I heard a story on NPR this morning about the trial of Staff Sgt. Frank Wuterich–a leader of the Marine squad accused of killing 24 civilians in Haditha a year and a half ago. (NPR also included multiple excerpts from an interview that Wuterich gave to CBS’ Scott Pelly—here‘s the text version of the NPR report). All in all, it was a decent job of telling the story, but there was something missing. The story didn’t include this:

Since May, charges against two infantrymen and a Marine officer have been dismissed, and dismissal has been recommended for murder charges against a third infantryman. Prosecutors were not able to prove even that the killings violated the American military code of justice.

That from the NY Times (h/t). It makes it a little more clear that maybe, just maybe, the war crimes charges were a little tenuous to begin with. Now, there were certainly some problems. One officer has been convicted because his actions delayed the investigation months after the incident. But while there appears to have been negligence up the chain-of-command, the Uniform Code of Military Justice (USCMJ) is a different ruleset than U.S. criminal law and gives fighting men leeway in these matters.

Experts on military law said the difficulty in prosecuting the marines for murder is understandable, given that action taken in combat is often given immunity under the Uniform Code of Military Justice.
“One could view this as a case crumbling around the prosecutor’s feet, or one could see this as the unique U.C.M.J. system of justice in operation,” said Gary D. Solis, a former Marine judge who teaches the laws of war at Georgetown University Law Center and at West Point.
Prosecuting the Haditha case was especially difficult because the killings were not thoroughly investigated when they first occurred. Months later, when the details came to light, there were no bodies to examine, no Iraqi witnesses to testify, no damning forensic evidence.
On the other hand, some scholars said the spate of dismissals has left them wondering what to think of the young enlisted marines who, illegally or not, clearly killed unarmed people in a combat zone.
“It certainly erodes that sense that what they did was wrong,” Elizabeth L. Hillman, a legal historian who teaches military law at Rutgers University School of Law at Camden, said of the outcomes so far. “When the story broke, it seemed like we understood what happened; there didn’t seem to be much doubt. But we didn’t know.”
Walter B. Huffman, a former Army judge advocate general, said it was not uncommon in military criminal proceedings to see charges against troops involved in a single episode to fall away under closer examination of evidence, winnowing culpability to just one or two defendants.

In the first place, this is a story about predispositions. Some of us are predisposed to give the military the benefit of the doubt in these matters, other are not. What is egregious, though, is when the individuals are exonerated and are not still given the benefit of the doubt. Witness the disappointment in the Times piece.

If the legal problems that have thwarted the prosecutors in other cases are repeated this time, there is a possibility that no marine will be convicted for what happened in Haditha….
Regardless of what happened to charges against the other defendants, there is still great public pressure on the Marine Corps to investigate and punish any wrongdoing in a case in which so many civilians died.

It seems that what the Times really wants is to criminalize war and those who prosecuted it: from the Commander-in-chief on down. Surprised?