Rules of engagement a key issue in Marine’s court-martial

Reporting from Camp Pendleton -- Staff Sgt. Frank Wuterich and the jurors in his court-martial are all wearing crisp Marine uniforms. All have had combat experience. And all have known Marines killed in combat.

But the defendant and those who may decide his fate come from different eras in the Marine Corps mission in Iraq, divided by that November morning in 2005 when 24 unarmed civilians in the town of Haditha were killed by Marines in Wuterich’s squad.

All eight jurors served after that event, which scandalized much of the American public and shook the Marine Corps.

The differences between Wuterich’s deployment and those that followed are coming together in the trial’s slow-moving testimony about rules of engagement, the legacy of the Iraq war’s signature battles and how much risk a Marine should take to avoid killing noncombatants.

Some observers say Haditha will be remembered in the same negative light as the My Lai massacre in Vietnam. But it also may be remembered as the event that prompted the Marine Corps to change its training to put greater emphasis on avoiding civilian casualties.

Whether in a military court-martial or a civilian trial, defense attorneys seek the same thing in a jury: empathy.

Wuterich’s lawyer, Haytham Faraj, questioned prospective jurors to see whether they could place themselves in the boots of an untested squad leader deployed in the fall of 2005, when the rules for combat may have been different. He asked them if they had served in Iraq, whether they had “cleared” houses and, if so, whether they had fired their weapons.

The answers may not always have been to his liking.

One prospective juror said that before a Marine clears a room by firing his M-16 rifle and throwing grenades (as Wuterich did), he would have to be confident that he was under fire (which Wuterich was not).

That Marine is on the jury.

Nearly all of the prospective jurors said they had experience clearing houses by separating military-age males from women and children. None said they had killed anyone in the process.

Faraj’s questioning got so close to the details of the case that the judge admonished him against testing to see which jurors would be most understanding of Wuterich’s actions.

Wuterich is charged with manslaughter, assault and dereliction of duty in the killing of the 24, including three women and seven children. In unsworn testimony at his preliminary hearing, he admitted giving his Marines an order to “shoot first and ask questions later.”

During testimony, which got underway at Camp Pendleton last week, Wuterich’s former platoon commander said that once a house is declared “hostile,” any use of force — including tanks and air power — is justified.

No Marine, William Kallop said, needs to take time to distinguish between combatants and noncombatants in such a situation. Nothing in the training before Haditha, he said, suggested that Marines had to make such distinctions.

The prosecution countered with testimony from a Marine lawyer, who said Kallop’s interpretation of the rules of engagement was wrong.

Defense attorneys repeatedly have reminded jurors that Wuterich deployed just months after the second and largest of the 2004 battles in Fallouja, the bloodiest urban fighting for Marines since Vietnam.

During Fallouja, one defense witness testified, the motto was “every room with a boom” — Marine jargon for hurling a grenade into a room being cleared. In Fallouja, civilians had largely fled, leaving the city to insurgents; in Haditha, insurgents were thought to be hiding among terrorized families.

Wuterich and other Marines from the 3rd Battalion, 1st Marine Regiment were told repeatedly that the mission to clear insurgents would be difficult, that Haditha “would be another Fallouja,” Faraj said.

As investigations were ordered into the Haditha killings, Commandant Gen. Michael Hagee went to Iraq in the spring of 2006 to deliver a blunt message, according to Marines who were there: no more Hadithas.

It echoed a dictum issued by Marine leaders in 2003, ahead of the assault on Baghdad: “Engage your brain before you engage your weapon.”

Aine Donovan, a former ethics teacher at the U.S. Naval Academy who now is executive director of the ethics institute at Dartmouth College, credited Hagee with beginning a drumbeat of instruction to young Marines about avoiding civilian casualties.

So although the rules of engagement may remain the same pre- and post-Haditha, Donovan said, the interpretation is sometimes different, such as with the definition of hostile.

Not everyone is comfortable with the changes.

“The rules of engagement have greatly tightened, often leaving the troops confused,” said Bing West, former assistant secretary of Defense and author of two books about Marines in Iraq. “When a battalion needs to consult a lawyer before applying fires, it is unfair of the system to single out the squad leader.”

In July 2006, two months after the commandant’s trip to Iraq, reporters were invited to watch Marines being trained in Twentynine Palms, northeast of Palm Springs, for an upcoming deployment.

In a 72-hour field exercise, enlisted troops were confronted with scenarios in a faux Iraqi village populated with role players. The days of Fallouja, when mere suspicion of a sniper justified calling in air power to flatten the house, are over, the Marines were told.

“Because someone is hostile inside a house, that doesn’t mean the entire house is hostile,” a colonel said.

The post-Haditha era was underway.

And when then-Major Gen. John Kelly came home in 2009 after a year as the top Marine in Iraq, he told a San Diego military support group that “what I am very proud of is the number of human beings we did not have to kill.”

His Marines, Kelly said, “resorted to force last, and always restrained its use when we did go to the guns.”

tony.perry@latimes.com