A military prosecution of U.S. Marines involved in a 2005 firefight against insurgents in Haditha, Iraq, is tainted by "unlawful command influence," according to a judge in the case against Lt. Col. Jeffrey Chessani.

The ruling came yesterday from Col. Steven Folsom, who is hearing the case against the officer who was not at the scene of the attack on U.S. Marines, but is facing a court-martial based on allegations he did not accurately report or thoroughly investigate combat action between Marines he commanded and insurgents that resulted in the deaths of 15 Iraqis.

Lt. Col. Jeffrey Chessani

The Nov. 19, 2005, firefight also resulted in 14 Marine casualties including one death.

"Considering the politically charged nature of this case – and particularly this motion – Col. Folsom made a courageous decision," said Richard Thompson, president and chief counsel of Thomas More Law Center, which is defending Chessani.

The motion that cited circumstances including a public condemnation of the U.S. Marines by U.S. Rep. John Murtha, D-Pa., before the conclusion of the investigation was brought to the military court by Law Center attorneys Robert Muise and Brian Rooney, both former Marines.

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Courts consider unlawful command influence the "mortal enemy of military justice" because it signifies that at some point during the development or prosecution of the case, decisions were made based on a commander's opinion or desire, rather than the facts themselves.

"Although the case is far from over, yesterday's ruling now forces prosecutors to prove beyond a reasonable doubt that: (1) the facts upon which the unlawful command influence is based are untrue; (2) those facts do not constitute unlawful command influence; or (3) the unlawful command influence will not affect the proceedings," the Law Center said.

"The taint of unlawful command influence started from the inception of the investigation, when high-ranking Pentagon officials decided to make Lt. Col. Chessani a political scapegoat to appease a liberal anti-war press and politicians," Thompson continued.

"This ill-conceived prosecution has resulted in the removal of one of America's most effective combat commanders in Iraq by the Marine Corps' own standards. Although nothing can undo the harm caused to our nation and to Lt. Col. Chessani and his family, this ruling gives us hope that the military justice system will rise above the politics that fomented this prosecution and allow Lt. Col. Chessani, who devoted more than 20 years to the Marine Corps and to the defense of our nation, to get on with his life," he said.

Folsom's ruling said the defense met its burden of presenting "some evidence" of actual and apparent unlawful command influence. The Law Center said the decision was based on evidence that various generals who controlled the disposition of the case may have been influenced by Marine lawyer Col. John Ewers, who attended dozens of closed-session meetings in which the case was discussed.

Ewers was an investigator of the Haditha firefight, and is a witness prosecutors plan to call in the case.

"Consequently, he should not have been involved in any of the meetings," the Law Center said.

The counts against Chessani were triggered following a house-to-house, room-by-room battle four of his enlisted Marines engaged in on that day in 2005 after they were ambushed by insurgents in Haditha.

"Even though Lt. Col. Chessani promptly reported the events of that day to his superiors, including the deaths of 15 noncombatant civilians caught in the battle, nobody in Lt. Col. Chessani’s chain of command believed there was any wrongdoing on behalf of the Marines," the law firm said.

But months later, a Time magazine story "planted by an insurgent propaganda agent," caused Pentagon officials to order the investigation, the law firm said.

The article was followed quickly by Murtha's comments. He held a news conference and announced he'd been told by the highest levels of the Marine Corps there was no firefight and Marines "killed innocent civilians in cold blood."

"All the information I get, it comes from the commanders, it comes from people who know what they're talking about," Murtha told reporters.

Those statements conflicted with investigative results from the military itself. A first investigation by Army Col. G.A. Watt found "there are no indications that (Coalition Forces) intentionally targeted, engaged and killed noncombatants." Later, Army Maj. Gen. Aldon Bargewell found no coverup, the law firm said.

Folsom previously ruled that former Marine Commandant Michael Hagee will testify about his conversations with Murtha regarding the firefight in Haditha but that Murtha is being given an exemption and will not have to testify about his statements.

Eventually eight Marines were charged, but counts against five already have been dropped. Those defendants are Lance Cpl. Stephen Tatum, Capts. Randy Stone and Lucas McConnell, Sgt. Sanick P. Dela Cruz and Lance Cpl. Justin Sharratt.

The case against Chessani continues, as do cases involving 1st Lt. Andrew Grayson and Staff Sgt. Frank Wuterich.

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Previous stories:

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Jury to 2nd-guess Murtha's Haditha case

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Haditha charges against another Marine reduced

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Haditha Marine's hearing called 'sham'

Court-martial recommended for Haditha Marine officer

Marine officer under fire gets support on 2 fronts

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