In The Dark - Episode 8: On Trial

Episode Date: September 10, 2024

The case against the squad leader, Frank Wuterich, finally goes to trial. To find online-only features, visit newyorker.com/season3. And to get episodes early and ad-free, visit newyorker.com/dark. The audio of Frank Wuterich in this episode comes from the podcast “Murder in House Two,” by Michael Epstein. Learn about your ad choices: dovetail.prx.org/ad-choices

Previously on In the Dark. Based on the findings of the investigations, various charges have been preferred against four Marines relating to the deaths of the Iraqi civilians on 19 November 2005. These charges include murder, dereliction of duty. We've read some of your statements to investigators, and it sounds like you really regret the way things turned out that day. Who wouldn't?

We got the letter and looked at each other and said, I said, holy shit, this is amazing. What was Wuderich like? Like he was quiet, but a good dude. We were in the direction, and we first saw Frank. Then we met Frank. Like he was quiet, but a good dude. So the first one that they saw was Frank. And he can remember that there was blood on Frank's uniform. The charges against the first Marine for what happened that day in Haditha had been dropped. Justin Sherritt was a free man.

But there were three other Marines who also faced charges of murder. There was the squad leader, Frank Wuderich, charged with the murder of the men by the white car and the murder of women and children inside the houses. There was Sonic Delacruz, also charged with murdering the men by the white car. And there was Stephen Tatum, who according to NCIS records, had confessed to shooting women and children knowing that they were women and children. Tatum was initially charged with two counts of murder for killing five-year-old Zainab and her sister, 15-year-old Noor, in the back bedroom of Safa's house, and four counts of negligent homicide for killings in the house nearby, including the killing of the mother, Asma, and her four-year-old son, Abdullah, who were found dead kneeling together in the corner of their living room.

A whole series of charges against these Marines. The possibility of decades, maybe even entire lifetimes, in prison. But then, something surprising happened. One by one, the cases against the Marines started to be dropped. The charges against Sonic Delacruz for the killings by the white car dropped. The charges against Stephen Tatum for killing two men, a woman, and three children dropped. These Marines would face no punishment for the killings. Just like Sherritt, Delacruz and Tatum would walk free.

What appears to have happened was that military prosecutors wanted to turn these defendants, these men accused of murder, into witnesses. They wanted them to testify against their squad leader, Frank Wuderich. And so it would be Wuderich and Wuderich alone who would stand trial for what happened that day in Haditha. This is Season 3 of In the Dark, an investigative podcast from The New Yorker. This season is about the killing of 24 men, women, and children

by U.S. Marines in Haditha, Iraq. It's a story not just about the killings themselves, but also about the failure of the U.S. military to bring the men responsible for them to justice. Episode 8, On Trial. Test, test, test. Okay. The military prosecutors who brought the case against Frank Wuderich to trial refused my requests for interviews.

But one of Wuderich's own defense attorneys did agree to talk. Hello. So nice to meet you. Madeline. Nice to meet you. I'm Samara. Hi. Very nice to meet you.

Today, Hatham Faraj is a personal injury attorney in Los Angeles. But back in 2007, he was a Marine Corps defense attorney, basically a public defender for the military. His job was to defend service members who were accused of violating military law. And I was assigned to represent Woodridge. So you didn't choose this case. This case kind of came to you.

In fact, I didn't want these cases. I was morally offended by the alleged conduct, but doing what we do, you give the people assigned to you the best defense possible. Wuderich, by that point, had returned from Haditha. He wasn't being held in the brig. He was still in the Marines, living in California, awaiting trial. So what was Wuderich like when you first met him? I mean, what were your impressions of him?

He had a flat affect, not very talkative but it didn't surprise me he was a marine corps sergeant you know and i'd been a marine corps sergeant and i i was in the same unit i was in the infantry and so i i didn't expect anything different at the time and like flat affect like how so uh you know not very emotional uh not very talkative and i will say i wasn't very connected to him emotionally i mean it was it's probably one of You know, not very emotional, not very talkative. And I will say I wasn't very connected to him emotionally. I mean, it was it's probably one of the few cases where I didn't develop a connection with a client. Did he seem worried that, I mean, he was facing life in prison?

No. Wuderich was in serious trouble. His squad mates had implicated him in several killings. Unlike all the other shooters, Wuderich had refused to talk to NCIS, but he had given a statement in the first investigation, the one that was more friendly. Wuderich had admitted to that investigator that he'd shot at the men by the white car. Wuderich had also told that investigator that as he headed toward the first house with members of his squad, he told his men to shoot first, ask questions later. That kind of order seemed to be saying,

ignore the rules of engagement. No need to identify who you're shooting. Just shoot. Wuderich was facing murder charges related to the killing of 18 people, including the five men by the white car, six people inside Abdulrahman's house, six people inside the back bedroom of Safa's house, and, in the final house, one of the brothers, Marwan.

Combined, the charges carried a possible prison sentence of more than a hundred years. Faraj tried to talk to Wuderich to get his side of the story, his version of what happened that day, what went on inside those houses. But Wuderich didn't give his lawyer much to work with. He had no memory of anybody shooting. He had nobody, he didn't know who was where. He had no memory. And I'm sure some of it was deliberate. He could not account for like, here I was here. Like he couldn't walk you through the houses. No, no. To Farage, a Marine who'd also

been deployed overseas, the idea that you would be in a situation like this and literally have no memory of it, he just didn't buy it. I found it to be unbelievable that you don't remember where you were, what you did, and who did what. Farage wondered whether Wuderich was claiming memory loss as a way to protect his squad mates. He said he tried so many times to get Wuderich was claiming memory loss as a way to protect his squadmates. He said he tried so many times to get Wuderich to talk about that day. I told him, you know, nobody gives a shit about you except the people in this room. You're going down, you're going to jail, and you better start telling us the truth. Fraj would point out to Wuderich that the prosecution was likely going to call Wuderich's fellow Marines into the courtroom to testify against him. All those guys, Tatum and the others, who'd gotten immunity deals,

and they were presumably going to implicate him in a war crime. Frage said he told Wuderich, Tatum doesn't give a shit about you. Look at what he's going to say about you, and you better come clean. And that conversation did happen many times. And what was the result of it? Wuderich would? What Richard said, you know, he didn't remember. Frazier tried all the usual approaches to get someone to talk, and none of them had worked. And so he decided to try something less usual. Psychodramatic recreation of the incident. Psychodramatic recreation. Okay. Psychodrama. The technique is called discovering the story. It's a technique where you take a person, you engage maybe the olfactory senses, visual, to try and get him to remember something that he may have forgotten.

