Monday, February 25, 2008

Pendleton 8 Part II

More on the story from Tim Harrington:

Open letter to Cong Delahunt (D) Mass

Tim Harrington, Sgt HMM-165, has been personally involved with the families of the accused Marines of the Hamdania Case, (PENDLETON 8 ) and Haditha.
During this time, Tim has been in constant contact with his state rep, William Delahunt, D-MA 10th district. Mr Delahunt is the representative of Sgt Hutchins who was found guilty in his court martial for the charge of murdering a civilian in Iraq.
This issue is important because it has shown a level of corruption and perjury in the NCIS system and specifically 2 individuals that are common to the Hamadania and Haditha cases. It also shows a pattern of the government using evidence to prosecute but denying access to that evidence for the defense. ( Un-Manned aerial footage taken by drones over the combat area )
As we sit here, a documentary is being made to expose this. Also, some high ranking individuals involved with the JAG corp are aware of these incidents and are offering to testify before congress. These officers are above the O-5 grade.
Below is Tim’s open letter to Rep Delahunt. Fell free to copy and paste this letter. Please include my notes so people can understand why it was written.

Congressman William Delahunt
2454 Rayburn House Office Building
Washington, D.C. 20515-2110

Congressman Delahunt:

I have been in contact with you through your staff for over fifteen months. I, with other Veterans and retired officers from around the country have asked for your intervention on behalf of Sgt. Laurence Hutchins III, now in a prison camp within the gates of Marine Corps base Camp Pendleton.

I have had several conversations with your staff attorney Mr. Kivlan, and also on two separate occasions with Mr. Mark Forrest, who we are led to believe is your chief of staff. In my conversations with Mr. Kivlan, he has acknowledged the facts of the case as I have expressed to him against this fine young Marine who is from our 10th district and your home in the Cape and Islands. He has also acknowledged the facts that surround this case and sat for two weeks in the courts-martial proceedings in Camp Pendleton with our understanding he directly represented your seat in the house.

Sir, knowing you are on the House committee for “Foreign Affairs” and Chairman on International Organizations, “Human Rights” and “Oversight” and also the House “Judiciary committee”, we are confused as to your lack of action with the knowledge of the criminal activity that now has one of your Marines in uniform imprisoned at Camp Pendleton.

Mr. Kivlan sat in the court room during the trial of Sgt Hutchins with full knowledge of the outcome of Trent Thomas’s trial and the ongoing trial of Marshal Maginicalda. Because of the fact that all material evidence that was said to be gathered by the government and the special agents involved with the investigations were thrown out as inadmissible, and with your representative knowing that these evidences were thrown out as inadmissible; to include the identification of the body, DNA evidence, photos and testimony of alleged family members and or Iraqi citizens who now have no evidence relating them to the deceased Iraqi and who also cannot be located for cross examination; it leaves us to believe that for someone in your position to show a complete lack of a diligent response to this situation, you therefore show that the Constitution of the United states and how you claim to directly represent the people of your district and also nationally in your several positions to include your seat in the house, in actuality stands for nothing.

We also have made you and your representative at the trial aware of the amount of exculpatory evidence that could have been used in the defense of this young Marine that was withheld; to include formal copies of orders that were delivered that night and available video footage taken by un-manned aircraft that were present at the scene. The result of withholding evidence from the court-martial of Sgt. Hutchins is inexcusable in that it denied him the ability to clear his name. To have a prosecution witness, an Intelligence Officer, state it would be a National Security issue to release video footage from the un-manned vehicle to assist in the defense of Sgt. Hutchins, but that the video footage from the same aircraft and mission was being used as evidence in the prosecution of the case is criminal, but you sat quiet in complicity.

Through out my interaction with your direct representatives over the last fifteen months, the only consistent course of action spoken by these direct representatives was to focus on the sentencing phase. Why? This was the case from the very beginning, and you, yourself, talked to the members of Kilo 3/5 ( Pendleton 8) on your trip to California and spoke the same words showing only a concern about sentencing and not their defense against the accusation? You told them there might be there only one choice in the matter? You were then told that Sgt. Larry Hutchins would not do this and would go to court-martial because he believes no crime was committed. We also know and understand that you were instrumental in raising money through your web site for this young Sgt. and how your staff attorneys helped with the defense fund that was created to help with legal defense bills. This is all great and honorable, but why not do what your job privileges and job description entitles you to do under the Constitution and expose the criminal actions of NCIS; to include criminal perjury under oath, withholding of evidence, coercion and false official statements in regards to the case and how it was conducted, and then demand the release of intelligence that could and should be used for the defense of these young warriors and not just in their prosecution?

