Diana West

The two cases are quite different, but they share more than miscarriages of justice. Reading back before the judicial nightmares began is to follow two warriors contending with a basic COIN flaw: the notorious practice known as catch-and-release, the opaque, bureaucratic process by which U.S. forces risked their lives to "arrest" insurgents on the back-alley battlefield only to see them released to kill again for "lack of evidence." In both Behenna's and Hutchins' cases (and others), catch-and-release was the ultimate manifestation of chaotic command and no control, and served as a common trigger of events. Behenna himself had to drive home the very insurgent known to be responsible for the IED (crude, handmade bomb) that recently killed two of his men. He decided to perform one more interrogation himself during which the insurgent rushed him, at which point Behenna fired. This is the self-defense scenario supported by the prosecution's own forensics expert. It was suppressed at Behenna's trial and ignored on appeal.

Hutchins' case is more complex, involving an eight-man plot to "snatch" and kill a "prince" of the insurgency, someone responsible for everything from IEDs to recruiting suicide bombers. Again, it was catch-and-release, and not for the first time, that lit the fuse for this Marine squad. They caught the terrorist and then, on release, had to drive him home. They later decided to fake an incident in which the "prince's" killing would be ROE-lawful. While Hutchins waited in ambush, the wrong man was seized, they all shot at him and then covered up the incident. No Marine was confined for more than 525 days except Hutchins (11 years).

Hutchins also drew a rebuke from Navy Secretary Ray Mabus, who, while Hutchins appealed and sought clemency, slandered him as a premeditated and indiscriminate murderer. Hutchins lawyer, Maj. Babu Kaza, points out that Hutchins was found guilty of neither allegation and that Mabus' unprecedented public comments constitute "unlawful command influence" on the workings of justice.

At least that's what the military calls these nightmares. Do you?


Diana West

Diana West is the author of American Betrayal: The Secret Assault on Our Nation's Character (St. Martin's Press, 2013), and The Death of the Grown-Up: How America's Arrested Development Is Bringing Down Western Civilization (St. Martin's Press, 2007).