Posted on 02/01/2007 7:10:42 PM PST by RedRover
From: David Sheldon
To: Investigating Officer
Subj: Article 32 hearing ICO United States v. Phan
Date: 28 January 2007
Sir,
1. On behalf of my client, I wanted to state for the record the following:
(a) The defense believes a classification review should be undertaken without delay. We ask you to make this recommendation;
(b) Your recommendation that an investigation into the testimony and conduct of both certain NCIS agents and the three Marines at issue should be initiated and is appropriate. These matters are important as you well recognized;
(c) Your recommendation regarding counsel should include the trial team as well. It became abundantly clear that Major Plowman and Captain Gannon became witnesses when as Major Plowman said "I believe this witness (LCPL Kraus) is lying regarding whether or not he met with me in August of last year." I should note that Lance Corporal Kraus testified that he did not remember meeting with Major Plowman. Additionally, I have concerns about the testimony of two junior, enlisted Marines who testified that two members of the prosecution team, a Captain and a Staff Sergeant Logan, may have sought to improperly threaten them and/or improperly influence their testimony. The defense team has acted in a manner consistent with their ethical obligations. Your comments that these Marines' affidavits were "colored by a third party" are without any basis in fact. As you well know, all three Marines testified under oath repeatedly that their affidavits were voluntary and accurate;
(d) Finally, I am deeply concerned about your repeated statements regarding the credibility of witnesses and the validity of the charges on and off the record prior to hearing all of the evidence or commencing your deliberation. Your comments that you will use your personal experiences and beliefs with respect to operations in Iraq as a bellwether for what is and isn't legal and what is or isn't credible in the present case, and your representation that you intend to use your personal past experiences and relationships with NCIS and its agents, are equally disturbing. In my 16 years of practice, I have never seen an investigating officer or military judge make such patently biased and inappropriate comments. Nor have I ever seen an investigating officer or military judge ever prevent a counsel from making a record as you did just prior to the close of the hearing. Your actions clearly violated L T Phan' s right to a fair and impartial hearing and were an attempt by you to play to the media in order to put the Marine Corps and NCIS in the best possible light. Moreover, your obstreperous, condescending (to include your loud exaggerated sighs and eye rolling) behavior and repeated derogatory comments to Lt. Col. Cord during his closing comments were offensive and without precedence. In sum, you paid lip service to L T Phan's right to a full, fair and impartial Article 32 hearing.
I insist that you make this memorandum an exhibit and attach it to the record.
Copy to:
File
Trial Counsel
Convening Authority
Jude,
What do you think of part (d) of that memo specifically?
Is this standard practice or was Pigott's behavior inappropriate.
If it was; do they redo the Art 32 or doesn't matter?
bttt
Is an accusation enough to strip a serviceman of due process? How about using a hearing to decide if a serviceman, in fact, broke the UCMJ?
I hope you'd agree that if a decision is made prior to a fair hearing, then there is no military justice.
That is precisely what is so troubling. The basis for justice is truth, not a headlong rush to convict.
And you, too, RR.
The buck stops with the CIC.
Absolutely. I've seen no evidence to that effect, however - and the self-serving, vague memo from defense counsel does not change that.
Of course, I may be jaded from reading too many b/s habeas corpus petitions.
The basis for justice is truth, not a headlong rush to convict.<<<
For some reason there is a rush, it can only be politicians, out to make a point, against the Military.
My opinion.
2d Lt Nathan P. Phan, USMC, has been charged with one count of false official statement and three counts of aggravated assault in connection with alleged crimes that took place in Hamandiyah, Iraq by the 3rd Battalion, 5th Marines. The prosecution of Lt Phan is the product of unethical, strong-arm tactics by agents of the Naval Criminal Investigative Service, shocking instances of prosecutorial misconduct, and the intentional destruction of important evidence by government agents. It is an effort by the Marine Corps to use Lt Phan as a scapegoat to both justify its own failed policies and lack of battlefield awareness, and to cleanse itself of its own institutional responsibility and accountability by saying that an officer is being held accountable. The sad and incontrovertible fact is that the charges against Lt. Phan are entirely baseless and the government’s prosecution of him is an ethical abomination and an affront to any concept of justice.