We know some one died that fateful day. We know that this UN-Identified Man was part of an insurgent circle that the Marines were trying to neutralize. We know that orders were given, either written or verbal, we know that the use of a dead check is and remains standard operating procedure, we know through sworn testimony that Sgt. Hutchins did not give orders or orchestrate the taking of this fictitious person, and these facts are your staff attorney’s own words. If this was in a State or Federal court, it would never make it to trial and would be thrown out and/or reinvestigated. This sad tragedy of events can only happen in Military courts, and that is exactly why they are kept there.

The military courts-martial as it is known today is broken. Historical events surrounding its very existence and function have proven this and so have the fights about it since 1918-2001, you can’t re-write history Sir.

No Matter what your view, Sir, on the war, (which is documented), these views have nothing or little to do with the constitutional protections that Sgt Hutchins deserved; you took an oath to uphold your office, and these men and women in uniform have done the same! The difference, as you should remember from your short time in the military is they have sworn to die to declare their oath, what are you willing to do for them?

We have asked for hearings with the evidence of years of criminal actions that have taken place under the UCMJ, command influence, and unlawful prosecutions. When will we get an answer and when will you act on this young Marine’s behalf as his congressional representative?

Please remind Mr. Kennedy we have a copy of his letter to the Hutchins; basically it states he cannot help do to conflict of interest because he sits on the U.S. Judiciary. How is the U. S. Judiciary a conflict of interest to the actions of Military Courts and the UCMJ? The U. S. Judiciary has no oversight of the military, so how can there be any conflict?

Both houses need to do what we as citizens expect, you have a chance to take action with some of the folks we have reached over a period of time to include: Con. Dix (w) Kennedy (m), J. Inslee, Pat Murry, Maria Kantwell, Shadegg, Adam Smith, John Duncan, Slade Gordon, and Sen. McCain just to name a few. We have Sr. JAG’s in uniform who wish to attend and testify at these hearings and about the documentation that you and your staff have had access to. Please respond with your thoughts and answers so the others involved can look forward to help expose and put an end to these problems.

Dwight D. Eisenhower said there is a time when the military turns a blind eye to the constitution and inflicts its self on the citizens of this Great United States. This is under way through the LINX program. If NCIS, CID and the rest of the military investigating organizations are allowed to run over the constitution and inflict itself on the citizenry with no oversight and nothing in place as is now to hold them accountable, we as citizens and those in uniform are in trouble.

In closing, I would like to ask one more question for all concerned. When was there ever a constitutional convention where precedence was set that men and women in uniform lose their basic rights under these important writings, especially concerning a capital murder case or war crimes case?? If you or any one in Washington has the answer, please share that with us.

I tried to explain how it is different law than how civilian law works, but Tim said that was the point. Due to necessity to hold to Military discipline in time of war, the needs to be harsher and more direct make some of these differences necessary, in my opinion, yet Tim has pointed out how these differences are just what hung these guys of the Pendleton 8.

Capt. Greenlaw:

This is a recap of the conversation I had with you two nights ago. As you and I and others are very aware of, there are many discrepancies with NCIS, the investigation in general and how the UCMJ has been applied throughout these hearings and previous hearings and court martials. The only breath of fresh air is the decisions mad by Lt Col. Ware. The history of infighting between the military’s interpretation of LAW and the constitutionally guaranteed rights under the law show great discrepancies between the two. In every case that the military has recently made public with the help of the media, the UCMJ has been documented in its failings. You have JAG’s, who’s only concern is working with each other, whether it is defense or prosecution, to obtain results that have already been pre-determined. These are merely ceremonies put into play for all concerned. This has been documented, reported, and reviewed without consequence or oversight by any authority and is apparently just a tool of the DOD and the politicians within those ranks and some within the ranks of the military.

We can supply many examples of how the system works, whom it preys upon and who is exempt from the reach of this system. Recent events along with years of research show what can only be described as a criminal element with a working above the LAW attitude, specifically those yielding the power of prosecution, judgment, and sentencing in a system that works outside and independently of the Constitution of the United States.

