Lt. Col. Jeffrey Chessani

Prosecutors in the case against a Marine officer facing charges for a fatal 2005 confrontation in the insurgent-held town of Haditha, Iraq, apparently are putting a lid on the defense’s access to witnesses and evidence.

Investigating Officer Col. Christopher Conlin earlier ordered the defendant, Lt. Col. Jeffrey Chessani, to go before a general court-martial on allegations that he didn’t properly investigate or report the encounter that left 24 Iraqis, including 15 civilians, dead.

Chessani had been brought up on the military charges after Time magazine accused the Marines of “massacring” civilians in the Anbar Province firefight, and Rep. John Murtha, D-Pa., later publicly accused the Marine officers of a “cover-up.”

When Conlin’s Article 32 hearing ruling was announced a few weeks ago, defense counselors filed a request to reopen the hearing because prosecutors had added extra charges to the case when the hearing was nearly concluded. They said the prosecutors didn’t support the charges with evidence and they’d had no opportunity to defend against them.

The military agreed to that request, setting aside time this week for a reopened Article 32 hearing, but officials with the Thomas More Law Center told WND as today’s hearing date approached, the military initially advised defense lawyers that none of their 13 requested witnesses would be available, nor would new evidence.

“The government’s refusal to make any of our requested witnesses available makes the new hearing nothing but a sham,” said Richard Thompson, president and chief counsel for the center.

“It was clear to any objective observer of the original Article 32 hearing that the charges against Lt. Col. Chessani would not hold up at court-martial,” Law Center spokesman Brian Rooney told WND. “These so-called ‘refinements’ are a desperate attempt to find some way to hold our client criminally liable for doing his duty.”

Rooney told WND that in the hours as the hearing time approached, the Law Center had been told one witness, possibly two, may be available. But he said since the military court system doesn’t allow defense lawyers to demand the testimony of witnesses at this point, they will document the prosecution’s actions, and make them the subject of later appeals if needed.

“We believe [the late addition of charges] did not follow the rules,” he told WND.

The defense team noted that a number of Marine officers were aware of the firefight that also killed one Marine, and none had indicated any need for further investigation or reports.

“In the final analysis, given the overwhelming evidence in this case, it is absurd to conclude that Lt. Col. Chessani is criminally liable for not suspecting a … violation. Moreover, in November 2005, there was no order requiring an investigation into the deaths of noncombatants resulting from combat action. … Thus, Lt. Col. Chessani’s actions were consistent with those of a reasonable and prudent commander, particularly in light of the fact that his immediate superior. Col. Davis, advised him on the evening of 19 November 05 that no investigation was required because it was a ‘bona fide combat action,'” the Law Center argued.

In the specific hearing, the defense team argued that, “despite the government’s claims to the contrary, these additional charges did not arise out of the facts and evidence presented during Lt. Col. Chessani’s Article 32 hearing – indeed … the opposite is true.”

“Rather, it is defense’s reasonable belief that these additional charges were the direct result of the recommendation of the investigating officer for Capt. Stone. It is evidence that the government panicked when it received the dismissal recommendation for Captian Stone … resulting in a last minute decision over the weekend to draft new additional charges for Lt. Col. Chessani … to avoid a similar result.”

Another report about the same time, from Lt. Col. Paul Ware, who presided over the case against Lance Cpl. Justin Sharratt, also described the allegations as “unsupported” and “incredible.”

Eight Marines originally were accused in connection with the battle. Counts against Stone were dismissed when officials ruled the government did not meet the burden of probable cause in his case.

Sharratt’s case was not yet finalized, and other cases still are pending against Staff Sgt. Frank D. Wuterich; Sgt. Sanick P Dela Cruz; Lance Cpl. Stephen Tatum; 1st Lt. Andrew Grayson and Capt. Lucas McConnell.

On the day of the firefight, Rooney said, Marines came under an attack that included both gunfire and explosives. One Marine in a Humvee was killed and two more were injured, and the resulting house-to-house battle between the outnumbered 4-man Marine “fire team” and the insurgents resulted in 24 Iraqi deaths, including 15 civilians.

Testimony also showed terrorists in strongholds such as Haditha had set up bases in a school, a mosque, and a hospital to be used to attack U.S. forces, and documentation showed that one terrorist suspected in the Haditha battle was tracked by an aerial drone to another house, from which he emerged a short time later holding a baby.

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