevlar helmets and body armor, and carrying green lasers to analyze bullet trajectories, they moved methodically through the crime scene until every box on their list was checked. It took them roughly two hours.
Brady and Maloney returned to the NCIS Southeast Field Office in Jacksonville, Florida, to begin piecing together the puzzle. It was tedious, isolating work. Before long, a large cork board in their office was cluttered with timelines, graphs, and pages of hand-scrawled math equations. The photographs of the dead were enlarged on giant screens so that they could be scrutinized in minute detail. Maloney spent nine months staring at just the bedroom in “house two,” as NCIS had designated the second house Wuterich’s team entered. Gradually, a picture came into focus.
During the war, when coalition troops arrived to search a house, it was standard procedure for the male occupants to greet them at the door while the women and children sequestered themselves in a single room. Based on the forensic evidence, Maloney believed that was precisely how the family in house two responded when Wuterich’s fire team appeared on their doorstep: Aida and her sister Huda took Aida’s five children to the back bedroom. Aida’s husband, a local police officer, was shot seven times as he approached a metal and plexiglass door in the kitchen. The Marines proceeded to clear the home as they were trained to do, pieing corners with their rifles at the ready and tossing grenades, not all of which exploded.
At some point, at least two Marines entered the back bedroom and began shooting “as fast as they could pull the trigger while maintaining accuracy,” according to Maloney. “There was no evidence of burst mode.” The shots were precise and efficient, aimed squarely at heads and chests. Huda was killed first, followed by Aida, who was lying supine on the bed. 10-year-old Mohmed was most likely hit next as he crawled up toward his dead mother — although, as Maloney noted in his report, there’s a possibility he was killed immediately after Aisha, who was 3. Mohmed’s twin sister, Sebea, died on the far side of the bed, behind which their oldest sister, Noor, was already hiding. Evidence suggested Noor had been hit — possibly from two angles — when she popped up her head. The last bullet “evacuated” the skull of 5-year-old Zainab. Maloney likened the slaughter to “shooting ducks at the county fair.”
“There is never going to be a pretty scene that a group of Marines move through, let’s face it,” he told Task & Purpose, “but somebody sat there in absolute visibility and shot themselves across a row of women and children. If that’s not a malignant heart, if that’s not evil, I don’t know what is.”
Who killed the women and children? Who stood over 4-year-old Hameed with a gun pointed at the boy’s head and pulled the trigger? Who shot his mother? His father? His grandfather? Maloney and Brady believe their forensic reports offered answers to the most troubling questions, but it is not the job of investigators to win convictions. That, of course, would be the role of the prosecution, who are charged with building the strongest case possible using all of the evidence available to them. The NCIS investigators were confident, however, that Sullivan and his team had plenty to work with.
There were two other investigations into the massacre: a series of Article 32 investigative hearings — the military equivalent of a grand jury — conducted by Marine Lt. Col. Paul Ware, and a classified probe led by Army Maj. Gen. Eldon Bargewell, a highly-decorated commando and Vietnam War veteran, who focused on the training and preparation of the Kilo Company Marines, as well as why none of the officers in the unit had reported the incident. There were also the witnesses and survivors, including two children who had been wounded in the first house the Marines had entered. And of course, there were the Marines themselves, although their stories tended to diverge in critical ways. As the investigation proceeded, the Marines on the scene would offer testimony that flatly contradicted that of their comrades — and even their own earlier accounts.
There were common themes, however — most importantly, a tendency among the Marines to place Wuterich at the center of the most questionable killings, beginning with the five unarmed men on the road. The forensics repudiated the version of events described by Cpl. Sanick Dela Cruz, who testified that Wuterich alone had murdered all five in cold blood. Dela Cruz’s account was especially damaging due to an eerily prophetic conversation he recalled having with Wuterich about a week prior to the massacre, after a Marine in another squad was wounded by an IED.
“He made this comment about, if we ever get hit again, we should kill everybody in that vicinity,” Dela Cruz told Sullivan during Wuterich’s Article 32 hearing on Aug. 31, 2007. “So, you know, to teach them a lesson.”
Born in the Philippines and raised in Chicago, Dela Cruz was on his second combat tour to Iraq. On the morning of Nov. 19, 2005, he was driving the second Humvee in the four-vehicle convoy. The five Iraqis were in a white sedan traveling in the opposite direction when the IED exploded, at which point the car pulled to a stop on the shoulder about 200 meters from the lead truck. Dela Cruz testified that he spotted the Iraqis standing outside the car when he exited his Humvee. Some of them, he said, had their hands on top of their heads. Almost immediately, he heard the sudden “pop-pop-pop” of gunfire and watched the men fall one by one. Wuterich, he said, was kneeling with his rifle raised — like “a Marine rifle .”
Under the rules of engagement, an American service member can declare a target hostile just by shooting at it. This leeway is intended to prevent hesitation and ensure mutual support in situations where one soldier sees a threat that other members of his team don’t. Synchronization is a core concept of small unit tactics. What Dela Cruz did after Wuterich shot the five Iraqis, he claimed, was therefore not only justified but expected: “advance through” and engage the targets with his own rifle. Even so, he insisted it was only a precautionary measure. “I knew they were dead, sir, but I just wanted to make sure they were,” he told Sullivan. “And so I shot at them.”
