The Price of a Ribbon: Murder I. Hashim Ibrahim Awad lived a semi-peaceful existence with his wife and 11 children in the small village of Hamdaniya in Iraq. He had been an Iraqi police officer and was retired. He liked to pass his days with his kids and grandkids. He also liked catching up on the town gossip with friends while sipping the highly sweetened tea omnipresent at all social gatherings in Iraq. There was a shortage of everything now. But somehow they managed to have enough tea to enjoy a few cups of it throughout the day. Unfortunately, the sugar to sweeten it was not always as easy to get. Life had become exceedingly difficult after the U.S. invasion of Iraq. That’s not to say that it was easy before. Life under Saddam had become intolerable starting in 1980 when he decided to invade Iran. That war brought the country to its knees and destroyed the future hope of the country by snuffing the lives of over a million young men conscripted by the mad man to fight his war. Then after that war ended, he made another psychotic decision to invade Kuwait. That invasion brought the wrath of the United States and the rest of the world. While the loss of life to combat was not as high as those suffered during the war with Iran, this war destroyed the country’s infrastructure. Iraq went from being one of the most advanced civil societies in the Arab World into one of its least advanced. Mr. Awad did not hate the United States but he did not love it either. He preferred that they would just leave Iraq alone. If Saddam upset America, then they should just kill him. He believed and knew America is capable of doing anything it wants. So if the Americans really wanted to get rid of Saddam, they could. American soldiers seemed to be everywhere. They even knew about private phone calls. To Mr. Awad, the American soldiers occupying Iraq were often rude, displayed an open hostility to most Iraqi men whom they called military aged males (MAMs), acted with belligerence, and when threatened ruthlessly opened fire. They were trigger happy. Mr. Awad could not understand why the Americans always believed that people in the town knew of the Al-Qaeda whereabouts. There is no Al-Qaeda in Iraq. Those people come from Saudi Arabia, the friends of the Americans. And if they decide to kill Americans then so be it. The Americans should leave Iraq alone and go take it up with the Saudis. Mr. Awad believed he knew why the Americans were in Iraq. It is not about the Al-Qaeda. It is about the oil. The American government may be able to fool its own people but they cannot fool the Iraqi people. Iraqis have never been Al-Qaeda. That is not the kind of Islam followed in Iraq and the Americans knew it. Why cannot the American people understand that? During his service as an Iraqi police officer, Mr. Awad suffered a leg injury that left his left leg partially disabled and that limited his mobility. At night, during the hot summer months while his family climbed to the roof of their one story house to escape the summer heat and sleep, he had to remain inside the house because he could not climb the stairs. On the evening of April 25, 2006, as the family climbed to the roof of the house to sleep, Mr. Awad placed his thin foam mattress in the corner of the living room, laid down, and waited for the terrible heat to dissipate a little so he can sleep. It was going to be another long hot summer especially without electricity. Damn Saddam and the Americans he thought. II. This was not 3rd squad’s first deployment to a war zone together. But they did have a new untested squad leader and a few “Boots” who had never even deployed before. The squad leader, Hutchins, had never been tested in combat but was charismatic and cool enough that the veterans liked him and more importantly trusted him. The last time this squad deployed, they were in the thick of the heaviest combat the Marine Corps had engaged in since the legendary battles of Hue City in Vietnam. They fought in the Battle of Fallujah. Many military historians determined that the battle of Fallujah was much more intense and deadly than Hue City. Hue City Marines did not face Improvised Explosive Devices or anything of the sort in their battles with the Viet Cong. Hue City combat pitted one force against another in a built up environment which on its own creates an intense combat environment. The Marines of Fallujah had to fight a determined enemy that deployed modern sophisticated weapons, innovative battle tactics that used supporting positions that covered different firing positions, in a built up area along with those damnable IEDs. Corporal Trent Thomas hated the IEDs. He had no problem fighting and understood that he might not go back home to his family. He had no problem with that. That’s life, the life of a warrior but he did not want to get blown up by an IED. He really hated those things because they just seemed unfair. They made him angry and made him hate the people that planted them. He also hated the