Lawyer: Charges dropped against Marine

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assault charges against a Marine Corps officer for his alleged treatment of insurgent detainees in Iraq have been withdrawn, but he will face administrative punishment for mishandling interrogations and could be discharged from the service.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 Nathan Phan were withdrawn last week by order of Lt.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.