By this point in the investigation, Dela Cruz had little more than his personal honor at stake. He had been granted immunity to testify against Wuterich, and his charges — five counts of murder and a single count of making a false official statement — had been dismissed with prejudice. As a result, no matter what evidence came to light as the case proceeded, Dela Cruz could not be convicted of any crime related to the killings on the road.
A grant of immunity is not the only way to persuade a witness to cooperate — for example, Dela Cruz could have been offered a reduced sentence in exchange for his testimony. But Sullivan didn’t hedge his bets. If it was later discovered that Dela Cruz had, in fact, committed a crime Wuterich had been charged with, nobody could be held accountable. It was a risky move on the prosecution’s part, especially because Dela Cruz had already been caught lying to investigators. (Sullivan did not reply to multiple requests for comment.)
In his first sworn statement describing the events of Nov. 19, Dela Cruz blamed the deaths on an Iraqi Army (IA) soldier who had been attached to 1st Squad that day — “I saw 4-6 take off when one of the IAs started shooting at them,” he wrote, adding, “I shot at them when they did not stop. I may or may not have hit the .” A month and a half later, in early May 2006, Dela Cruz revised his story substantially, replacing the Iraqi soldier with Wuterich, who, he claimed, had coerced him into giving a false statement. “He was shooting them from behind,” Dela Cruz wrote, “hitting them in the back of their heads and in the back of their upper bodies/torsos.”
The following week, Dela Cruz wrote another sworn statement “to give more clarifying information regarding the shootings at the white vehicle.” This time, he described watching Wuterich advance on the Iraqis after dropping them and then fire his rifle into their heads “from no more than one foot away.” When Wuterich was finished, Dela Cruz wrote, “he looked up at me with an expression like he was mad. I would say that the expression looked like he was gritting his teeth and I saw his jaw pulsing.” Dela Cruz also acknowledged rumors that he — Dela Cruz — had “pissed inside the head of the dead Iraqi, the one with half his head blown off.” It was true, he said.
Butch Bracknell, a retired Marine lawyer not involved in the Haditha court-martial, who served as a prosecutor and a staff judge advocate, told Task & Purpose that “it’s hard to square lying to NCIS with [Dela Cruz] being a sufficiently dependable witness that the government would rush to immunize him.” He continued, “the lie to NCIS makes him very impeachable at trial and massively weakens his effectiveness as a witness.”
Maloney and Brady were shocked when Dela Cruz was granted immunity — and not just because he had already proven to be an unreliable witness. Their forensic analysis suggested that Dela Cruz himself was most likely the primary shooter in the roadside incident. Brady claims to have communicated this to the prosecution team directly. The conversation, he said, took place in the spring of 2007 at a hotel in Carlsbad, California, where Brady and the prosecutors had met with Dela Cruz and his attorney to discuss the possibility of him becoming a government witness. After the meeting, the group moved to the parking lot so Dela Cruz could physically demonstrate the version of his story that he would ultimately give at Wuterich’s court-martial. Brady watched intently, looking for any new “data” that would require him to alter his scene reconstruction. But what he saw “just didn’t make sense,” he recalled in a filmed interview with Epstein.
“He was changing his position, and he was prescribing the majority of the shots, the fatal shots, to Staff Sgt. Wuterich,” he went on. Brady said he explained all of this to the prosecutors following the demonstration, fully expecting them to shift their strategy accordingly. Prosecutors and investigators are natural allies. For the prosecution to pursue criminal charges knowing its star witness was both contradicted and incriminated by the forensic evidence seemed counterintuitive — even self-defeating. Immunizing Dela Cruz effectively turned Maloney and Brady into witnesses for the defense.
“It was incredibly stressful for me,” Maloney said. “First, we had the stress of trying to resolve the case. This was not an easy reconstruction. And when the science began being ignored by the prosecutors it became even more stressful.”
That was nothing, though, compared to the pressure he and Brady felt from their own NCIS chain-of-command to get behind the prosecution’s narrative. Maloney told Task & Purpose that one of his supervisors actually chastised him for offering testimony that did not reflect “the views of the Marine Corps.”
“We were viewed as traitors,” he added. “Our own headquarters were telling people, ‘Don’t listen to those guys.’ What do you mean don’t listen to us? We’re your forensic experts!”
Brady declined to speak with Task & Purpose for this article, but in his interview with Epstein he described feeling ostracized by the prosecution. “I’ve never been in a case where I was excluded so much,” he said. When asked whether he believed the Marine Corps had stuck uncompromisingly to a “predetermined narrative,” Brady hesitated, then replied, “It certainly seemed to be predetermined, or scripted, if you will.”
Dela Cruz, who was granted immunity in April 2007, wasn’t the first Marine immunized in spite of the NCIS findings, nor would he be the last. Eight months prior, the prosecution had granted immunity to Kallop and a young lance corporal named Humberto Mendoza, a member of Wuterich’s fire team, who had admitted to shooting two unarmed men in two different houses.