What Farage was describing is a technique developed by a psychiatrist more than 100 years ago that later found an unexpected new audience, defense attorneys looking to connect with their recalcitrant clients. It has its own lingo. There's something called chairbacks. You take a chair, like I can take a chair behind you and become your sort of subconscious and begin to talk about what you might be thinking, and then you endorse the things that are right and reject the things that aren't right

to help you kind of connect with what emotion you might be in at this moment. There are role plays and role reversals. This is all that stuff that's like, where someone's playing the mom and someone's playing the dad, and everybody's crying. Yeah, exactly. And so Faraj decided he would reenact the Haditha killings with his client

in the apartment of another lawyer on the team, Neil Puckett. He was focused on one killing site in particular, Safa's house, the house where Safa's siblings were killed on the bed with their mom. This is the house where Tatum had said he saw Wuderich shooting in the back bedroom, so he joined in. But Wuderich himself had denied shooting inside the house where Tatum had said he saw Wuderich shooting in the back bedroom, so he joined in. But Wuderich himself had denied shooting inside the house. So we set the scene for the house. We, you know, you set up furniture the best way you can based on what you understand, and you have them go through it. Farage and I listened to a recording of the psychodrama

reenactment. What you're about to hear is the voice of Wuderich, as he's guided by Farage through the killings. They start at the front door. Okay, so Mendoza's on a knee. He fires a round. Okay, I go around in front. And when I got to the door, I remember the door being open. I remember seeing someone, an Iraqi, on the ground. During this psychodrama, Wuderich offered a new detail. He said he actually did fire his gun inside Safa's house, apparently in the hallway. I see a person black to the left.

I fire one round initially. It hits the wall, and the other person, like, runs back, disappears into the house. But Wuderich still maintained he hadn't killed anybody there. Instead, he offered Farage a play-by-play that laid the blame on other Marines. When it came to what happened in the back bedroom, where Safa's siblings were killed on a bed with their mom, Wuderich blamed a junior member of the squad, someone no one else recalled ever shooting in that back bedroom.

I started hearing gunfire coming from the bedroom at the end. But I didn't see if there was... You didn't go in? No, I see him come out in there firing. Fraj listened to all this, but he told me he didn't actually know whether to believe any of it. I don't even know if he made it up just to satisfy my demand for information.

I don't know that what he told me was true or just wanted me to lay off him. I didn't know what to believe with Woodridge. That's an interesting statement coming from his lawyer. Look, I don't think anyone will say that Frank was telling the truth all the time, or most of the time. There does seem to be some general, like, a curious lack of clarity by Woodridge about what the hell is going on.

I think he's lying. I think he's lying to protect the Marines or the squad. Maybe he's lying to protect himself. I don't know. How much of the full story do you think you got from Wuderich? Nothing. Faraj's relationship with Wuderich was complicated, and Faraj was surprisingly candid about all this.

He told me it was clear to him that what happened that day in Haditha was a war crime. These are babies. They didn't kill some nefarious, dangerous-looking, you know, men. These were babies. They're babies like my children, okay? And they were afraid that day, and they cower on the bed, terrified. And then some Marines walk in and start shooting them systematically. And he thought it was clear that Wuderich was guilty of some things,

like being a terrible leader and violating the rules of engagement. But Farage questioned whether Wuderich was as responsible for the actual shootings as the government was claiming. Farage thought that other Marines were more to blame, and that some of those Marines had lied about Woodridge's involvement as a way to get out of getting punished for their own crimes. Meanwhile, the prosecutors were also preparing for trial. They had all the evidence from the Iraqi eyewitnesses,

from Safa and Abdulrahman and his sister Iman and the others. In order to use their accounts at trial, the prosecution would either need to have these witnesses come to the U.S. and testify in person, or the prosecutors would have to travel to Iraq to take their depositions, their sworn testimony, on video, with the defense there to cross-examine, and then the prosecutors could play those video depositions for the jurors. The remaining family members of the children who survived the killings were reluctant to let them travel to the U.S., so the prosecutors settled on depositions instead and went to Iraq to take them in 2008, a little over two years after the killings. The transcripts of these depositions are among the most painful I've read.

Safa was 14 when she gave her testimony, Abdulrahman was just 9, and his sister Iman was 11. Here's how the prosecutor opened the questioning of 9-year-old Abdulrahman. Do you live with your mom and dad? No, Abdulrahman replied. And why not, the prosecutor asked. They're dead, he said. All three children were asked to go through the killings step by step in detail. The prosecutor had Iman mark on a diagram where her mother, brother, and other family members were in the living room when they were killed. The prosecutor also showed Iman and Safa photos of their dead parents and other family members, presumably the same photos we'd received. He introduced the photos to Safa by saying, I need to show you some photos, okay? And the photos

are gruesome, okay? They are, what's another word for gruesome? Another attorney jumped in. What's another word for gruesome? Another attorney jumped in. Unpleasant. The prosecutor agreed. Unpleasant. Bad. Then the display of photos began.