Lt Phan, whose family immigrated from Vietnam, and who has served his country honorably both as an enlisted Marine and an officer, arrived in Iraq in January 2006. Rather than perform the traditional infantry mission he and his platoon were prepared and trained for, without notice or any training or guidance, Lt Phan was assigned to conduct Counter Insurgency Operations in Anbar province, the hotbed of insurgency operations in Iraq. Among other things, he was tasked with detaining possible terrorists and insurgents and stopping their use of deadly improvised explosive devices “at all costs”. By all accounts from within his unit and up his chain of command, Lt Phan was extremely successful – it is beyond dispute that his platoon gathered more useful intelligence, detained more suspected terrorists, and discovered more weapons caches than any other platoon in his company. For example, due to Lt. Phan’s tireless efforts, a deadly sniper cell responsible for several Marine deaths was eliminated, and a vicious kidnapping cell that had long plagued the area was finally destroyed.
Rather than reward Lt. Phan for his actions, the government - based upon suspect evidence, coerced statements and bizarre theories - instead has smeared this Marine’s career and reputation and now seeks to imprison him for decades. That the government has continued upon this sickening course with the full knowledge that its evidence is ludicrously thin and ethically compromised is a sorry testament to the state of justice in the Marine Corps. For example:
Despite charging Lt. Phan with making a false official statement, the government has no evidence that Lt. Phan ever made the statement alleged, nor that any person ever heard him make such a statement. More troubling is the fact that documents – which have been in the possession of NCIS and prosecutors for more than 6 months – clearly show exactly the opposite: that Lt. Phan never made any false official statements to anyone at any time.
The government has also charged Lt. Phan with using “force likely to produce death or serious injury” on three Iraqi men his platoon had detained. However, what the government has studiously avoided disclosing is the fact that the men were documented, active terrorists and listed as such by the U.S. Marine Corps – one was a documented triggerman on an IED that killed and wounded several service members. What the government has also cravenly avoided disclosing is that Lt. Phan was instructed by his superiors to “aggressively” gather intelligence from these individuals and put a stop to their activities “at all costs.” Further, the government has also disgracefully failed to explain (to either the public or Congress) that the alleged “aggravated assaults” consisted of nothing more than applying a non-lethal, non-dangerous Marine Corps approved restraint technique called a “blood choke.” While this term may sound scary, any Marine who has had it done to him/her (and most do have it done to them during mandatory training) would say that it does not injure, does not kill and is specifically taught as a restraint – not an offensive, killing move. Moreover, Lt. Phan selected a trained and approved USMC martial arts instructor to apply the move in order to doubly ensure that the move was correctly applied and that no harm would result. In fact, even the government admits that no harm came to the three terrorists. What it is reluctant to admit however is the documented fact that, as result of Lt. Phan’s decision to use this innocuous technique, all three terrorists immediately gave valuable information that directly lead to the capture of other terrorists and the thwarting of plans to kill Americans in Iraq.
In addition, the government has also alleged that Lt Phan assaulted a terrorist with a “means likely to produce death or serious bodily harm” by pointing an unloaded pistol at him. Apart from the sheer absurdity of claiming an unloaded pistol is capable of killing or seriously injuring anyone, the government fails to mention that Lt. Phan – and nearly every other Marine sent to Iraq – is instructed by the Marine Corps that Iraqi’s have a deep fear of pistols and that instilling fear in a suspect during an interrogation is a valid and often necessary technique. The rank hypocrisy inherent in this particular charge cannot be stressed enough.
Finally, the government only recently had the decency to disclose that one of the alleged terrorist “victims”– Mr. Hassan Hamza Fayall – was himself murdered by his fellow terrorists several months ago. Of course, the government has offered no explanation as to why it failed to protect this alleged “victim” or secure him in a safe area as a material witness. The fact that Lt. Phan cannot possibly receive a fair trial without the appearance and testimony of this “victim” is apparently of little concern to prosecutors who still press forward with this charge.
One of the other alleged “victims”, Mr. Ali Haraj Rbash, has, according to the government, steadfastly refused to cooperate with or give statements to investigators and refuses to testify. The last alleged “victim”, Mr. Khalid Hamad Daham, according to the unsubstantiated representations of the government, would like to testify were it not for the fact that he cannot obtain clearance to enter this country.