Maloney and Brady had identified crucial gaps in the chronology Mendoza offered, but for the longest time they couldn’t explain them. In their reconstruction of the events that transpired in house two, there is a significant period of time during which Mendoza is unaccounted for. “He’ll be involved in a key aspect of one of the scenes, and then he withdraws from it and we don’t know what happens with him,” Maloney explained to Epstein. “[From] an investigative standpoint, that’s a problem.”
The biggest gap in Mendoza’s story overlapped with the brief period during which the massacre in the bedroom is known to have occurred. Mendoza identified himself as the one who first opened the door and saw that the room was full of women and children. According to his testimony, Mendoza then closed the door and notified another member of the team, Lance Cpl. Stephen Tatum, who replied, “Shoot them.” Mendoza said he refused the order and walked into the kitchen. Soon after, he reported hearing gunshots coming from the direction of the room.
Interestingly, Mendoza doesn’t even appear in Tatum’s version of events. The way Tatum remembered it, Wuterich entered the room first and started shooting, effectively declaring all of the occupants hostile. Tatum followed and opened fire. In a sworn statement Tatum gave to NCIS in April 2006, he wrote, “I went to assist SSGT WUTERICH and saw children were in the room kneeling down. I don’t remember the exact number only that it was a lot. My training told me that they were hostile due to SSGT Wuterich firing at them and the other events mentioned leading up to this point. I am trained to shoot two shots to the chest and two shots to the head and I followed my training.”
Maloney, who composed the report on house two, believed Tatum was telling the truth; statements against penal-interest are generally considered highly reliable. Moreover, Wuterich, following the advice of his defense team, did not speak to NCIS at all. He had, however, told Army investigators that he’d instructed his men to “shoot first, and ask questions later” as they were preparing to clear the first house. That was the only statement from Wuterich that Maloney had at his disposal. Thus, in both the initial NCIS reports and in the prosecution’s narrative, Wuterich was treated as the primary culprit in the house two killings.
In January 2007, several weeks after Mendoza was granted testimonial immunity, members of the prosecution traveled to Haditha to conduct an investigation of their own. However, seven more months would pass before Maloney learned that while there the prosecutors had collected a key piece of evidence that would completely change his assessment of what occurred in house two.
Maloney had been puzzled by what he viewed as a critical hole in his analysis of the bedroom: an unstained area on one wall that was otherwise covered with blood. Something or someone would have had to be blocking the blood particles to create such a “void.” But what? Or who?
Maloney was testifying at Tatum’s Article 32 hearing in August 2007 when a defense attorney asked him if he had factored Safah Rasif’s witness statement into his reconstruction of the bedroom crime scene. By that point, Maloney knew there had been a survivor. A prosecutor, he claims, had recently tipped him off that the prosecution team had interviewed the girl in Iraq while conducting its own investigation in January 2007. He had made repeated requests for the statement, to no avail, and was embarrassed to appear unprepared on the stand. But he swallowed his pride. “I told the defense attorney something along the lines of, ‘I was peripherally aware there may have been a survivor, but I never received a statement,” Maloney told Task & Purpose. “I work for the government, I’m not going to hose them.”
The judge called a recess so Maloney could analyze Safah’s statement. Reading it for the first time was a revelatory moment. Safah’s account of the massacre — in which she recalled crouching under the bed in front of the very spot where the void was found — provided the missing piece of the puzzle. More significantly, Maloney said later, it “made it very, very clear that Wuterich was not the first shooter in the room.” According to Safah, the Marine who opened the door the first time was the same Marine who returned shortly thereafter and slaughtered her family. That could only be one member of the fire team. Tatum hadn’t followed Wuterich into the room, Maloney concluded. He had followed Mendoza.
In a pre-trial reenactment, Mendoza demonstrated several times how he had opened the door. He was crouched down with neither hand on his weapon (he was wearing a three-point sling). This aligned with Safah’s testimony, in which she described a Marine opening the door in a crouching position, tossing in a grenade and exiting. The grenade failed to detonate, and 10 long minutes went by before Safah’s aunt opened the door. The same Marine entered, Safah testified, and opened fire. Safah fell to the floor and scrambled under the bed. That would explain the void on the lower portion of the west wall. A Marine, she said, “poked the weapon under the bed and fired.” Miraculously, she wasn’t hit.
Safah then passed out. “When I came to, I did not dare get up,” she recalled. “I was afraid. I saw — I saw corpses in front of me. I wanted to wake up my sister. I was trying to raise her and my hand went right through her head.”
No one seems to have doubted her story. Lt. Col. Paul Ware, the investigating officer for Tatum’s Article 32, wrote in his accompanying report that Maloney’s revised reconstruction “corroborates the statements of LCpl Tatum and Safah,” adding, “the location of the shooters, angles of impact and resulting actions of the victims is logical, concise and convincing.” However, he continued, the purpose of the hearing wasn’t to assess the plausibility of Tatum’s testimony, but to determine whether he entered the bedroom intending to kill unarmed women and children. If Mendoza’s statement was true, Tatum was guilty. But Ware deemed Mendoza an unreliable witness: “Witnesses that testify under grants of testimonial immunity can be viewed as co-actors and must be examined closely.” In other words, by granting Mendoza immunity in exchange for his testimony, the prosecution had made his testimony less credible.