One by one, Safa was shown the photos of her dead family members. Safa, do you recognize the contents of that photo? The prosecutor asked. Yes, Safa said. Can you tell us what that photo shows? That's my mom, she said. All of this was excruciating, but it was for a greater purpose. Making sure that these valuable eyewitness testimonies could be heard by a jury to get justice. The surviving family members were counting on the American prosecutors to deliver a conviction. One man, Hamid Hassan, whose son was shot to death next to the white car,

gave a statement to the U.S. government before the trial. He said, I would like to thank the court back in the United States for being conscientious to try these Marines and that you have charged them with these murders. I would like to thank them from here, from the bottom of my heart, and I appreciate everything you are doing in pursuing this case further. After the break, the surviving family members get their last chance for justice

as a case against Frank Wuderich goes to trial. Hey, it's Madeline. If you're a fan of In the Dark, and you love long-form storytelling, and you've listened to all the serialized investigative podcasts, and you've already watched everything good on Netflix, there is a wealth of stories you're going to love waiting for you at The New Yorker. Like this story, published just this year by Patrick Radden Keefe about a teen who got mixed up in the London underworld and then mysteriously fell into the Thames. In the four years since Zach's death, the family has had to confront the extent to which the boy they thought they knew had been living a double existence.

None of the Brettlers had ever imagined that Zach might be moving about London pretending to be someone else altogether. This season of In the Dark took us four years to report. You're hearing it now because The New Yorker believes in what we do. So go to newyorker.com slash dark and become a subscriber today. That's newyorker.com slash dark.

It took a long time for the case against Frank Wuderich to get to trial. It was more than six years after the killings, and by that time, many people in the U.S. had moved on from really thinking about Iraq. The war was over. Obama was president. The Haditha case was no longer big news. The charges against Wuderich had been reduced over the years, from the original charges of murder to manslaughter. Manslaughter for killing one or more of the men by the white car, and for killing the people inside the back bedroom of Safa's house. The charge for killing the brother, Marwan, in the final house had been dropped. Wuderich also faced other charges, including assault for his actions inside Safa's house and the house nearby, and dereliction of duty for giving the order to shoot first, ask questions later. The trial finally began on January 9, 2012, in an old converted barracks at Camp Pendleton in California.

Witterich came dressed in uniform, green pants with a khaki shirt, adorned with bars of ribbons commemorating his various military achievements. A Marine prosecutor, Major Nicholas Gannon, stood up to give the government's opening statement. There's a thing that typically happens in an opening statement by a prosecutor. It's something I've seen so many times. Wuderich's lawyer Farage has, too. I mean, look, if you go into any civilian courtroom in a murder case of this type, you're going to have the prosecutor have a PowerPoint slide or some other application where you're going to put the picture of the victim, their age, and how they

died. That's how you begin, right? This is a case about the murder of these innocent people, and here they are, and they had a life, and they're, right? And that's how you begin. And then you talk about the rest of it. Not to inflame the passions of the jury, but that's what the case is about. That's not what happened in this trial. Gannon, the prosecutor,

described how Wuderich shot at the men by the white car and at women and children inside two houses. But he never said the names of the dead in his opening statement. In fact, before the trial had even begun, the prosecutors had requested permission from the judge to remove the names of the victims from the charges against Wuderich and instead refer to them by numbers. The judge agreed, saying, quote, And so, at trial, the victims were identified by the numbers that the Marines had scrawled on their bodies with a red sharpie after the killings. It's not clear from the documents why the government wanted to do this, but Farage told me there could be a strategic reason. Came down to who was on the jury. The jury in the Wuderich trial, as in all military trials in the

U.S., was made up entirely of other members of the military, specifically, in this case, other Marines. Not chosen randomly, like they would be in the civilian world, but handpicked by a commander based on their experience. Every single juror in the Wuderich trial handpicked by a commander based on their experience. Every single juror in the Wuderich trial had been deployed to Iraq. To Farage, this presented a real strategic advantage for the defense, albeit one that from a moral perspective, he found somewhat despicable. I think trying it to a military jury, there's probably going to be a significant bias against Iraqis if the jury has served in Iraq. And I say that because there was a uniform dislike or bias for Iraqis.

I don't know why. I mean, we were supposedly going there to give them freedom, right? But we hate them and they're allaches, and we want to kill them. Every juror did answer no when they were asked in jury selection if they were biased against Iraqi civilians. But when a prosecutor asked the jurors if they would give more weight and credibility to an average Marine than to an average Iraqi, every juror appeared to answer yes. Faraj told me that his best guess as to why the prosecutors would have wanted to replace the names of the dead with numbers

is that the prosecutors assumed that any effort to make this all-military jury connect with dead Iraqis was pointless. Farage's opening statement was all about ingratiating himself with this all-military jury, talking to them marine to marine. ingratiating himself with this all-military jury, talking to them marine to marine. Farage portrayed Wuderich as a squad leader who was just trying to do the best he could under difficult circumstances. Farage tried to conjure up the feeling of being on patrol in a convoy in Iraq,

like Wuderich and his squad were on the morning of the killings. He told the jury, quote, and then you're in the vehicles and the doggone wheels are turning and dust comes up and then you start to sweat because you're wearing the flax and helmets. You all know what I'm talking about.

