Pendleton case could hurt image of Marines

Eight face charges in slaying of Iraqi
By Rick Rogers
UNION-TRIBUNE STAFF WRITER

August 27, 2006

The first hearing for Camp Pendleton service members charged with killing an Iraqi man could do more than suggest individual guilt or innocence. It also could tarnish the image of the Marine Corps and focus attention on an increasingly unpopular war.

Seven Marines and a Navy corpsman from the Kilo Company, 3rd Battalion, 5th Marine Regiment are accused of killing an unarmed civilian on April 26 in Hamdaniya, then trying to cover it up.

The defendants have been confined in Camp Pendleton's brig since early May and could face the death penalty if convicted on charges such as kidnapping, assault and premeditated murder.

Two of them – Pfc. John J. Jodka Jr. and Cpl. Marshall L. Magincalda – are set to begin their Article 32 hearing Wednesday. The proceeding will help determine whether they should move on to courts-martial.

All the accused will undergo such hearings in the coming weeks. They will appear before an investigating officer assigned to weigh evidence presented by prosecutors and defense attorneys. The officer will then submit his findings to Lt. Gen. James Mattis, commander of the 1st Marine Expeditionary Force.

Mattis, a well-respected officer who led Camp Pendleton troops on key combat campaigns in Afghanistan and Iraq during recent years, will decide whether any of the suspects should be court-martialed and which charges they would face.

After the Hamdaniya case wraps up, Camp Pendleton will probably host the hearings and trials of an even bigger case involving more of its service members. On Nov. 19, a dozen Marines allegedly killed up to 24 men, women and children in Haditha, Iraq. Investigators examining the Haditha incident said the suspects killed the Iraqis after a roadside bomb claimed one of their own.

The hearings and probable courts-martial of both cases will suggest problems within the Corps and the Bush administration's handling of the Iraq War, said retired Brig. Gen. Walter Donovan, a former senior legal adviser for the commandant of the Marine Corps.

Traditionally, the Marines have been known for their extraordinary ability to serve combat duty in the most challenging environments. That includes the insurgent-filled Al Anbar province, their main deployment area in Iraq.

True or not, the Hamdaniya and Haditha accusations have already tarnished the Corps' image of stoic professionalism, Donovan said.

“I don't think it is a great surprise. The troops are facing a foe that does not (wear) a uniform, one who employs children and who darts in and out of alleys,” he added. “The Marines face extraordinary uncertainties.”

The impending court proceedings will probably prompt more Americans to question why the United States ever invaded Iraq about 3½ years ago, said retired Marine Lt. Col. Gary Solis, a Vietnam veteran, former military judge and the Corps' chief of oral history from 2001 to 2004.

They also might highlight “problems in command responsibility,” said Solis, who grew up in San Diego, earned a bachelor's degree at San Diego State University and teaches law at West Point and Georgetown University. “I see it as leadership and training gone wrong.”

It seems to be a no-win situation for the Marine brass, he said.

Solis described the likely scenarios: “If (the defendants) are all found guilty, then the Marine Corps looks bad. If they are all found not guilty, the Marine Corps still looks bad because it looks like it let them go. If some are found guilty and others are not, then the question is: How could that have happened if they were all charged with the same crimes?”

It's disturbing to note the large number of service members – especially officers and noncommissioned officers – implicated in the Hamdaniya and Haditha incidents, said retired Rear Adm. John D. Hutson, who was the Navy's top military lawyer from 1997 to 2000 and is currently dean of the Franklin Pierce Law Center in Concord, N.H.

“If they are guilty, it is going to cause the Marine Corps to look at recruiting, training and leadership,” he said. “And convictions would cause a morale hit and a public relations hit. The Marine Corps is a very proud organization with many reasons to be very proud.”

Hutson worries that if the cases reach courts-martial, juries composed of the defendants' peers might acquit them even if there are strong indications of guilt.

“I hate to say it,” he said, “but the repercussions of a shaky conviction would be less traumatic for the Marine Corps than the repercussions it would face of acquittal in the face of overwhelming evidence.”

Like Solis, Hutson sees little that can be spun into positives. But unlike Solis, Hutson sees a political facet to the cases.

“No matter how they turn out, the (Bush) administration will take a hit. The hearings and possible trials remind people that the war is not going well,” Hutson said.

He believes the cases bring up images of the My Lai massacre, which conjures memories of the Vietnam War, and the administration has done everything to keep people from linking that conflict with the Iraq war.

“There is no way for the Marine Corps to spin this,” Hutson said. “It's just another bad news story for a war spinning the wrong way.”

Rick Rogers: (760) 476-8212; rick.rogers@uniontrib.com

Ellie