The Marine Corps ultimately charged Wuterich with seven counts of unpremeditated murder for the deaths in the bedroom. Meanwhile, Tatum, the only witness who placed Wuterich in the room, was also ordered to stand trial for his role in the bedroom, and he had already admitted to having identified “some targets as children” before pulling the trigger.
“The prosecutors had Tatum,” Haytham Faraj, a former Marine lawyer who served on Wuterich’s defense team, told Task & Purpose. “They could’ve offered him, say, 15 years with the possibility of parole to testify against Wuterich, and convicted both. But that’s not what they did.”
On March 28, 2008, the first day of Tatum’s trial, the Marine Corps withdrew his charges and granted him testimonial immunity. Four years later, he would take the stand at Wuterich’s court-martial and describe watching his squad leader charge into the bedroom and start shooting. By the time Tatum entered behind him, the air was so thick with smoke that all he could see was “silhouettes of targets,” he said. There was no mention of any child. “The only thing that gave me the idea there was a hostile act in there was Staff Sgt. Wuterich firing,” Tatum testified. If the jurors were incredulous, they had every reason to be. The day prior, the court had heard from Mendoza, another prosecution witness, who said under cross-examination that he notified Tatum that the room was full of women and children, and that Tatum replied, “Shoot them.”
Weeks later, Puckett and Faraj issued a public statement accusing the government of sponsoring “false narratives” and manipulating witness statements to scapegoat Wuterich. They pointed to the contradictory testimonies of Mendoza and Tatum as evidence that prosecutors had suborned perjury. And they wrote of Dela Cruz that the government “persisted in using his false testimony against SSgt Wuterich for the killings” on the road. (Task & Purpose was unable to reach Dela Cruz for comment.)
Not heard at Wuterich’s trial was the one account of the bedroom killings provided by someone who wasn’t a suspect. The defense had asked permission to introduce a videotaped deposition of Safah at the court-martial, but the government objected. Her story — of a Marine who found a room full of women and children and returned to kill them — was never treated as anything more than a footnote in both the pre-trial hearings and the news. She was 12 at the time of the massacre. Her entire family died that day. Her father’s body would’ve been the last she saw as she fled the house.
Tatum’s lawyer, Jack Zimmerman, told me in a recent phone call that he had no “present recollection of someone chasing a live 12-year-old girl” under the bed, and he declined my offer to send him documentation that could help jog his memory. He also declined to make his client available for an interview.
“You’re saying that the government sat on exculpatory evidence for seven months?” Zimmerman asked. “That is a very serious charge. Had I been aware of this, I would’ve been all over it. I was certainly not aware.”
In July 2007, The Washington Post reported that Zimmerman had himself presented Safah’s testimony at Tatum’s Article 32 hearing, and “told the court that a 13-year-old survivor in the back room said the shooter was shorter than she was.” The article noted that “Mendoza is 5 feet 4 inches tall, while Tatum is 6-foot-2.”
Mendoza declined to be interviewed for this article. “I have decided to put that part of my life in the past and I am currently focusing on helping veterans to transition to the civilian sector,” he told Task & Purpose.
On the evening of Jan. 21, 2012, 10 minutes after Puckett delivered his ultimatum to the Marine Corps, his phone rang. It was Kumagai again, the staff judge advocate to Maj. Gen. Waldhauser. The deal was back on.
Three days later, in a courtroom at Camp Pendleton, Wuterich pled guilty to one count of negligent dereliction of duty— “the least serious charge in the entire Uniform Code of Military Justice,” according to Puckett. The judge sentenced Wuterich to a maximum of 90 days in the brig, as well as a reduction in rank to private. It wasn’t much, given the horrific crimes with which he’d been charged. But it was something. Then the judge opened an envelope containing the plea deal and discovered that jail time had been taken off the table entirely. “That’s very good for you obviously,” he told Wuterich.
A gaunt-faced Devil Dog when he first emerged as the poster boy of a failed war, Wuterich was now 31 and divorced from the mother of his three daughters. Speaking for the first time in court, he read a statement apologizing to the survivors of the massacre. He insisted he had never fired his weapon at women or children. And he took pains to make it clear that his guilty plea in no way suggested that his Marines had committed war crimes. He alone was responsible for the “tragic results” of his order to “shoot first, ask questions later.” He explained, “My intent wasn’t that they would shoot civilians. It was that they wouldn’t hesitate in the face of the enemy.”
On the third day of the trial, jurors had heard Sgt. Sanick Dela Cruz describe how he’d watched Wuterich kill the five Iraqis on the road, shooting each of them first from a distance and then again at close range. Wuterich, he said, told him to lie and blame the deaths on Iraqi soldiers. Dela Cruz also expressed regret for urinating into a dead man’s ruptured skull. When Faraj brought up Dela Cruz’s track record of lying and suggested that he had been “fed” his testimony, Dela Cruz replied, “My conscience is clean, sir.” He wasn’t the only Kilo Company Marine who seemed to have had made peace with the questionable decisions he had made that fateful day.
