Marine to Run Gauntlet of the ‘Law of War'

Dave Eberhart, NewsMax.com

Sometime between mid-March and late April, 2nd Lt. Ilario Pantano, U.S.M.C., is scheduled to appear before a Uniform Code of Military Justice Article 32 investigating officer at Camp Lejeune, N.C., Maj. Matt Morgan, II Marine Expeditionary Force public affairs officer tells NewsMax. At issue: Are there reasonable grounds to believe Pantano committed a pair of murders on April 15, 2004 while serving as a platoon commander in Iraq?

At the conclusion of the pre-trial investigation, where the respondent is represented by counsel and can cross-examine witnesses and present his own, the investigating officer will prepare a report – including a recommendation for the disposition of the charges – and forward it to the commanding general.

Reasonable enough on its face – the Art. 32 proceeding is compared to the civilian grand jury or preliminary hearing – but there is a growing cadre of critics that wonder why Pantano in doing his duty must now face what they see as an ill-advised game of second-guessing a military leader's actions in the field.

What Facts Are Known

On April 15, 2004, while serving as a platoon commander in Easy Company, 2nd Battalion, 2nd Marine Regiment in Iraq, Pantano was ordered to reconnoiter a reported terrorist hiding spot. He led his "quick-reaction" platoon to the site, a home in the town of Mahmudiyah, south of Baghdad and not far from the bloody town of Fallujah.

Pantano's orders were to raid the house and neutralize the reported nest of insurgents holed up there with their arms cache.

The intelligence turned out to be correct, and Pantano's Marines discovered weapons and bomb-making equipment in the house. As the Marines were securing the building, two Iraqis bolted from the site to a nearby truck, a sport utility vehicle.

The Marines charged after the suspects and brought the vehicle to a halt by shooting the tires out. Pantano ordered the pair out of the truck and, in accordance with standard operating procedures, told the captives to tear the interior of the truck apart to ensure that it was not booby-trapped.

What exactly happened next remains uncertain.

The Marine Corps has not released any official rendition of what it alleges happened. However, Pantano's civilian attorney, Charles Gittins, says that the two Iraqi men began chattering to one another, then the Iraqis made what Pantano determined to be a threatening move. When told to stop in their native language by Pantano, they continued in his direction.

As Pantano described it to the Naval Investigative Service:

"After another time of telling them to be quiet, they quickly pivoted their bodies toward each other. They did this simultaneously, while still speaking in muffled Arabic. I thought that they were attacking me, and I decided to fire my M-16A4 service rifle in self-defense. ..."

After the fact, it is determined that neither suspect was armed nor rigged with explosives.

Gittins advises, however, "After the killing, the number of attacks in that area went down to almost zero."

It was not until months later when Pantano returned to Camp Lejeune that he was informed he was being charged with premeditated murder in the deaths of the two Iraqis – a charge that theoretically could carry the death penalty.

A Dangerous, Dirty Environment

The incident occurred at a time in which casualties to coalition forces increased by 400 percent, to 1,000.

Pantano's platoon was billeted with the 200 members of Easy Company in an abandoned administrative building with 10 rooms. Devoid of any semblance of creature comforts, the Marines slept in their clothes, weapons at the ready. Ready-to-eat meals and drinking water were trucked in daily from the Marines' headquarters at Camp Fallujah, 40 minutes away.

Pantano's world is certainly different now that he is back at Camp Lejeune with his wife and young children, but the atmosphere is still dense with danger as the Marine faces another adversary: the system and the Law of War.

The spokesman for the Marine Corps' 2nd Division, Maj. Matt Morgan, recently remarked:

"Americans have seen what is in the press, and they have a tendency to support the Marines. On the other side of that, completely unconnected, there is something called the Law of War, and it is possible for a Marine to violate that. To say you can't second-guess a Marine – well, every Marine who deploys has the experience that anything they do can be second-guessed."

Rules of Engagement

At the heart of that Law of War is the often nettlesome subject of the Rules of Engagement (ROE). Although these rules get tailor-made for various missions, an example of the rules are these ROE training cards, once issued by judge advocates to a Marine Expeditionary Unit:

"Nothing in these rules limits your Authority and Obligation to take all necessary and appropriate actions to defend yourself and your unit

Right to defend Always return fire with aimed fire. You have the right to use force to repel hostile acts.

Anticipate attack You have the right to use force to respond to clear indications of hostile intent.

Measure your force When time and circumstances permit, use only that force which is necessary and proportional to protect lives and accomplish the mission.

Protect with Deadly force only human life and sensitive mission essential property designated by the commander.

USE OF FORCE Force includes everything from shouting a warning up to the use of deadly force. Use as much force as is necessary to decisively end the situation in your favor. You are authorized to use force against another person or group to protect yourself and others and you may use force to accomplish your mission.

SELF-DEFENSE You will always protect yourself and others against anyone who uses or is clearly about to use force against you. You may initiate or use preemptive force against those who indicate "hostile intent" against you or other friendly forces. "Hostile Intent" is the threat of imminent use of force by an opposing force or terrorist unit against friendly forces.

Always apply the Principles of the Law of War in using force. They are:
1. MARINES FIGHT ONLY ENEMY COMBATANTS.
2. MARINES DO NOT HARM ENEMIES WHO SURRENDER. YOU MUST DISARM THEM AND TURN THEM OVER TO YOUR SUPERIOR.
3. MARINES DO NOT KILL OR TORTURE PRISONERS.
4. MARINES COLLECT AND CARE FOR ALL WOUNDED, WHETHER FRIEND OR FOE.
5. MARINES DO NOT ATTACK MEDICAL PERSONNEL, FACILITIES, OR EQUIPMENT.
6. MARINES DESTROY NO MORE THAN THE MISSION REQUIRES.
7. MARINES TREAT ALL CIVILIANS HUMANELY.
8. MARINES DO NOT STEAL, MARINES RESPECT PRIVATE PROPERTY AND POSSESSIONS.
9. MARINES SHOULD DO THEIR BEST TO PREVENT VIOLATIONS OF THE LAW OF WAR; THEY MUST REPORT ALL VIOLATIONS OF THE LAW OF WAR TO THEIR SUPERIORS."

It is principle No. 9 that may have put Pantano in harm's way.

According to Gittins, the incident would have remained laid to rest but for the complaint by a person he describes as a "disgruntled sergeant," who apparently reported what he interpreted as a violation of the rules.

The Marine sergeant, who accused Pantano of outright executing the two men – but who came forward only weeks later – told investigators that he did not understand why the officer had the Iraqis search the vehicle, because a Navy corpsman already had done a "full search," according to a report in the Washington Post.

"As soon as I turned my back, Lt. Pantano opened [fire on] them with approximately 45 rounds. After the shooting, Lt. Pantano let everyone know on the [radio] that he was the one that shot. ... Me and [the corpsman] were both shocked about what just happened."

Inherent in the rules is the principle that the alleged violation must be investigated.

Whether or not the Corps is simply going by the numbers and is as anxious as Pantano is see the incident closed without further harm to Pantano, at this point, says Gittins, his client "feels betrayed."