Criminal Charges Dropped
against Officer in Hamdania Case
By: MARK WALKER – Staff Writer
Note: See nctimes.com for a full statement from Lt. Phan's attorney.
CAMP PENDLETON – Criminal assault charges against a Marine Corps
officer for his alleged treatment of insurgent detainees in Iraq
have been withdrawn, but he will face administrative punishment for
mishandling interrogations and could be discharged from the service.
The Marine Corps announced Tuesday that the assault charges against
2nd Lt. Nathan Phan were withdrawn last week by order of Lt. Gen. James
Mattis, the convening authority over the case as head of Marine Corps
forces in the Middle East.
"We are certainly happy this case is being resolved," David Sheldon,
Phan's lead attorney, said Tuesday in a telephone interview. "Lt. Phan
is obviously pleased and relieved."
Phan, 24, commanded a platoon from Camp Pendleton's 3rd Battalion,
5th Marine Regiment, in Iraq's village of Hamdania last year. Eight men
under his command were charged in June with the slaying of a retired
policeman in Hamdania in April 2006, a killing that Phan was not accused
of participating in or having any knowledge of before it occurred.
The investigation of the homicide case led to Phan being charged in
August with three counts of assault and filing a false statement. The
charges accused the Sacramento-area native of taking part in the beating of
three insurgent detainees in the weeks before the homicide and misleading
commanders on whether one of the detainees was still in his custody.
Following a five-day hearing at Camp Pendleton in January, Phan
was ordered to court-martial on two of the assault charges that have
now been dismissed.
Sheldon said he believed the Marine Corps dismissed the criminal
complaint because Phan's conduct was intended solely to protect his
troops and extract information from known insurgents.
"I think Gen. Mattis looked at all of the circumstances and evidence
the government could muster and saw that Lt. Phan's conduct never
should have gone to the level of a court-martial," Sheldon said.
Phan wants to stay in the Marine Corps and will resist any effort
to have him dismissed from the service, Sheldon said.
As part of his deal with prosecutors, Phan admitted that he exceeded
"the permissible limits of the official rules of engagement regarding
interrogation of insurgents," Sheldon said in a written statement.
He also acknowledged ordering Marine Sgt. Lawrence Hutchins III, a
defendant in the homicide case, to use a chokehold on a known insurgent
and pointing an unloaded pistol at another detainee.
Phan will be required to testify at upcoming hearings and trials
for three remaining defendants in the homicide case if called. Five
of the eight men charged have reached plea deals and were sentenced
to jail terms ranging from 12 months to eight years.
In addition to the possibility of being dismissed from the Marine Corps,
Phan faces up to 30 days' restriction to quarters and a forfeiture of
one month's pay. He could have been sentenced to 10 years in prison and
a dishonorable discharge if convicted of the criminal assault charges.
During a tumultuous hearing in January, several enlisted Marines
testified that the Naval Criminal Investigative Service fabricated
statements implicating Phan in the assaults.
Sheldon said that he views the withdrawal of the criminal case as
a repudiation of the Naval Criminal Investigative Service. He also
said it was a clear rejection of the determination of the Marine Corps
officer who presided over Phan's initial hearing and then recommended
that he be tried for three counts of assault, the false reporting and
conduct unbecoming an officer.
The hearing officer, Lt. Col. William Pigott of Yuma, Ariz.,
will be back at Pendleton next week to preside over a hearing for a
Marine officer charged with wrongdoing arising from the slaying of
two dozen Iraqi civilians in Haditha in 2005, an incident unrelated
to the Hamdania homicide and assault cases.
That case involves another group of Pendleton Marines, and Pigott
will conduct what is known as an Article 32 hearing for Capt. Randy
Stone, a battalion legal officer accused of dereliction of duty in
how he handled the initial reports of those deaths.
– Contact staff writer Mark Walker at (760) 740-3529 or mlwalker@nctimes.com.
