Haditha Unraveled

Lt. Col. Paul Ware can be blunt. As the investigating officer in the Haditha affair, he has the job of assessing how strong a case the prosecution has against Marines suspected of killing 24 civilians after being ambushed two years ago in western Iraq. Haditha is the highest-profile atrocity case since the start of the war. For more than a year, prosecutors have assembled evidence against four shooters in Kilo Company, including Staff Sgt. Frank Wuterich, 26. But in a painstaking, 37-page report written earlier this month and obtained by NEWSWEEK, Ware tells the military lawyers their case is weak: "The evidence is contradictory, the forensic analysis is limited and almost all the witnesses have an obvious bias or prejudice."

The Haditha case seems to be unraveling. Already, all charges have been dropped against two of the shooters. Marine Gen. James Mattis announced last week that a third Marine, Lance Cpl. Stephen Tatum, would face a court-martial for involuntary manslaughter, far less than the original murder indictment. And Ware has recommended a similar reduction in charges against Wuterich. (In a separate proceeding, a lieutenant colonel will be court-martialed for failing to accurately report and investigate the killings.) Until not too long ago, the case had the aura of an unambiguous revenge massacre: after losing a buddy in an IED attack, the Marines killed five unarmed men who pulled over and stood outside their car. Then the Marines moved from one home to the next believing they were under fire, and killed men, women and children.

But the sinister reality of insurgents' hiding among civilians in Iraq has complicated the case. And even in conventional wars, battle-zone murder charges can be hard to prove. Investigators did not start gathering evidence until months later, when Time Magazine published an account of the killings. By then, forensic and ballistic evidence was scant and autopsies weren't feasible; Iraqi families refused to let the military exhume the victims' bodies. Prosecutors were left to rely largely on the statements of the Marines. Earlier this year they gave immunity to two of the shooters in exchange for their testimony. But Ware suggests in his report that prosecutors immunized the wrong guys. Both witnesses, he writes, "have very low credibility," and he believes their accounts will not hold up in a cross-examination.

One of them, Sgt. Sanick Dela Cruz, told investigators under oath last year he opened fire on the five Iraqi men after the IED attack because they started fleeing. But he changed his story after getting immunity, testifying in a pretrial hearing in August that the men had not run and that Wuterich had done the shooting. Dela Cruz told the court he'd fired only at their dead bodies. Though Wuterich himself admitted to shooting the men in a "60 Minutes" interview earlier this year, conflicts in the sum total of testimony led Ware to recommend dropping the murder charge. As for Lance Cpl. Humberto Mendoza, the other witness, Ware describes his testimony as a "desperate attempt to cover up lies with more lies." (Ware declined to comment, but a lawyer close to the Haditha case confirmed his report's authenticity. Dela Cruz's lawyer declined to comment; Mendoza's attorney could not be reached.)

Why did Dela Cruz and Mendoza get immunity in the first place? A Marine spokesman refused to comment on the process. But a person close to the case, who did not want to be named so as not to prejudice its outcome, says it appeared investigators had marked Wuterich from the start as the instigator and the "guy to get." While still in Iraq, he alone among Kilo Company Marines refused to answer investigators' questions without a lawyer, a fact that might have heightened suspicion against him. Ware, more than a year later, predicts in his report that prosecutors will succeed in convicting Wuterich of nothing more than dereliction of duty. On the prospects of convicting Tatum on any of the charges, Ware says, "the evidentiary hurdles are too great."

Ware, described by colleagues as meticulous, shows sympathy for the Marines. He says Wuterich's suspicions regarding the five Iraqis standing outside their car were understandable: the Marines had been told by intelligence officers to watch for an IED attack followed immediately by a car bombing. Ware also says some training the Marines received conflicted with their rules of engagement and led them to believe that, if fired upon from a house, they could clear it with grenades and gunfire without determining whether civilians were inside. After the Haditha killings, the commandant of the Marine Corps himself clarified the discrepancies to his men. But by then, the sad legacy of Haditha had already been inscribed.