We're talking about sort of the fog of war and of decision-making. You know, the sweat, the dust. Farage described for the jurors how the IED exploded. It was quite dramatic. He said, talking about Wuderich, Farage told the jury that Wuderich saw his boots quelched the ground beneath his feet, and he walked into this dust storm. Farage told the jury that Wuderich saw Tarazes' shattered body with both legs gone, arm gone,

and he knew he was dead. Farage's opening statement was also about casting doubt on the government's evidence against Wuderich in all kinds of ways. Farage implied to the jury that Woodridge's squad mates were either lying to the jury or were confused about what really happened. Frage suggested that NCIS had used lengthy interrogation sessions to get the Marines to say what they wanted them to say. He offered that Marines couldn't see much inside the houses because their safety glasses were scratched and dusty. And above all else, Farage emphasized that it was other Marines,

not Wuderich, who were responsible for what happened. Farage closed by asking the jury to, quote, give Staff Sergeant Wuderich's life back, to put Haditha behind us, and to move on. to put Haditha behind us and to move on. And then the government began to present its evidence to the jury. Over two weeks, the government put on a parade of witnesses to testify against Wuderich. There were two forensic pathologists

who showed the jurors many of the photos that the Marines had taken of the bodies. The pathologist noted how many of the victims had been shot in the head from relatively close up. There was an expert on the rules of engagement. And then there were Wuderich's own squad mates. Five of them came into the courtroom to testify against their former squad leader. Sonic Delacruz testified about the first killings of the day, the shooting of the five men by the white car.

He told the jury that Wuderich opened fire on the men, even though they weren't doing anything threatening or suspicious. And there was testimony about what happened inside the houses. Humberto Mendoza testified that Wuderich told him to shoot whoever answered the door at one of the houses. Humberto Mendoza testified that Wuderich told him to shoot whoever answered the door at one of the houses. And so Mendoza said, that's why he killed the man who came to the door, because his squad leader told him to. And then there was Stephen Tatum. Tatum told the jury that he'd seen Wuderich shooting in two houses, first in the living room of one house, and then in the back bedroom of the house nearby,

where so many children were killed with their mom on a bed. But there were problems with these witnesses. For one, it was clear that many, or maybe even all of these witnesses, didn't want to be there. And they hadn't always told the same story about what happened that day. For some of them, their stories had shifted over the years. The defense made a big deal out of this at trial. And there was something else. These witnesses weren't random people who'd happen to see what happened that day.

Most of them were involved in it themselves. They were shooters, too. And some of them had done other things that day that the defense was eager to highlight for the jury in the case of dela cruz he'd also told investigators that he'd beaten some iraqis he detained that day kicked them in a way that wouldn't leave any marks and he told investigators that sometime after the killings he'd returned to the white car and stood over the body of one of the dead men lying there. He told investigators, quote, I had to piss at the time, and I was pissed off that TJ had died. So I decided to piss on one of the dead Iraqi males outside the white car.

I remember that I pissed inside the head of the dead Iraqi, the one with half of his head blown off. One set of voices the jury never heard were those of the Iraqi eyewitnesses, the videotaped depositions of Safa, Abdulrahman, and Iman, the three children whose parents had been shot to death by the Marines. Although the prosecution had put the children through the painful process of having them go step by step through every detail of their parents' deaths, everything they'd witnessed, every detail they could recall,

in the end, the prosecutors opted not to use a single word of it. Sitting in the courtroom listening to all this was a lawyer who worked for a high-ranking Marine Corps commander. This commander wasn't in the courtroom himself, but he was the one responsible for what the prosecutors were doing. His role was so important in this case that I want to take a minute to explain it. The way it worked back then in the military, the commander oversaw every major decision the prosecutors made. Big decisions, like granting immunity or reducing charges, required the commander's approval. It was the commander in the Haditha cases who dismissed the charges against Sherritt and wrote him that glowing letter. It was the

commander who signed off on the immunity deals given to Tatum and the other Marines. Nothing major in the case could happen without the commander's approval. And this commander wasn't some lawyer sitting in an office somewhere. He was a general with thousands of troops under his control, responsible for all kinds of things that had nothing to do with criminal cases. There really isn't anything like this in the civilian criminal justice system. A powerful person who oversees everything that prosecutors are doing and has the power to approve or deny all of their most important decisions, but who doesn't necessarily have any legal education or experience. And this commander

also had to consider other things that go far beyond what happened in the courtroom. Things like the effect of the case on troop morale and on the mission, even on the United States' relationship with foreign governments. Things that most certainly do not come up in your typical criminal case in the civilian justice system. I should note that there have been some recent limits placed on the commander's power in some of these kinds of cases. They came about because of concerns about how sexual assault was being handled by the military. The Haditha case had gone on so long, it actually passed through several commanders. General Mattis had been in charge early on.

But by the time Wuderich's case came to trial, it was the responsibility of a lieutenant general from Minnesota named Thomas Waldhauser. And the lawyer on Waldhauser's staff, the man who was in the courtroom watching it all unfold, was a young attorney who, it turns out, would end up playing arguably the single most important role in what happened next. It's Kurt. Hi, is this Mr. Kurt Kumagai? Yeah.

Kurt Kumagai had never granted an interview about Haditha before, but when our producer Samara gave him a call, he said he was up for talking. Yeah, that'd be fun. I'm glad you're writing about it because I know I would love to sit down and talk to you because I have a different perspective than I think a lot of people do. Kumagai had been a pretty junior lawyer when he'd started advising on the Haditha cases, back when the Marines were first charged. He told Samara he was surprised to find himself in such an important role after just two years working as a military lawyer. You know, me, that was two years into my career and got going into the most high-profile cases, you know, we've had in a generation.

Like, holy moly, what I stepped into. And I remember, I was like, wow, you know, am I qualified to act as a legal advisor on these? Am I going to be able to keep up with all this? There were other lawyers working in the office, more experienced ones. And for a while, those lawyers were the ones who took the lead role on Haditha.

But as the case dragged on and on for years, other lawyers in the office came and went, but Kumagai stayed. And soon, he was the only person left with any kind of institutional memory. And so, despite Kumagai stayed. And soon, he was the only person left with any kind of institutional memory. And so, despite Kumagai's lack of experience, despite the fact that he was just a deputy, he came to be seen as the expert on the case.

And so they were relying on me. It was like, well, what do you think? While Kumagai was sitting in the courtroom, listening to all these Marines testify, he was watching the jury. Because I was trying to read the jury and I couldn't tell, like, I don't know which way they're going. You know, the government put on its witnesses and its evidence, like, okay, good.