William Kallop made an appearance at the trial, as well. The wealthy son of a New York insurance magnate, he had lawyered up as soon as the allegations against Kilo Company surfaced and was never charged in the case. After leaving the Corps in 2008, he made his way to Wall Street and is now an investment banker at Goldman Sachs. On the stand, Kallop said he believed that Wuterich and his men had followed the rules of engagement. “Once you decide a building is hostile, you can clear it with all means at your disposal,” he said. They had done exactly what Kallop, as their platoon commander, had expected them to do: “conduct movement to contact and kill or capture the enemy I thought was in that building.”
Wuterich had never stopped believing that he’d been in combat on Nov. 19, 2005, despite all of the evidence to the contrary. The one statement he gave investigators was dated three months before Dela Cruz gave the statement that he later claimed Wuterich coerced him to perjure. (“[Wuterich] told me if anyone asks, the Iraqis were running away from the car and the Iraqi army shot them.”) Yet, not only did Wuterich admit to shooting the Iraqis on the road, he owned it. “I believe the ones who set up the ambush fell back to the first house and fired upon us and then fell back to the next house and fired on us,” he said. Adding, “I told to shoot first and deal it with later. They did what I told them to do and they did a good job.”
“I do not disagree with the way things turned out for me,” Wuterich told Task & Purpose in a statement.
“What is remarkable to me is that Frank remains the only Marine to take responsibility for what happened in Haditha,” Epstein said. “The officers who should have been held accountable didn’t take responsibility. None of the enlisted Marines under Frank’s command took responsibility. How is that justice?”
The UCMJ closely parallels the civilian criminal justice system, with at least one major difference — the role of the “convening authority.” This official oversees virtually every aspect of the case, and has the power to overturn guilty convictions, dismiss charges, and grant clemency. And only the convening authority can grant immunity. But because the role is typically filled by a senior-ranking officer in the accused’s chain of command, a conflict of interest is built into the system. The same individual directing the prosecution’s strategy also bears some responsibility for the conduct of the accused. And he may have to deal with the fallout if a conviction affirms that a failure of leadership was a catalyst for the crime or crimes under investigation.
On June 16, 2006, Bargewell, who helmed the Army investigation, submitted his findings to the top U.S. military commander in Iraq. Bargewell’s team had spent three months interviewing Marines at every level of the chain of command — from the members of Wuterich’s squad all the way up to a two-star general — in an attempt to identify the underlying causes for both the massacre and the alleged cover-up. The conclusions, included in a 104-page report, were grim. “Taken as a whole,” Bargewell wrote, the prevailing mentality among the Marines seemed to be that “Iraqi civilian lives are not as important as U.S. lives, their deaths are just the cost of doing business, and that the Marines need to get ‘the job done’ no matter what it takes.”
Bargewell did determine, however, that the Marines of Kilo Company were adequately trained on proper “house clearing and room clearing techniques,” and that they had a “good understanding” of the rules of engagement. He recommended that the Corps — “through the ongoing NCIS investigation” — “determine why several Marines potentially failed to consider and comply with published ROE and the requirement for PID .” He wrote, “One way to reconcile the discrepancies is probably best explained by Corporal Tatum. [Tatum] noted that these Marines knew that mistakes were made on 19 November 2005, ‘but he and all of them are putting it off on training, not personal responsibility’ for their actions.”
According to Ware, the investigating officer, nearly all of the Kilo Company Marines agreed that once a house was declared “hostile” they “can ‘blow it up,’ ‘lead with grenades and gunfire,’ or call in indirect fire to destroy the structure.” (On the contrary, however, the ROE requires troops to positively identify their targets even in close-quarters combat.) Ware pointed out that many Marines in the unit were veterans of Fallujah. “I believe LCpl Tatum’s real life experience and training on how to clear a room took over and his body instinctively began firing while his head tried to grasp at what and why he was firing,” Ware wrote in his Article 32 report. “By the time he could recognize that he was shooting at children, his body had already acted.”
Zimmerman, Tatum’s lawyer, told me that throughout the proceedings his team had argued vociferously that their client had adhered to the rules of engagement in every room he cleared on Nov. 19, 2005. That argument, he explained, was ultimately accepted at every level of the Marine Corps justice system, from the prosecutors “all the way up the chain of command to the convening authority.” He also said he believed Tatum “was only charged because didn’t want to make it look like they were tolerating the killing of women and children,” and that “it would’ve been horrendous to convict a Marine for doing what they were trained to do by their superiors and the entire Marine Corps.”
When the prosecution finally unveiled its case, Mendoza was not charged. Neither was Kallop (whom Dela Cruz — the government’s star witness — had accused of setting fire to house one, where the body of a 36-year-old man was completely incinerated by a “post-incident blaze,” according to NCIS). Instead, 18 charges of unpremeditated murder were filed against one man — a taciturn staff sergeant from small-town Connecticut with no prior combat experience, in Fallujah or anywhere else. Twelve of the murders, the prosecution contended, had been carried out by Wuterich’s own hand. The other six were a result of his instruction to “shoot first, ask questions later.”