In addition to the hypocrisy and inconsistency regarding the alleged “victims,” the government has also dallied in gross and wanton destruction of important evidence in order to prevent its use by Lt. Phan in his effort to exonerate himself. For example, just before he was sent back to Camp Pendleton from Iraq in order to face the subject charges, a representative of Lt. Phan’s command seized from him a flash drive (a.k.a. thumb drive). This device, sanctioned if not provided by his command, was used by Lt. Phan to store important electronic information for use in his mission. Among other things, orders and messages from his commanders were transmitted to him via this device. It also contained many other notes, charts and memoranda created by Lt. Phan based on information transmitted to him by his commanders and local sources. Instead of preserving this invaluable piece of evidence, his command representative instead destroyed it – without verifying its contents or making a copy. Worse, this took place in the presence of the Battalion Staff Judge Advocate (an attorney for the government) who not only failed to prevent the destruction of the thumb drive, but actually approved it! Of course, the government now is expected to say that since Lt. Phan cannot prove what was on the thumb drive when it was illegally seized and destroyed, he is just out of luck. Since when is “luck” a valid factor in a court of law? Where is the “luck” clause of the U.S. Constitution? It is a sad day for justice and a terrible day for Marines everywhere when government agents and attorneys can willfully destroy important evidence that would exonerate Lt. Phan – then blithely shrug their shoulders.
To compound the matters highlighted above, the government has also engaged in actively withholding important, relevant information from Lt. Phan’s defense team and has thus far refused to seek out important information in the possession of other U.S. Government agencies requested by the defense. More seriously, for months prosecutors have been in possession of information that both tends to exonerate Lt. Phan as to some allegations and cast serious doubt upon the truthfulness and ethics of NCIS agents investigating the case. For example, at least three witnesses to relevant events told NCIS agents they saw no misconduct of any kind by Lt. Phan. Instead of accurately reporting these facts, NCIS agents coerced and threatened these witnesses and ordered them to sign statements to the contrary. These witnesses later informed prosecutors of these events and further told them what they had really observed and experienced. Of course, not only did these prosecutors not disclose these important facts to the defense (as they are strictly required to do), they then loudly browbeat these witnesses in an effort to convince them to stick with the NCIS-fabricated version of events. And, naturally, the government has initiated no investigations into the unethical and possibly illegal misconduct by these NCIS agents, nor has it done the right thing and taken steps to ensure that this fraudulent evidence is not used against Lt. Phan (or others).
That the government of the United States, and the U.S. Marine Corps, would sanction such appalling misconduct by its investigators and prosecutors and attempt to go forward and ruin Lt. Phan with such discredited and fraudulent evidence is nothing less than shocking.
Whatever wrong actions other members of the 3rd Battalion, 5th Marines may have committed at Hamandiyah in April of 2006, Lt Phan is not responsible and the government has no credible evidence to the contrary. Sadly, rather than admit that, the Marine Corps is attempting to use this young Officer as a sacrificial lamb and a salve to the egos of its commanders and prosecutors. It is, in a word, unconscionable and it should not be countenanced in any way, shape, or form by the government and people of this nation.
"Whatever wrong actions other members of the 3rd Battalion, 5th Marines may have committed at Hamandiyah in April of 2006, Lt Phan is not responsible and the government has no credible evidence to the contrary. Sadly, rather than admit that, the Marine Corps is attempting to use this young Officer as a sacrificial lamb and a salve to the egos of its commanders and prosecutors. It is, in a word, unconscionable and it should not be countenanced in any way, shape, or form by the government and people of this nation."
bttt
Thanks for the ping, onyx. This is a disgrace.
Trying to destroy the Corps from within?
That won't be easy.
Beyond sickening and disgraceful.
Note that two of the co-authors are JAGs for the defense. Here you have JAGs vs the civilian NCIS. Where would you put your trust?
For additional prepared statements by JAGs detailing abuses by NCIS agents, see these two statements following the Petty Officer Daniel King case:
ROBERT A. BAILEY, LIEUTENANT, JUDGE ADVOCATE GENERAL'S CORP.
MATTHEW SIDNEY FREEDUS, LIEUTENANT, JUDGE ADVOCATE GENERAL'S CORP
I am not trying to bait you with all this. I am honestly concerned with due process for our Marines.
ping
Good for Lt. Phan's defense team. They're at least getting their side of the story to the press.
Thanks for posting this, Red.
ping
Thanks....
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