And then, you know, then Neal or Hatham would cross-cut and I was like, okay, I can see holes there. It was just like a back and forth, back and forth. And it was like, you know, that's what, it's like a toss-up. Like, I don't know. One day in the middle of the trial, Kumagai got a phone call. It was from one of Wuderich's lawyers, Neil Puckett. Puckett said he'd been talking to the prosecutors, and they had a proposal that they wanted Kumagai to take to the commander.

What if we ended this whole trial right now? What if Wuderich took a plea? Wuderich would plead guilty to one count, but the more serious charges against him would be dropped. I don't know why the prosecutors wanted this deal, because again, they declined to talk to me. But Kumagai told Samara that when he got this call, he was intrigued. The way the trial was going, it wasn't clear to him what the jury was going to do. He thought it was possible Wuderich would be acquitted, and then no one would be held responsible. So when the call came... It's like, wow, this is pretty fortuitous.

You could just say a bird in the hand is worth two in the bush. You know, for me, it was like, okay, I don't know how this trial is going to go, but I'm going to get something out of it. We talked to another lawyer who was advising the commander back then. His name is Greg Gillette, and he disagreed with Kumagai. I remember my position firmly. I was opposed to a deal. Even if the court may have found not guilty on everything, even if the court may have found guilty only on one small crime, one lesser offense, I think there's some value in allowing the process to play out, allowing the system and the victims and the public to watch it play out, showing that that's why we prosecute these cases in the first place is important. Gillette was actually Kurt Kumagai's boss. But Gillette said he didn't have as much experience as Kumagai on the case.

I wasn't involved for years like Kurt was or the prosecutors were. They knew the case much better than I did. And so Gillette said he stayed out of it. He let Kumagai take the lead. Kumagai went to the commander, Lieutenant General Waldhauser, and recommended that he approve the plea deal. But Waldhauser said no. He thought the jury should be allowed to reach a verdict. He's like, you know, Kirk, you know, let's let the members decide this. You know, we're far enough along. Let's just, he had trust in the members to do the right thing. So the trial continued.

But a few days or so later, at a retirement party for the commander's secretary, Kumagai tried again. It was, it was, it probably wasn't the most appropriate function to do it, but I also kind of saw a fleeting opportunity of like, okay, you know, you gotta, you gotta take your shots when you have the opportunity. I had a shot. I was like, okay, I'm gonna take it. And if he says no, then we're just going to move on. But he just walked up to me and said, hi, like, sir, I need to talk to you. Like, it's not a really good time. And then I just, like, took him in and was like, sir, I think we really should take this deal.

And this time, Waldhauser agreed. And he said, okay, if you think so. I'm like, okay. And that was that. Just two weeks into the trial, the government had folded before the jury even got a chance to deliberate. Waldhauser, now a retired general, declined to be interviewed, but he did send us an email about his decision to accept a plea. He confirmed that at first, he did want to let the trial play out, but that later on, quote, upon further consideration and taking into account the differing recommendations of the legal team,

my line of thinking became, after all this time, if the government's objective was a conviction for Staff Sergeant Wuderich, then the plea bargain was the sure way to make that happen. The plea deal the Marine Corps had agreed to with Wuderich was incredibly generous. All the most serious charges would be dismissed. Wuderich would plead guilty to just one count of negligent dereliction of duty, for giving that order to his Marines to shoot first, ask questions later. It's a low-level charge, the same charge you could get for falling asleep while you're supposed to be on duty, or using a military vehicle for a personal errand. All the charges for the actual killings, for the shooting of the men by the white

car, for everything that happened inside those houses, all of that would be dropped. There would be no conviction for the killings themselves. Wuderich would serve no time in prison. The judge announced this non-sentence sentence in court, saying to Budarich, so that's very good for you, obviously. Budarich was discharged from the Marine Corps a free man. He did end up with one small consequence, a reduction in rank. His lawyer, Hatham Faraj, told me that rank reduction was irrelevant. It didn't matter because he wasn't going to jail. was irrelevant. It didn't matter because he wasn't going to jail.

He was discharged with a general under honorable conditions, I think. So, in effect, I think his only punishment was the reduction in rank. Which was really, in terms of like having any practical consequence. Nothing. Essentially a parking ticket with negligent deletion of duty. Okay, it's meaningless. The government decided not to hold anybody accountable. I mean, I don't know how else to put it. I sent the Marine Corps a long list of questions for this story.

They didn't answer any of them. Instead, they emailed me a brief statement. The email said, in part, Every day, in combat and in various roles throughout the world, Marines have acquitted themselves with honor and courage in some of the most difficult and dangerous environments imaginable. In the Haditha case, all individuals were entitled to the protections of the Constitution

incorporated in our system of military justice, to include the presumption of innocence. It ended with a standard Marine sign-off, Semper Fidelis, always faithful. When Samara first talked to Kirk Kumagai, the lawyer who recommended that the commander accept the plea deal, he told her that he was proud of the deal, thought it was the best outcome for everyone. And he said the most important part of the plea deal was a document that Wuderich had signed. This document was called a stipulation of fact. These are pretty standard in plea deals. It's a document where both sides agree on key points of what happened. To Kumagai, Wuderich's stipulation represented the culmination of everything. It was what made the whole thing, the massive investigation, the immunity

deals that were given to secure testimony, the abrupt ending of Woodridge's trial, all worthwhile. Because in that document, he acknowledged his responsibility. And yes, I understand that, you know, he didn't serve any time in confinement. He, you know, he didn't get a punitive discharge. Basically, he got to walk out a free man. It's like, okay. But he took responsibility. And that's really the focus for me was somebody's got to be responsible for this.

