Statement overstated what witness said, NCIS agent admits

By: Rick Rogers - Union-Tribune Staff Writer | January 26, 2007

Two weeks ago, a defense lawyer accused agents for the Naval Criminal Investigative Service of fabricating several witnesses' statements used to charge a Camp Pendleton Marine with assaulting three Iraqis.

Attorney David Sheldon's claims reverberated far beyond the assault case against 2nd Lt. Nathan P. Phan of Sacramento. They threw a spotlight on controversial NCIS practices such as not using audio recordings or videotaping to take statements from witnesses. Instead, the organization's agents generate the statements by typing up their interview notes and asking witnesses to sign them.

On Friday, the lawyer's accusations of fraud gained some traction when an NCIS agent reluctantly admitted that a statement overstated what a witness actually said.

In a Camp Pendleton courtroom, Special Agent Mike Austin testified that a statement prepared by fellow NCIS agent Aaron Bode went beyond what he heard during an interview with Lance Cpl. Christopher J. Faulkner in June.

Austin recalled Faulkner saying he could see someone choking a detainee, but that he didn't know who did the choking. In the statement prepared by Bode, Faulkner was quoted as saying that he saw Sgt. Lawrence Hutchins choking an Iraqi while Phan looked on.

Phan was Hutchins' superior, and both were part of the Kilo Company, 3rd Battalion, 5th Marine Regiment.

Austin said he had no explanation for the discrepancy. Marine prosecutors said Bode was working in Australia and could not be reached.

Sheldon said he planned to call to the stand two more Marines who also will testify that NCIS agents changed witnesses' statements.

The latest developments came during the continuation of Phan's pretrial hearing. Phan faces charges that he beat or choked three detainees last April in the rural town of Hamdaniya.

In previous testimony, a fellow defendant said such assaults were meant to punish suspected insurgents and get them to divulge information, such as a tip that led Marines to a sniper and a kidnapping cell.

Phan is the former platoon leader of seven Marines and one sailor charged with abducting and executing Hashim Ibrahim Awad, an unarmed grandfather, last spring in Hamdaniya.

Military investigators said that while probing Awad's death, they found evidence that eventually led to the case against Phan. He faces three counts of assault and one count of making a false official statement.

Friday's hearing was filled with acrimony between the prosecution and defense teams. At one point, the hearing officer, Lt. Col. William Pigott, admonished both sides after learning that they didn't exchange all the necessary evidence needed for the hearing.

"Do you want me to make the right recommendation or not? We owe it to that Marine sitting there," Pigott said as he pointed toward Phan.

Pigott will review evidence from the hearing and suggest whether Phan should face court-martial. The final decision rests with Lt. Gen. James Mattis, commanding general of Camp Pendleton's 1st Marine Expeditionary Force and the U.S. Marine Corps Central Command.