The prosecution’s strategy seemed guided by the opinion that the massacre was not in fact the result of an aggressive mindset forged amid the horrors of Fallujah. Rather, this was a case of a Marine gone rogue. As prosecutor Maj. Nicholas Gannon told jurors on the first day of the court-martial, Wuterich “made a series of fatal assumptions” and “lost control of himself.” Or, as Dela Cruz testified, he went “mad.”
So what went wrong? Was it incompetence? A broken justice system? Or a deliberate effort to subvert justice? At this point, it’s impossible to say for sure, but theories abound.
“The case against Wuterich was designed to exonerate the Marine Corps,” Epstein believes. One of Wuterich’s lawyers posited a similar theory in a recent interview. “They didn’t want the tactics to be called into question,” Faraj told Task & Purpose. Maloney said, “It looked to me as solving a difficult political problem on the backs of a couple enlisted Marines, and that didn’t sit well with me.”
Gary D. Solis, a former Marine Corps judge and Vietnam War veteran who now teaches U.S. military law at Georgetown University, acknowledged that there “were more grants of immunity than there should have been,” but he dismissed the idea that the case was bungled deliberately. “Some of the decisions made by the prosecution I can only explain as being made through ineptitude, but not through any conspiratorial intent to twist justice,” he said. As for the strategy of zeroing in on Wuterich, that was “just good trial tactics.” He went on, “If something goes south, you don’t look at somebody down the road, or in the periphery, or necessarily at the trigger-puller. It’s only natural to look at the leader.”
Among those who disagree is one of the trigger-pullers in question, Sharratt. “They just needed to justify all of the money they spent, and the time they wasted, to put one solid face to the end of this thing,” he told me over the phone. Like Wuterich, he expressed remorse for the deaths of women and children. “There’s lots of regret, but mistakes happen in war,” he said. “Second off, maybe they shouldn’t have shot at us from those houses. Or an even better one, how about not set off the IED that killed Terrazas!” When I asked him whether Wuterich’s order to “shoot first, ask questions later” had influenced his actions, he said it had not.
“We took fire from the houses, we cleared by frag and we cleared by fire, and in the end there were some civilian casualties, but at the time we didn’t know,” Sharratt said. “Everybody shot somebody that day, and it wasn’t because Frank held a gun to our head and told us to pull the trigger. We all felt like we were in a combat situation, if you may, and we responded exactly how we were trained. Unfortunately, we were fighting an enemy that fights dirty.”
Before NCIS got its hands on the photographs of the bodies, the images had circulated widely among the men of Kilo Company. In a deposition conducted by Sullivan’s prosecution team on Jan. 19, 2006, a Marine named Lance Corporal James Prentice explained that he and Sharratt had looked at the images together. He said Sharratt didn’t “really say much about any of them except one picture that had, I think, it was a mother and a couple of kids that were shot on the bed.” He continued, “I asked him what happened, and he just said, ‘We just killed them.’ That’s as far as he went into detail.”
The prosecutors asked Prentice to elaborate on something he’d already mentioned — something Sharratt said when he and Wuterich emerged from the last house they cleared on Nov 19, 2005. Prentice had arrived on the scene after the IED strike with Kallop. “[Sharratt] told me that in one of the houses he had shot one of the guys, one the men, with a pistol,” Prentice recalled. “And that their story was going to be that the man in the house — basically, he had an AK-47, and that Sharratt was going to shoot him with a SAW, it jammed, so he used a pistol.”
“And he also told me that Mendoza was a real killer,” Prentice added.
Maloney went to Haditha expecting to find a catastrophic failure of good intentions. Nobody joins the Marine Corps to be a bad guy. As a drill instructor at Parris Island, Maloney had trained hundreds of recruits. He found there were two main types: the guys who were born to be jarheads — “big, bulky, everything the Corps is looking for” — and the kids who needed to prove to themselves that with enough motivation and discipline they could also be that guy. “But they all had something in common,” Maloney said in a recent phone call. “They’re clean-cut, all-American kids, going off to serve their country.”
I was halfway into my next question when he interjected, “So how do you go from that to shooting women and children in Iraq? What have we done that’s enabled a person to do the things that were done in the bedroom of house two and the corner of house one? What makes someone so disconnected from life? That’s not my Marine Corps.”
Maloney was referring specifically to the southwest corner of house one, where a woman died holding her 4-year-old son, who was also killed. Two more children — a 9-year-old- girl and her brother, age six — were also wounded inside the home. The boy told an NCIS agent that he was awoken that morning by the IED explosion. After someone knocked on the door and his grandmother went to answer it, the Marines gunned her down, then tossed a grenade and pushed deeper into the house. “At that point, stated the Marines entered the room the family was in and said, ‘Sorry, sorry,’ before shooting everyone in the room except his sister and himself.”