Okay. So this charge itself is like a low, it's a low-level charge. Correct. But it sounds like for you, the actual charge and punishment was not at that point really the biggest point. It was really the stipulation and just having like a statement of responsibility, basically. That's fair. Yes. Yes. I wasn't focused on punishment. I was focused on responsibility for what had happened. The way Kumagai was talking was like he wasn't even talking about a criminal trial,

where the goal of the government was to prosecute and punish someone for a violent crime, but rather some kind of accountability exercise, as though the only goal all along was just to get someone to say what happened. One of Kumagai's regrets was that he no longer had a copy of this document, the stipulation of fact. He'd actually lost it. I tried to save it and, you know, I can't find it. And I was like, I wish I had that. He kept bringing it up. Were you able to find this type of fact? So have you gotten it? Have you done a four-year request? I hope you get that. I've got to find that document.

In fact, we did receive the stipulation of fact. In the documents the government sent us in response to our lawsuits. Well, I'm going to make your day. I'm going to send you your precious stipulation of fact. Here it comes. Oh my God, I would love that. Thank you. Let me see. Oh my god, I would love that. Thank you. Let me see.

Oh my gosh. But as Kumagai read it, he got quiet. Okay. There was a very long pause. Frank Wuderich's stipulation of fact is five pages long. It focuses on Wuderich's order to his Marines to shoot first, ask questions later. Wuderich had never denied giving that order, and giving it was the only thing that Wuderich had pleaded guilty to. In the document, Wuderich takes responsibility

for giving the order, but that's about it. The statement says nothing about which specific Marines killed which people inside the houses that day, nothing about which Marine killed Safa's mom and siblings as they huddled together on the bed, or which Marine killed four-year-old Abdallah as he cowered in a corner with his mother in their living room. When I sent you the stipulation of fact, I felt like you got a little, maybe I'm misreading this, I felt like you got a little subdued when I sent it to you. Was it a different thing you remembered? You didn't misread it. I guess I might have some remorse that, to me, what can I have done better? Because I was the one that, for lack of a better term, was the chosen one to be the expert on this, you know, did I mess up?

I don't know. I know that the stipulation had been very important to you when considering the plea deal, and I guess, was it worth it for this? I don't know i mean i guess because i i think when you talk to greg because you know he was almost going to pull me back because he thought maybe i was too invested and i think he wanted it to just let the members decide um i don't know. Maybe that would have been better. Now, in retrospect, maybe we should have. And that's why I'm questioning myself is,

you know, like, man, what can I have done better? You know? So there's not all these questions. I don't know. Being reunited with this document after all these years and realizing that it wasn't what he'd remembered and talking about all this with Samara seemed to lead Kumagai to reconsider how he thought of the entire case. Samara ended up on the phone with Kumagai a lot during this time, as he would basically process out loud what he'd been thinking at the time and how he thought now.

us out loud what he'd been thinking at the time and how he thought now. Like how he now feels about the decision to drop the charges against Lance Corporal Stephen Tatum, the Marine who NCIS said had admitted to knowingly killing women and children in two houses. Kumagai was the one who'd recommended the commander drop the charges against Tatum. I'm trying to, you know, justify in my mind why we did that. You just shot an unarmed child. Man, I'm just kicking myself because you brought up, how did we wind up giving Ted an immunity? It's like, man, why did I let trial counsel let me do that? My God. You know, just like, why did I let them talk me into that?

And Kumagai started thinking about the family members of the people who'd been killed. What are their feelings about the family members of the people who'd been killed. What are their feelings about the resolution? I think they hoped that these people would be executed or go to prison for the rest of their life. I think that is their feeling. And I don't think that's unreasonable, right? If somebody killed one of our relatives like this, we would want the same thing.

Yeah. But, you know, is this, you know, from a family member's perspective, I wouldn't be satisfied with this. Yeah. Like, man, you know, who was looking out for their welfare? I just, you know, I'm not trying to beat myself up, but man, you're making good points. And, you know, what kind of resonated is like, well, who's looking after the victim? Like, man, kind of screwed that up. The Haditha case had collapsed completely.

No convictions for the killings. No punishment for the deaths of 24 men, women, and children. What to make of all this? What had happened? The way I saw it, the end of Wuderich's trial represented the culmination of years of questionable decisions, starting from the very day of the killings, when no one from the unit reported the incident as a possible war crime. That decision ended up delaying any investigation for months. And when there finally was an investigation, the one by Colonel Watt, it was friendly, grandfatherly, to use Watt's own words.

And then, of course, there was the more serious NCIS investigation that had uncovered all kinds of damning evidence against a number of Marines. But rather than aggressively prosecute every one of them, the Marine Corps decided to drop the case against Justin Sherritt and the one against Sonic Delacruz and the one against Stephen Tatum. When Frank Wuderich's case finally made it to trial in a military courtroom,

the prosecutors had stricken the names of the victims and instead referred to them by numbers, and had chosen not to use any of the statements made by the Iraqi eyewitnesses, maybe because they were operating in a system where the jury was made up entirely of members of the statements made by the Iraqi eyewitnesses, maybe because they were operating in a system where the jury was made up entirely of members of the Marine Corps, who were unlikely to be sympathetic to the dead Iraqis or their families. The plea deal itself seemed to arise from a desire to just end the trial with some kind of conviction, no matter how low-level the charge was or how lacking in punishment it

would be. All of this was done on the recommendation of a junior lawyer, who himself seemed surprised at how much power he'd been given, and signed off on by a commander whose job was to protect the mission of the Marine Corps above all else. There wasn't one explanation for what had caused the case against Wuderich and the others to collapse, but all these individual explanations were all connected to something larger. At every turn, the problems with this case could be traced back to the fact that it was handled in-house, by the Marine Corps itself. That made me wonder, was this just one very messed up case?