DOD and this system work as independent and separate Government entities within the borders every one has sworn to defend, to include the defense of the constitution of the United States. In the case of Sgt. Hutchins and his squad, the basic rights of the UCMJ and that of their guaranteed rights under the 4th, 5th, and 6th amendments have been crushed with no concern for the accused, to include the rights guaranteed them under the UCMJ. Command influence has to be part of the problem for these procedures happening the way it operates today, while under the laws provided by the UCMJ, it is in fact a crime to do some of the things mentioned here.

Under the UCMJ it is up to the Convening authority to make this decision, but in doing so the UCMJ/MCM states specific reasons for Confinement;

RCM 304 (a)(4) Confinement. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses. See R.C.M. 305.

This refers to the physical confinement of Unit 3/1’s return and treatment from Iraq (Haditha) compared to 3/5’s treatment as being a flight risk, (Hamdania, The Pendleton 8). We know these assumed risks had no valid reason or circumstance to warrant confinement as these Marines experienced. These Marines, (Hamdania, The Pendleton 8), knew what was in store as they were sent home after INTERROGATION by NCIS and knew full well why they were returning, who then upon returning had 24 hours of unsupervised liberty which was uneventful.

RCM 305 (H)(2)(b) states: (B) Requirements for confinement. The commander shall direct the prisoner’s release from pretrial confinement unless the commander believes upon probable cause, that is , up on reasonable grounds, that: (i) An offense triable by a court-martial has been committed; (ii) The prisoner committed it; and (iii) Confinement is necessary because it is foreseeable that: (a) The prisoner will not appear at trial, pretrial hearing, or investigation, or (b) The prisoner will engage in serious criminal misconduct; and (iv) Less severe forms of restraint are inadequate. Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used in this rule, “national security” means the national defense and foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert.

Discussion A person should not be confined as a mere matter of convenience or expedience. Some of the factors which should be considered under this subsection are: (1) The nature and circumstances of the offenses charged or suspected, including extenuating circumstances; (2) The weight of the evidence against the accused; (3) The accused’s ties to the locale, including family, off-duty employment, financial resources, and length of residence;(4) The accused’s character and mental condition;(5) The accused’s service record, including any record of previous misconduct;(6) The accused’s record of appearance at or flight from other pretrial investigations, trials, and similar proceedings; and(7) The likelihood that the accused can and will commit further serious criminal misconduct if allowed to remain at liberty. Although the Military Rules of Evidence are not applicable, the commander should judge the reliability of the information available. Before relying on the reports of others, the commander must have a reasonable belief that the information is believable and has a factual basis. The information may be received orally or in writing. Information need not be received under oath, but an oath may add to its reliability. A commander may examine the prisoner’s personnel records, police records, and may consider the recommendations of others. Less serious forms of restraint must always be considered before pretrial confinement may be approved. Thus the commander should consider whether the prisoner could be safely returned to the prisoner’s unit, at liberty or under restriction, arrest, or conditions on liberty. See R.C.M. 304.

It must be noted that the conditions spoken of in the discussion section above, points 1-7, should have given the commanders of the Pendleton 8 accused no legitimate reason to keep these Marines confined in the manner in which they were held.

RCM 305(d) provides for further interpretation, mainly reasons for incarceration.
1) Flight risk, there was none.
2) Likely to engage in criminal activities or misconduct, like witness intimidation, threatening the safety of others, with no record of that either.

Knowing what we know now regarding evidences brought forth in pre-trial statements, sworn testimony by the defendants and the failure of the prosecution to prove that the deceased was identified correctly and that witness statements were authentic concerning events of the incident, I would like to hear the explanations for RCM 305 (h)(2)(b) where it is stated that, Confinement should not be ordered simply because the charged offense is a serious one. The reason these Marines were SHACKLED, HANDCUFED, and put in solitary was in re-action to the media, politicians and those in congress and DOD who demanded it for foreign policy, These young men paid a price for ABU GRAHIB, Guantanamo Bay and the events of HADITHA, that our press and those who would rather blame and use these young heroes and the military as scapegoats for not having their own backbone. I find this disheartening that our Marine leaders’ CO’s and commanders would allow this to ring true in the Corps.

Further examples of recent criminal acts rest solely on the shoulders of NCIS and the JAG corps, They, as far as NCIS is concerned, committed perjury, lied under oath and created evidence that simply does not exist, Why? There is and has been no oversight, none by the government, none by the congress or the senate and unfortunately none by the only branch of Gov. set in power to do so, the FBI.

