Hamdania Lieutenant Ordered to Court-Martial

By: MARK WALKER - NC Times Staff Writer | March 19, 2007

CAMP PENDLETON - A Marine officer who commanded a platoon charged with killing a civilian in Hamdania, Iraq, last year has been ordered to face a court-martial for the alleged assault of two other residents of the village.

Lt. Gen. James Mattis, commander of the I Marine Expeditionary Force and all Marines serving in the Middle East, made the decision in the government's case against 2nd Lt. Nathan Phan last week, said Maj. Jeff Nyhart, a Marine Corps spokesman.

It was announced on Monday, after Phan returned to Camp Pendleton after a leave and was served with the notice of court-martial, Nyhart said.

Mattis rejected a hearing officer's recommendation that Phan also be tried on a third count of assault and dismissed charges of making a false official statement and conduct unbecoming an officer for incidents occurring in Hamdania in March and April 2006.

Phan's lead attorney, David Sheldon, said he believes the 26-year-old will ultimately be exonerated.

"I believe he will be fairly judged on the facts and circumstances and will be vindicated," Sheldon said during a telephone interview from his offices in Washington, D.C. "We hope the case goes to trial by May because Lt. Phan is anxious to resume his Marine Corps career."

Marine prosecutors are forbidden from discussing ongoing cases.

Phan was in charge of a platoon of Camp Pendleton Marines accused in the April 26 abduction and slaying of a retired Iraqi policeman, Hashim Ibrahim Awad. Five of the eight men from the 3rd Battalion, 5th Marine Regiment charged in that case have pleaded guilty.

A Sacramento-area native, Phan was not present when the homicide took place and was not accused of any wrongdoing in that incident. But his attorneys contend that prosecutors leveled the charges of assault and making a false official statement last August after trying but failing to connect him to that case.

During a turbulent five-day Article 32 hearing conducted in January to help determine whether Phan should be court-martialed, conflicting evidence was presented to the hearing officer, Lt. Col. William Pigott.

Three enlisted Marines testified that investigators from the Naval Criminal Investigative Service falsely attributed statements to them linking Phan to the assaults.

The hearing also disclosed that the government had no evidence that Phan filed a false official statement, an accusation rooted in a radio report regarding an Iraqi detainee.

The two assault charges Phan will contest allege that he choked two Iraqi detainees in Hamdania, placing an unloaded pistol against one's mouth and spraying soda pop into the nose of the other and saying it was acid. The alleged incidents took place during an attempt to gather intelligence about insurgent activity in an Anbar province region northwest of Baghdad.

The alleged assaults took place a few weeks before the homicide involving the men under his command.

Formally arraigning Phan and establishing a trial calendar are the next steps in the government's case. Sheldon said the case will be tried before a 12-member panel of Marine officers.

The Hamdania case is separate from allegations that a different group of Camp Pendleton men murdered two dozen Iraqi civilians in the city of Haditha in November 2005. Four enlisted Marines face murder charges in that incident, and four officers are charged with failing to fully report the incident. Trial proceedings have yet to begin in those cases.

In the Hamdania homicide, motion hearings for two of the remaining defendants, Sgt. Lawrence Hutchin III, the squad leader, and Cpl. Marshal Magincalda are set to take place at Camp Pendleton next week.