Other damning testimony also seems to have been downplayed or ignored. Sharratt admitted to NCIS, for example, that he and Tatum returned to house one after it had already been cleared, and that he — Sharratt — cleared it again with his pistol, the only sidearm employed in the incident. He also placed himself in house two. A single 9mm shell casing was found in both. Furthermore, another survivor of house one said four more people were killed there after the initial assault. Her testimony, NCIS noted in a declassified report published on its website, was consistent with accounts provided by a pair of Marines who said they “shot approximately four (4) people, none of which were standing.” While their names were redacted, one was armed with a 9mm pistol. Prosecutors never called Sharratt or Prentice to the stand at Wuterich’s court-martial, nor were the statements of any of the survivors ever introduced.
As Sharratt’s attorneys explained in a formal letter asking that the charges against their client be dismissed, the young SAW gunner from Granger, Indiana had fought in some of the most horrific engagements of Operation Phantom Fury. They described Sharratt as a prototypical grunt — a master of “low-level infantry tactics” — who in Fallujah had saved his squad leader’s life and “fired upwards of 2,000 rounds from his weapon” over four days of constant combat. Accompanying photographs showed Sharratt exchanging gunfire with insurgents in the so-called “Hell House,” the site of a savage close-quarters battle that had taken on a mythic status for the Marine Corps. Tatum and Terrazas were there, too.
In early August, 2007, Sharratt received a notification that his charges had been dismissed. The letter makes for interesting reading. Other legal notices of this type tended to be curt and to the point. Dela Cruz’s, for example, had stated simply, “In accordance with the references, the charges and specifications in the enclosure are hereby dismissed with prejudice,” and was signed by Lt. Col. Bill Riggs, a Marine staff judge advocate. Sharratt’s letter, on the other hand, is high-flown and philosophical, like a piece of heartfelt correspondence from a benevolent patriarch.
Over four paragraphs of florid prose, the author’s tone veered from pensive — “the experience of combat is difficult to understand intellectually and very difficult to appreciate emotionally” — to cryptic — “our way is right, but it is also difficult.” It noted affectionately that “the challenges of this combat environment put extreme pressures on you.” And it even invoked Oliver Wendell Holmes Jr., “one of our Nation’s most articulate Supreme Court Justices,” affirming that “detached reflection cannot be demanded in the face of an uplifted knife.”
The letter, which was soon leaked, seemed to have been written with a broader audience in mind. “You have served as a Marine infantryman in Iraq where our Nation is fighting a shadowy enemy who hides among the innocent people, does not comply with any aspect of the law of war, and routinely targets and intentionally draws fire toward civilians,” it stated. And it concluded, “With this dismissal of charges, you remain in the eyes of the law — and in my eyes — innocent.”
It was almost as if the author had been speaking on behalf of the Marine Corps as a whole, defending its honor at a moment of profound crisis and making the case for the moral rightness of its mission in the grim shadow not only of Haditha’s horrors but of Fallujah’s as well. And it was signed J.N. Mattis.
Lt. Gen. Jim Mattis presided over the initial phase of the Haditha case while also serving as the commander of the I Marine Expeditionary Force. As convening authority, he dismissed both Sharratt and Dela Cruz’s charges, and also immunized them, Mendoza, and Kallop.
When Mattis handed over command of I MEF to Lt. Gen. Sam Helland, in November 2007, only Tatum and Wuterich were still facing charges. Mattis had ordered both Marines to court-martial. However, by that point, Ware had already determined that the case was virtually dead in the water. “The evidence is contradictory, the forensic analysis is limited and almost all witnesses have an obvious bias or prejudice,” the investigating officer wrote in his final report. But many of these challenges were the direct result of decisions Mattis had made.
Several months after Wuterich’s trial ended, then-Secretary of the Navy Ray Mabus quietly ordered the Marine Corps to discharge Mendoza and Dela Cruz for lying to investigators, citing “troubling information about their conduct.” Mabus further explained his decision to Dexter Filkins of The New Yorker last year. “I was stunned to learn these guys were still in the Marines,” he said. “They had taken part in the murder, and nothing had been done.”
Ironically, one result of Mabus’s action is that it seems to have foreclosed any remaining hope for a conviction under the UCMJ. In a recent email to Task & Purpose, Puckett explained that once a Marine’s enlisted service obligations expire, they are “forever beyond the Uniform Code of Military Justice.” (Tatum and Sharratt were already out of the Corps when Wuterich’s trial got underway.) Puckett described his view that “it would be in the best interest of the Marine Corps to refer this matter to Department of Justice for investigation.” That, he said, is probably the only avenue left for bringing a measure of justice to the victims.
On July 30, 2012, Leon E. Panetta, then the Secretary of Defense, established a panel to assess the process of reporting, investigating, and adjudicating allegations of American troops injuring and killing non-combatants in Iraq and Afghanistan. Panetta said in a memorandum to Pentagon leadership that crimes against civilians in combat zones “threatened to undermine” the entire war effort. “Thus,” he continued, “it is critical that our system of military justice be efficient, fair, dependable, and credible.” Members of the panel told reporters that the collapse of the Haditha case factored largely into the decision to launch the review.