NCIS and all the other acronyms of criminal investigative services for other branches of the military have no oversight and have no reason to worry about prosecution, as there is no one to prosecute. You have civilians working within the active military, thus the military cannot prosecute a civilian under the law, as far as the U.S. judiciary, It has no power to oversee or prosecute because they work within the comfort zone of the military. This leaves the barn door wide open for the criminal prosecution of the lower ranking personnel of the military who can and do not act on their own accord, The background and evidence of these Marines and there service speaks for itself. The UCMJ speaks of what is known to be a ”quitter” (appendix) RCM 305(h). This describes these individuals as being a determent or having adverse affects on unit moral and has problems with discipline; this holds no water with any of the accused Marines either 3/1 or 3/5.

More evidence of the violations of these young Marines rights are the facts that stand behind the plea deals that took place. This directly and indirectly reflects on both the defense and prosecution. You have young men who have been promised by their accusers and their interrogators that they will spend the rest of their life in prison if they did not cooperate. They pound on the weakest link and build a case of Marines testifying against themselves and fellow Marines through coerced evidence and guided confessions by both NCIS and prosecution. This started in Iraq. First came the allegations, followed by accusations, and followed by officers protecting their positions and political well being for their careers. It was found through the tainted testimony by NCIS, especially James Connolly, That there was in fact no PHYSICAL evidence, no CHAIN of CUSTODY of evidence acquired, no DNA of the deceased that would be comparable to alleged family members of the alleged Iraqi man, and other evidence the NCIS and its investigators said existed in the Gov. case against these young men.

To use this information and then have it summarily thrown out in the first courts-martial speaks for itself; for the Gov. to continue with these scripted trials is a travesty of justice, for JAG to continue to prosecute is a CRIME. To change the formal charges to read innocent Iraqi man during courts-martial mid stream is not only a crime, it conflicts with the parameters of the UCMJ. The Gov. may make minor changes to the charges and specifications unilaterally BEFORE the arraignment (see RCM 603), Major changes may not be made if the accused objects (see RCM 603(D)). Who was allowed to object and where were the defense JAGS in representing their clients?

Rule 603. Changes to charges and Specifications ( a ) Minor changes defined . Minor changes in charges and specifications are any except those which add a party, offenses, or substantial matter not fairly included in those previously preferred , or which are likely to mislead the accused as to the offenses charged.

Minor changes include those necessary to correct in artfully drafted or redundant specifications; to correct a misnaming of the accused; to allege the proper article; or to correct other slight errors. Minor charges also include those which reduce the seriousness of an offense, as when thXevalXue of an allegedly stolen item in a larceny specification is reduced, or when a desertion specification is amended to allege only unauthorized absence. (b) Minor changes before arraignment. Any person forwarding, acting upon, or prosecuting charges on behalf of the United States except an investigating officer appointed under R.C.M. 405 may make min minor changes to charges or specifications before arraignment.

Charges forwarded or referred for trial should be free from defects of form and substance. Minor errors may be corrected and the charge may be redrafted without being sworn anew by the accuser. Other changes should be signed and sworn to be an accuser. All changes in the charges should be initialed by the person who makes them. A trial counsel acting under this provision ordinarily should consult with the convening authority before making any changes which, even though minor, change the nature or seriousness of the offense. (c) Minor changes after arraignment. After arraignment the military judge may, upon motion, permit minor changes in the charges and specifications at any time before findings are announced if no substantial right of the accused is prejudiced. ( d ) Major changes . Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew. Discussion If there has been a major change or amendment over the accused’s objection to a charge already referred, a new referral is necessary. Similarly, in the case of a general court-martial, a new investigation under R.C.M. 405 will be necessary if the charge as amended or changed was not covered in the prior investigation. If the substance of the charge or specification as amended or changed has not been referred or, in the case of a general court martial, investigated, a new referral and, if appropriate, investigation are necessary. When charges are re-referred, they must be served anew under R.C.M. 602.

How is it that the name AWAD was introduced by NCIS in their reports, and that name supplied while guiding statements from Marines who thought they had followed orders and achieved the objective directed by there OIC, 2nd Lt. Phan? This finding of the Court Martial, that the identity of the deceased alleged Iraqi was no longer known, means that all previous murder charges were void due to sworn statements presented by the prosecution when referenced to a named person. Once the court recognized that they did not know who this person was, all previous references to the alleged Iraqi man’s family witness statements were now invalid for evidence. The changing of the charges in mid trial is a direct violation of the rules for courts martial as shown in the section cited above.

