The Law Offices of Haytham Faraj, PLLC
My successful defense of Staff Sergeant Wuterich in the Haditha, Iraq, war crimes case continues to be the subject of inquiry, review and hand wringing. As early as 2007, I along with the rest of the Wuterich defense team realized that Wuterich was not the shooter in the houses and had not killed any women and children. The evidence was clear from the statements and the forensics. It was confirmed when we deposed the three survivors in the murder houses. Yet prosecutors, commanders, Congress, Rumsfeld and the president (Bush) persisted in pushing the case forward against Wuterich while immunizing the killers.
Now a report from the DoD discussed in a NY Times article suggests the system of prosecuting war crimes allegations should be changed to shift responsibility to theater commanders rather than the service to which the alleged perpetrators belong. Perhaps that is a good idea and perhaps not but it has nothing to do with Haditha. It misses the mark on what happened in this case and fails to consider a number of variables that deserve consideration.
- The defense was better prepared than the prosecution. We did reenactments, investigated, facts and were honest about the value and meaning of the evidence. In short the military criminal defense lawyers representing Wuterich were better prepared and more honest about the evidence than the military prosecutors.
- The prosecutors embraced conclusions -as they always do, regardless of the service- that were unsupported by the evidence and immunized unit members that should not have been immunized based on those early conclusions.
- Prosecutors unlike criminal defense lawyers tend to see facts in isolation. Not one prosecutor was willing to ask the simple question, why would an otherwise outstanding Marine suddenly decide to go crazy murdering women and children? There was no reason, no motive, and no evidence to support the Wuterich is a killer theory. Yet they embraced it. Most people call this common sense.
- The failure of prosecutors to accept that the Marine Corps was teaching that in urban combat, you shoot first and ask questions later. THAT IS AN INDISPUTABLE FACT. I as a former infantry officer knew it. The officers in that battalion, including the intelligence officer Major Jeffery Dinsmore, confirmed it. Yet prosecutors and the Marine Corps wanting to win points in the media denied it. And most of the shallow, arrogant and ignorant reporters covering the story jumped on what they were being fed.
No one spoke to me or any member of the defense team before preparing the report. They are still litigating Haditha to figure out why they could not get any convictions. What they fail to understand is that the defense was more competent, better prepared, and more honest about the evidence. It does not matter who was prosecuting the case. When they immunized the killers to get them to rat on their squad members, they were destined to lose the case.