When Marine Staff Sergeant Frank Wuterich was handed a suspended sentence of three months on Wednesday for his role as squad leader of a group that massacred 24 unarmed Iraqis in Haditha six years ago, it naturally sparked an outrage. To many here in the U.S., in Iraq, and in the Muslim world writ large, this will likely be seen as the U.S. military excusing a heinous crime. But we should instead look at this, even if it is difficult to do so, as the price we pay for a justice system that prioritizes the rights of the accused over a desire to punish criminals.
Wuterich was the last remaining Haditha Marine still in criminal jeopardy and thus the last hope for Iraqis and others seeking justice for the victims. Khalid Salma, a Haditha city councilor and lawyer for the victims declared the light sentence “an assault on the blood of Iraqis.” Reasonably, he said he believes that a three month sentence might be appropriate for “small crimes.” But killing 24 innocent people, and only receiving a punishment of three months? This is an assault on humanity.”
Though he was sentenced to three months confinement — along with reduction in rank to private — Wuterich will actually serve no jail time at all as part of his arrangement. He pled guilty only to dereliction of duty and has issued a public statement apologizing to the victims’ families for their loss but denying that he ever fired a shot or intended for any civilians to be killed.
The November 19, 2005, incident sparked bitter controversy here in the United States. Early media reports and a preliminary military investigation portrayed the incident as a premeditated murder spree in retribution for the death of Lance Corporal Miguel Terrazas, who was killed by an IED. Democratic Representative Frank Murtha, himself a retired Marine Reserve colonel, called the incident “cold-blooded murder” and accused military brass of and “covering up” the incident.
Eight marines were charged in December 2006 for the incident but a formal Article 32 investigation — a hearing to determine whether a court martial is appropriate — found that there was no grand plan to murder innocents or for execution-style killings. Rather, a group of angry, exhausted, and frightened Marines simply did not care whether the people they were killing were combatants. Charges were eventually dropped against six defendants. A seventh, First Lieutenant Andrew Grayson, who was charged with covering up the incident after the fact, was acquitted. That left only Wunderich, the immediate leader of the men who killed the victims, who was charged with negligent homicide.
A December 2011 New York Times investigation, based on some 400 pages of interrogations — many classified and which had for some reason been left behind in an Iraqi junkyard when American troops departed the country — only added fuel to the outrage. They portrayed a culture where the killing of civilians became routine, described as “a cost of doing business” by Marine Major General Steve Johnson, the commander of American forces in Anbar Province at the time. So much so that the initial reports of 24 civilians killed by his Marines was considered neither surprising nor cause for investigation by higher-ups in -heater, who shrugged it off as another day in the war.
Brian Rooney, the attorney for Lieutenant Colonel Jeffrey Chessani, the highest-ranking Marine charged in the case declared before his charges were dropped, “If it’s a grey area, fog-of-war, you can’t put yourself in a Marine’s situation where he’s legitimately trying to do the best he can.” It’s a popular view in this country and long has been; the same sentiments were prevalent during the war in Vietnam, when many back home viewed incidents like the My Lai massacre as terrible but understandable.
The Iraq War, even more so than Vietnam, pitted American forces against unconventional combatants who at times gladly used civilians — including women and children — to carry out attacks. James Mattis, now the four-star head of Central Command and then the two-star commander of I Marine Expeditionary Force, noted in dismissing the charges against two of the accused that the country was “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.”
Even so, it’s hard to write off the killing of a 76-year-old man in a wheelchair or the calm execution of six children huddled in a room as “the fog of war.” No, it was a war crime, pure and simple.
But this wasn’t ultimately a case of Marines protecting their own and disregarding the lives of slain Iraqis. While some commanders in Iraq were indeed callous about the attack early in the investigation, there was eventually a real investigation and the filing of formal charges against eight of the leaders and perpetrators.
Even though we now have a pretty good idea what happened that day, it’s incredibly hard to prove it in court without the active cooperation of reliable witnesses. Alas, as the Associated Press reports, “The prosecution was also hampered by squad mates who acknowledged they had lied to investigators initially and later testified in exchange for having their cases dropped, bringing into question their credibility.” And the few Iraqi survivors declined to testify, fearing for their safety.
While Wuterich admits to telling his men to “shoot first and ask questions later,” he claims “the intent wasn’t that they would shoot civilians, it was that they would not hesitate in the face of the enemy.” While that strains credulity, it opens room for reasonable doubt.
Sergeant Sanick Dela Cruz testified that Wuterich shot people at close range and told him, “if anyone asks, the Iraqis were running away from the car and the Iraqi army shot them.” But, again, the fact that Cruz himself admitted to taking part in the killings — and urinated on the skull of one of the dead Iraqis — but was given immunity in exchange for his testimony could surely have diminished his credibility.
In the end, then, prosecutors apparently reckoned that a plea bargain to a relatively minor crime, but one that would end Wuterich’s Marine career in disgrace, was the best they could do.
Awis Fahmi Hussein, who survived the attacks, lamented, “I was expecting that the American judiciary would sentence this person to life in prison and that he would appear and confess in front of the whole world that he committed this crime, so that America could show itself as democratic and fair.”
Unsatisfying as it seems, a democratic outcome is exactly what we got. In an authoritarian society — probably even in today’s post-Saddam Iraq — governments will happily sentence citizens to jail to slake the public thirst for justice. In a liberal democracy, however, we put a very high burden on the state in taking away the liberty of a citizen accused of a crime.
Wuterich and several of his squad mates are almost certainly guilty of war crimes. That he got such a light sentence and the others got off Scot free will doubtless rub salt in the wounds of families who sought justice, And this outcome may well harm America’s image in a part of the world where it is already poor. But, ultimately, preserving the fairness and impartiality of the American legal system is more important, and we should be glad that it won out. That’s a painful and difficult compromise to make, but the fact that it’s difficult and it happened anyway is exactly why we should be glad we live in a liberal democracy. If we were to lower the bar to make it easier to convict those we “know” are guilty, we would also make it easier to unjustly imprison the innocent.
From O.J. Simpson to Casey Anthony to the hundreds of cases that don’t garner national attention, the America court system routinely exonerates people that “everyone knows” are guilty of murder. Even more frequently, people accused of major crimes are allowed to plea down to lesser ones when prosecutors fear they won’t be able to convict or otherwise don’t want to risk going to trial.
That’s not satisfying. It’s probably not even justice. But it beats the alternative.
James Joyner is managing editor of the Atlantic Council. This essay was originally published on The Atlantic.