All this is achieved by way of NCIS but does not reduce the culpability of the prosecution by following and prosecuting false information, or for the week at heart, tainted at the very least.

Now lets add “no physical body”:
1. You have no body of any proven identification that is traceable to any known, real person,
2. No DNA collected or compared to alleged family members who came forth during the investigation to prove their family relation and thus, proof of identity of the deceased,
3. No physical evidence connecting the actions of the Marines to the deceased,
4. False testimony,
5. No unbroken chain of custody,
6. No forensic evidence,
7. No ballistic evidence,
8. No taped confession,
9. A sealed autopsy report and exculpatory evidence that will not be declassified in the defense of the accused,
10. A computer “flash drive” destroyed by the Co. Commander with the Co. Jag and no charges of impeding or blocking an on going investigation,

…you can add the rest to that in charges, even the Marines were charged with blocking an investigation and making false official statements, WHO goes after the investigators and what price is paid there?????

The rights I referred to in the previous paragraphs speak for themselves, If they were followed under the constitution of the United States and used in context and applied to these young Marines and Soldiers, none of these courts-martial (ceremony’s) would or could have taken place. The rights referred to in the warning are the Fifth Amendment right against self incrimination and the Supreme Court has ruled on the fact of this and stated, you have the right to counsel during custodial interrogation. This is contained in the Bill of Rights and this is part of the constitution. In the grand hierarchy of laws, the constitution ranks as number one and cannot be over ruled by the UCMJ. Couple this with the Fourth Amendment on search and seizures and the add the Sixth Amendment right to counsel. These are here to be the backbone to every service member’s rights to due process. Now, there are going to be people who say this does not apply; these are service men and women. This is garbage, this is DOD working as a state within a state, Show us folks where there has been a Legal Ruling of Sorts, or any Constitutional Convention that would contradict these basic rights that have been withheld from the very people who protect it. It cannot be done.

Don, I could write for days, I will save it for the documentary that is now under way. With the amount of Gov. documents of past courts-martial and in house memos it will be easy to explain how out of control this system is. They have fought within the system for more than 100 years on the lack of constitutionality of the UCMJ, Articles of war; You have for study; the Ansel Crowder debates, COMA revolt, COX commission as it stood for a 50th report card on the system, We could go on and on, but now being directly involved with these proceedings and with the families and the connections of the internet, it is easier to explain research and get this information out for those to read and look at for themselves.

You will not find it written by Mark Walker, too worried about access to write the truth, same with Watkins of AP, and besides, the agendas conflict with the truth. As far as our great leaders in the house, you know how many I have dealt with; they are all-spineless and lead these families on as if they would do something. They could, expose it, bring it to the floor, they can’t, or they would be exposed. I have had several arguments with one staff attorney for a Congressman, He has admitted to the truth of these words to include the word “attainder”. Lt. Col. Riggs will understand that word, congress does not have that right, but yet, 3/5 is just but one more example, holding a class of young NCO’s to watch the proceedings of the GCM is nothing more than the USMC using these fine young men as a training tool.

You can take all the hearings and courts-martial I have been involved in and all are more of the same, then we can talk about the civilian attorneys, most who have come from the military. They have either left or retired, I do not paint them all with the same brush nor am I a conspiracy theorist, but two and two will always equal four, just no way around it.

The only branch that has grown over the past five years by over 5% is the JAG CORPS, with almost over the last years with a 100% conviction rate, Must be some outstanding folks, corporate America needs to seize this opportunity of the finest military minds. Sorry, just disenfranchised with the flagrant beating of the Jr. Enlisted and Jr. Officers and the cottage industry that has blossomed through out the JAG. NCIS and the rest are no more than a tool for DOD and the house of mirrors called the Sate Department. Either side of the isle you stand they say they are for the troops. They couldn’t care less for these men and women.

Now more than ever, the leadership in the military needs to forget their political agendas and lead, more folks like Gen. Mattis and a good house cleaning would be going on, maybe he is a key. Sempers always Sir. I do not posses the accolades of you or those who serve today, but I earned the right of a Marine and I will not stand behind these men and women if I can’t stand and fight beside them. These courts-martial are void on fact alone and constitutionality.

Tim Harrington: former active and reserve Marine

Time for the truth to come out. The time for justice to prevail is long overdue.