Or was it part of a larger problem with how the military handles alleged war crimes? After the break, we try to answer that question. Hi, this is David Remnick, and I'm pleased to share the news that I'm Not a Robot, a live-action short film from the New Yorker's Screening Room series, has been shortlisted for the Academy Awards. This thought-provoking film grapples with questions that we can all relate to about identity and technology and what it means to be human in an increasingly digital world. I encourage you to watch

I'm Not a Robot, along with our full slate of documentary and narrative films at newyorker.com slash video. I wanted to know if what happened in the Haditha case, the failure to punish anyone for the killings, was an outlier. It made me wonder what happens in all the other cases of American service members accused of war crimes. I thought this might be fairly straightforward to find out,

because the military itself is supposed to keep track of its war crimes investigations. It's a requirement put in place in 1974, after a notorious war crime, the killing of hundreds of civilians by U.S. Army soldiers in My Lai, Vietnam. After those killings, the Department of Defense issued a directive ordering each branch of the military to keep their records on war crimes investigations in a central location, a depository. That way, in theory, anyone, a reporter, a member of Congress, you, could request that information and get it. And so we asked each branch of the military to give us the records in their depositories to make us a copy of everything in their giant box labeled war crimes.

Months passed. The Army eventually sent us a confusing spreadsheet with columns of alphanumeric codes, almost no details about the incidents or what happened to the cases, and no information on the perpetrators. The Air Force sent us a PDF containing even less information, with almost every important detail redacted. The case numbers, the names of the perpetrators, their pay grades, all of it missing. And in a column labeled victim, rather than list the actual names of the people harmed, most of the time it just said society, or Air Force. The Department of the Navy, which includes said, Society, or Air Force. The Department of the Navy, which includes the Marine Corps,

wrote us a letter saying they'd searched, but, quote, the depository did not contain any records. The box labeled war crimes appeared to be empty. We assumed records about these crimes had to exist somewhere in the military's files. But the military made it clear that if we wanted them, we would have to request them one by one, case by case. And that's how we entered into a not-very-fun guessing game with the U.S. military. They told us that they could release records on individual war crimes to us if we knew what the war crime was. Like we'd have to give them a suspect's name or a date or a location.

But how could we know these things without the military telling them to us? It was like they were saying, if you can guess what's behind the curtain, we'll give it to you. We would have to find these war crimes on our own. And so we began combing through thousands of old news stories, reading human rights reports, consulting legal and medical journals, reading through so many detainee abuse records amassed by the ACLU, looking basically everywhere we could. We decided to limit our search to records of violent war crimes allegedly committed by U.S. service members in Iraq and Afghanistan after 9-11. We'd find a mention of a possible war crime in a news story. We'd send the details to the military. We'd find another mention of a different war crime in a document published by the ACLU.

We'd send those details to the military. On and on it went. We kept sending them their own war crimes, one FOIA after another. More than 600 FOIA requests in all. Then another not-so-fun twist. The military ignored our FOIAs, or they denied them, or they would reply but not give us what we were looking for. So we sued them, sued them multiple times, in fact. And slowly, over years, we managed to pry loose, case by case, the documents the military had in its own files. Document after document with allegations of horrific war crimes committed by Americans. Army soldiers pushing Iraqi men off bridges into the

Tigris River. Marines waking a man in the middle of the night and kidnapping him from his own house, murdering him, and planting a shovel with his body to make it look like he'd been digging a hole to bury an IED. A mother and her two daughters shot while weeding a bean field.

An Afghan electrician shot in the head as he begged for his life. An Iraqi cowherder killed. An Afghan doctor killed. A wounded insurgent suffocated and shot. The torturing of detainees in endless different ways. Choking them. Covering them in ice.

Beating them with the butts of guns. Pushing them into barbed wire. Shocking them. Sicking dogs on them. In all, we collected information on 781 possible war crimes, incidents that the military itself took seriously enough to investigate. Allegations of violent crimes, like murder and assault, committed by American service members in Iraq and Afghanistan after 9-11.

We had, it turned out, amassed what appeared to be the largest known collection of possible war crimes investigated by the U.S. military. The sort of thing that you would think should just be readily available to anyone. The details of what the people we are sending to war are doing

once they're there. The details of the crimes that some of them committed and how the military handled those cases. We're publishing what we found online. You can see the records yourself we needed to analyze them, to get beyond the anecdotes of individual cases and get a broader picture of what happens

when allegations of war crimes enter the military justice system. We wanted to see how often the military actually charges, convicts, and punishes people accused of war crimes. So we read each document and entered important details on each case into a database. And then we took all of this and sent it to a researcher named John Roman. He specializes in analyzing data about the criminal justice system. And so we asked him to analyze ours. So these are murders, these are serious assaults, these are kidnappings,

these are, you know, cruelty and captivity. These are all things that would be considered to be serious felonies in the American civilian criminal justice system. Roman told us, of course,

he could only comment on the data we'd given him. Though there were undoubtedly more war crimes, crimes that the military hadn't turned over to us, and crimes that had never been reported at all. So we don't know how much of the picture we see, but I can describe the picture we do see, and it's quite interesting. Looking at all this information with Roman, we discovered something quite startling. Most of the time, when these allegations of violent war crimes entered the

military justice system, what happened was basically nothing. The military would investigate, but determine that the incident wasn't really a crime, or that the allegation couldn't be substantiated. More than 65% of the allegations the military investigated were dismissed like this. The records just filed away in a government office somewhere and forgotten. Of the remaining incidents, the ones that were determined to be criminal, most of the time in the cases we had records for, the punishment for these crimes was pretty minor. Some docked pay, a rank reduction, or a stern letter placed in a permanent file. There were a handful of cases that did result in years behind bars, but those were by far the exception. We found that fewer than one in five perpetrators connected to these crimes appeared to receive any kind of prison sentence at all.

