I can't believe I'm writing these words: Marine Sgt. Lawrence Hutchins III is going on trial -- again.
Twice, Hutchins' conviction by a military court martial for unpremeditated murder in Iraq has been overturned due to factors precluding a fair trial. That means that twice, following Hutchins' initial conviction in 2007, he has been released from the brig a free man.
After his conviction was overturned the first time, there were eight months of freedom in 2010. Then, on the day his wife Reyna found out she was pregnant with their second child, Hutchins, a third-generation Marine, returned to prison. Last summer, the military's highest appeals court overturned his conviction a second time. For the past six months, Hutchins has been living with Reyna and their two children, Kylie, 8, and Aidan, 2, while teaching marksmanship at Camp Pendleton. A new baby is on the way. Now, he -- and they -- must prepare for a new trial, his third. Why?
This twisting story with serial breaking points goes back to the night of April 26, 2006, somewhere in the Sunni Triangle west of Baghdad. Remember the Sunni Triangle? This was the pre-"surge" center of insurgent operations against our forces, who were daily coming under attack, usually by roadside bombs, or IEDs. They were also daily encountering the insurgents behind these IED attacks, capturing "high-value targets," and then being ordered to set them free again. Sometimes there was insufficient "evidence" to hold them. Often, there was no jail space. Remember the bad old days of "catch and release"?
Saleh Gowad was one such official "high-value target," the mastermind behind a series of IED attacks decimating U.S. ranks. According to previous court testimony, Gowad had been caught and released three times by that April night in 2006 when Hutchins' eight-man squad was on the hunt for him. The plan to kill him, according to the Los Angeles Times' recent recap of Hutchins' case, was "developed as a warning to other Iraqis not to attack Marines with sniper shots or buried roadside bombs." The squad, later known as the Pendleton 8, kidnapped and killed the wrong Iraqi man, and then faked evidence that he had been caught digging in an IED. Nonetheless, the Times points out, in the months following the incident, "attacks on Marines in the region dropped."
Strange. Or not strange. The identity of the killed Iraqi remains contested, along with a shocking number of other clues to this "crime scene." Or maybe not shocking. This was, of course, a battlefield. And it was a battlefield gone wrong, spinning out of U.S. control due to the fundamentally flawed, ultimately failed Bush counterinsurgency strategy of "nation-building" in Iraq.
Seven of the Pendleton 8 were out of prison by 2007, with none of them serving longer than 18 months. After a botched defense, squad-leader Hutchins, however, drew a 15-year-sentence, later commuted to 11 years. Babu Kaza, Hutchins' appellate attorney, has long contended that had Hutchins received a fair trial to begin with, he would never have been convicted of unpremeditated murder, or received more than a time-served sentence. By now, Hutchins has served more than six years behind bars. Former Marines such as author Bing West have urged the military to drop the case and let Hutchins go free.
But no. Six years is not enough for the Marine brass. In their decision to re-try Hutchins, they seem less to be seeking justice than re-enacting a version of catch-and-release; or, in this case, release-and-catch. Release Hutchins, then catch him again. I call that cruel and unusual punishment.
Why is the Marine Corps doing this? And why now? A Marine spokesman speaks of the seriousness of the charges against Hutchins, but sounds unconvincing. Meanwhile, hanging over this case is the specter of undue command influence that goes back to public comments Navy Secretary Ray Mabus made about Hutchins in 2009. The Navy Secretary, of course, oversees the Marines. For related reasons, Hutchins recently requested a defense team and military judge from outside the Marine Corps.
The majority opinion that overturned Hutchins' conviction last summer didn't address the issue of undue command influence, but one of the appellate judges ruling in Hutchins' favor highlighted Mabus' comments as "disturbing and inappropriate." The same words might be used to describe this dogged prosecution. It has ground on, even as literally thousands of Iraqi and Afghan detainees, men who killed many Americans, have received clemency, many from U.S. commanders. Why not some clemency for our own -- Hutchins, and the rest of the veteran-prisoners of Iraq and Afghanistan known as the Leavenworth 10?
The question goes unanswered, the silence juxtaposed this week with another round of Taliban releases from Afghanistan jails, and the president's promise to close Guantanamo Bay.
There is even more to the Hutchins case than is widely known. Last year, it came out that not long after Mabus' 2009 comments, Reyna Hutchins received word from the FBI that she was on an al-Qaida hit list. So, too, was Tom Bolinder, a founder of the Military Combat Defense Fund, which has helped defray Hutchins' legal expenses. The list was drawn up by Paul Rockwood Jr., an American convert to Islam and follower of the late jihad-imam Anwar al-Awlaki. Rockwood would be featured in al-Qaida's Inspire magazine. Fearful months passed before Rockwood's capture and conviction on terrorism-related charges in 2010. He's serving an eight-year sentence.
Now, the Marines have Sgt. Hutchins in their sights instead. There's something wrong with this picture.