The panel ultimately issued 51 recommendations for the Pentagon on “civilian casualty prevention and response,” including one that called for the senior commander in the theater of combat to supersede the accused’s own chain-of-command — effectively acting as a check on the power of the convening authority. The panel had determined that “loyalty to fellow Service members or the unit” and “fear of career repercussions” factored into a pervasive relctance among troops to report comrades for unlawful killings.
The recommendation prompted immediate backlash from military officials. Mattis was among those who strongly opposed the change, which was never implemented. “The UCMJ functions as intended,” he told the panel. “I can detect no area where significant reform is necessary.”
Just before he left the White House, President Barack Obama signed the Military Justice Act of 2016, which Sen. John McCain hailed as “the most significant” reform to the UCMJ since it was enacted in 1950. Set to take effect no later than Jan. 1, 2019, the legislation will, among other things, restrict the powers of the convening authority to reduce sentences and overturn convictions, but only in certain cases.
Bracknell, the former Marine staff judge advocate and prosecutor, welcomes the changes but said they still “left some of the biggest flaws in the system unaddressed.” In an email, Bracknell proposed a list of specific measures that he believes would help ensure prosecutors, Article 32 investigation officers, and staff judge advocates carry out their duties without succumbing to pressure from “any counsel or government representative.” To that end, serious criminal cases, he said, should not be presided over by convening authorities, but rather professional prosecutors who answer “to no one but the law.”
In 2010, Mattis testified under oath that he had pored over all of the available evidence concerning the Haditha case before he initiated the process of dismissing charges and granting immunity. “I maintained a page count,” he said. “I read over 9,000 pages of testimony, of evidence, of statements of investigation reports from NCIS.” When asked by a lawyer why he had been so scrupulous, the general replied, “The environment in which [Kilo Company] was operating I considered to be the ethically most challenging environment that I’d experienced in over 35 years of service. I did not want to have information filtered to me through lenses other than my own.”
Sec. Mattis declined to be interviewed or to answer questions about his role as convening authority of the Haditha court-martial. However, after the Pentagon requested that questions for the Secretary be submitted in writing, spokesperson Dana W. White responded on his behalf. Asked why prosecutors put on testimony that was not supported by the forensic evidence, White pointed to “significant” forensic challenges with the investigations — for instance, that evidence had to be collected in a war zone.
“The loss of any innocent life is a tragedy,” she wrote, insisting that making sense of it was “near impossible.” She added, “Then, and now, the Armed Forces of the United States are committed to strict adherence to the rule of law and the law of armed conflict, and continually train to this standard and when necessary investigate incidents and strive to hold those responsible appropriately accountable in accordance with the UCMJ.”
Mattis has openly discussed his handling of the Haditha case only once. In a glowing profile of the “Warrior in Washington” published in The New Yorker last May, he explained that he chose to reserve the most severe punishments for officers in the suspects’ chain of command. Lt. Col. Jeffrey Chessani, the commander of 3rd Battalion, 1st Marines, and two other officers — a captain and a first lieutenant — were immediately relieved of duty upon the unit’s return from Haditha. All three were charged in connection with the manner in which the incident was reported or investigated. None, however, were convicted.
“As it went down lower, I was not as harsh,” Mattis said. “You have to have a degree of humanity when you’re given the authority to lock your own troops up in jail for the rest of their life, because they have the guts to volunteer to go into that situation.”
In the spring of 2006, just as news of the massacre was beginning to emerge, Mattis approached a San Diego-based company called Strategic Operations — which designs, builds, and operates “hyper-realistic” training facilities for the U.S. military — with a request: could the company convert a 32,000-square-foot abandoned tomato-canning plant on Camp Pendleton into a replica of a city block in Iraq? Kit Lavell, the executive vice president of Strategic Operations told Task & Purpose that Mattis wanted a combat simulator that would condition infantrymen to be able to quickly distinguish between enemy and civilian targets when operating in urban environments.
The simulator, called the Infantry Immersion Trainer, opened the following year. “There was definitely a sense of urgency,” Lavell said.
Nearly a year after Wuterich’s court-martial concluded, Epstein flew to Pittsburgh for one final interview. Sharratt, wearing a blue-and-white-striped American Eagle polo shirt, sat facing the filmmaker with a cold expression. The conversation was tense and uncomfortable. “Can you help me understand what happened in Haditha?” Epstein asked. Sharratt took a moment to ponder the question and then locked eyes with Epstein.
“From the beginning of this interview, you said you wanted the American population to know what war is like, and what happens in war,” he replied. “Well, this is a clear definition of what happens in war. There’s good kills, and there’s bad kills, and when you start classifying the good ones from the bad ones you turn this war into another Vietnam and there isn’t going to be a winner.”
Epstein then held out a photograph. “Are those good kills or bad kills?” he asked. Staring at the bed full of bodies in house two, Sharratt didn’t flinch. “Those are just kills,” he said.
Epstein’s film, House Two, debuted at the 2018 Tribeca Film Festival.