For those that did, the median sentence was just eight months. An army private first class, who shot an Iraqi woman dead at a market, sentenced to six months confinement and kicked out of the military. A Marine lieutenant, who was charged for shooting an unarmed motorcyclist in Afghanistan and shooting at another man, given nothing more than a letter of reprimand. An army officer found guilty on two counts of negligent homicide for ordering the executions of two Iraqi men, given a written reprimand and reduced pay for a year. A sergeant convicted of shooting an Afghan man in the neck, killing him,

sentenced to 90 days of hard labor, $3,000 of shooting an Afghan man in the neck, killing him, sentenced to 90 days of hard labor, $3,000 of his salary forfeited, and a rank reduction. A Marine reservist, tried for beating multiple detainees, including one who later died, demoted and sentenced to 60 days hard labor and house arrest in the barracks, with allowances to visit the fitness center and the barber shop. A sentence that, by the way, was later reduced by a commander. A military policeman at Bagram Air Base, who admitted to striking two detainees, both of whom later died.

Convicted of assault, maiming, and cruelty. Sentenced to only a reduction in rank. And given an honorable discharge. and rank, and given an honorable discharge. Case after case of serious crimes like murder, treated like minor transgressions. And so, there really is no accountability for war crimes, at least not when the people in charge of that accountability are members of the U.S. military. You have to question a little bit whether justice is a priority here or if something else is a bigger priority than justice.

What happened to the case against Frank Wuderich and his squad mates for the killings in Haditha was not an anomaly. It was just business as usual. Shortly after the plea deal, Wuderich told a reporter, ending up where I am now is probably the most fair and best scenario for me. Right now, I'm most focused on the future and trying to provide for my kids. Six months later, after leaving the Marine Corps, Wuderich paid a visit to his hometown of Meriden, Connecticut, to attend a golf tournament held to raise money for him and attend a steak dinner in his honor.

All of this was part of a special new day in Meriden, Frank Wuderich Day. It had been organized by local veterans. Wuderich was pictured in the local paper buying raffle tickets at the Polish Legion of American Veterans. He was wearing plaid shorts. He'd grown a goatee. His hair was dyed blonde. Wuderich told the local paper, I wish there was something I could do that could change the perception of me. The only way is to live my life the best what had happened during Wuderich's trial. They all told us that no one from the U.S. military let them know that the trial had ended in a plea deal with no prison time.

For the survivors, there was no accountability, no justice. There was only a decision to be made about how to go on living without those things. For Ihab, whose husband was one of the four brothers killed in the final house, this decision about how to go on wasn't just about herself. Her son Bakr was just one when his father was killed, and his younger brother Omar was born a few months after the killings. Iyab told me she'd saved all the gifts that her husband's brothers had given to baby Bakker. She would show the presents to Bakker, as though to say, see how excited your uncles were to welcome a new baby into the family. See how much they loved you. She would show him the gifts and tell him,

this was from your uncle Marwan. This was from your uncle Ketan. She said, I tell Bakker, when you were not born yet, they were thinking about what to get you. She tried to be strong for her children. She talked to them every day about their father and uncles. She explained how they died, but she also shared good memories. She wanted her boys to be proud of them, to know that they were good men. Their house was full of photos of their father and his brothers.

As the years passed and Bakar and Omar got a little older, Ihab would sometimes walk into a room and find the boys staring at the photos and crying. They would ask her, why don't we see our father? And in those moments, Ehab had a thought. It was as though seeing her boys

looking at these photos, she could see into the future, see two grown men consumed by anger, the kind of anger that can destroy a person's life. She told me, I didn't want them to carry hatred in their hearts. And so, Ehab made a decision. She took down the photos.

But she said, I will never forget. Next week, the final episode of season three of In the Dark. To see for yourself how the military justice system handles allegations of war crimes, go online and check out the database we've built. You can read the records for yourself

and read summaries we've written of many of the incidents we were able to track down. You can also find the entire investigative file for the Haditha case there too. Explore all of this and more at newyorker.com slash season three.

In the Dark is reported and produced by me, Madeline Barron, managing producer Samara Fremark, producers Natalie Jablonski and Raymond Tungakar, and reporter Parker Yesko. In the Dark is edited by Catherine Winter and Willing Davidson. Interpreting in Iraq by Aya Muthana. Additional interpreting and translation by Aya El-Sukarchi. Additional translation by Shereen Khalid. And a thank you to Iraq Body Count for sharing their data with us. And to the ACLU for its torture database. This episode was fact-checked by Linnea Feldman Emison.

Original music by Allison Leighton Brown. Sound design and mix by John DeLore. Our theme is by Gary Meister. Our art is by Emiliano Ponzi. Art direction by Nicholas Conrad and Aviva Mikhailov. FOIA legal representation from the FOIA team at Lovi & Lovi. Legal review by Fabio Bertone. The Season 3 Data Project was directed by Parker Yesko,

with reporting, writing, editing, and fact-checking by the In the Dark team and Will Kraft, Meg Martin, Hannah Wilentz, and Cameron Foose. Data analysis by John Roman. In the Dark was created by American Public Media and is produced by The New Yorker. Our managing editor is Julia Rothschild. The head of global audio for Condé Nast is Chris Bannon. The editor of The New Yorker is David managing editor is Julia Rothschild. The head of global audio for Conde Nast is Chris Bannon. The editor of The New Yorker is David Remnick. If you have comments or story tips, you can send them to us at inthedarkatnewyorker.com.

And make sure to follow In the Dark wherever you get your podcasts. Hi, this is David Remnick. I'm proud to share the news that three films from the New Yorker documentary series have been shortlisted for the Academy Awards. And they are Incident, Seat 31, Zoe Zephyr, and Eternal Father. And they all immerse you in the finest cinematic journalism, exploring themes of justice, identity, and the bonds that shape us. These extraordinary films, which were created by established filmmakers as well as emerging artists, will inform, challenge, and move you. I encourage you to watch them along with our full slate of documentary and narrative films at newyorker.com slash video.