Iraqi people because he sensed and knew that they knew exactly where the IEDs were being placed. Did they not understand that he was there to give them freedom, liberty and democracy like the President said? Trent hoped that this deployment would be a quite, unlike the last one. And so far it seemed to be. They got to Iraq in October of 2005. The area they were in was nothing like Fallujah. He couldn’t say people are friendly, but they also were not hostile. There were of course bad guys but thank God not many IEDs. They have been out on patrols a few times and they had yet to get hit. The unit adjacent to them took a bad IED in March of 2006 and lost a couple of guys. Their zone is still quite. Only another six or so weeks and this would be all over. He would return home to his wife and family and have some down time. Trent was ready for it. He did not want to say it to everyone because he did not want the other guys in the squad to think he was dropping his pack or that he did not want to fight. Once you’ve been in the fight, you understand. But these guys did not and could not be made to understand until they got some of that experience themselves. Marshall Magincalda (Magic) his closest friend in the squad was the exception to that. They fought together side-by-side in Fallujah and both had been bloodied. They saved each other’s lives and had become blood brothers. They would share thoughts of going back home and what they would do after the Corps. They did not speak of those things to the young inexperienced kids in the squad. They had to remain alert. Nor was it discussed with Larry Hutchins, the squad leader. He was a sergeant but had never been in combat and was eager to get some action. He was very interested in earning the Combat Action Ribbon so that he might earn his place among warriors. Trent and Magic did not talk to him about going back home very much because they felt his eagerness to get into some sort of firefight before they returned. They sensed that his eagerness to fight and their eagerness to return home might conflict. They, therefore, kept the discussions of return to themselves. III. As infantrymen, affectionately known as “grunts”, they rarely received medals for their action. Their officers –the guys who write the medal nominations- were too busy planning and preparing to write medals. Occasionally a grunt would do the extra-extra-extraordinary and would get nominated for a medal and some colored ribbon. That was the exception, however. Grunts live their Grunt lives engaging in heroic actions. Doing something extraordinary is rarely ever noticed and recognition is never expected. They embrace the motto “Among Marines…uncommon valor is a common virtue.” There is one piece of recognition though that every grunt desires. It doesn’t even come with a medal. It’s just a piece of colored ribbon yellow, orange and blue. It means the wearer was shot in a firefight. The ribbon is known as the Combat Action Ribbon and few Grunts who deploy to Iraq fail to qualify for it. It appeared that this tour was going to be the first one when a Combat Action Ribbon would not be earned by the Marines of Third Squad. And Sergeant Larry Hutchins wanted one more than anything. Larry Hutchins was becoming impatient. They were well into their fourth month of deployment with no real fighting yet. Pretty soon the squad and the entire platoon would be moved to a safer area to begin to prepare to return to the U.S. and the opportunity to earn that warrior badge, the Combat Action Ribbon, would be gone, perhaps forever. Hutchins thought of someway that the squad could do something to allow them to see combat. He often spoke to his Platoon Commander, Lieutenant Phan, about tactical movements and ways to flush out the bad guys. Hutchins thought Lieutenant Phan was a good guy. He hated these Iraqis just like he did. He knew that they could not be trusted. Lieutenant Phan may not have any more combat experience than Hutchins does, but he was proving his mettle by picking up some of these Iraqi MAMs and extracting intelligence from them. On numerous occasions, Hutchins watched as Lieutenant Phan interrogated MAMs and used techniques that Hutchins sensed were probably illegal but who cares, he thought. Fuck’em. They’re all terrorists or will become terrorist and everyone one knew it. Plus, Lieutenant Phan’s Vietnamese background probably meant he knew what he was doing. Hutchins liked Phan’s tactics. IV. When Trent Thomas and Marshall Magincalda arrived at the ambush site near the tiny hamlet of Hamdaniya on the night of April 25, 2006, they were preparing for another boring and sleepless night. Ambushes typically were boring because, usually, nothing happens. They had been to this Hamlet before. They suspected that there are probably some bad guys there but the bad guys had learned not to challenge the Marines. The Army units in the next sector-over were getting beat up by IEDs. The Marines had established a strong presence and made it clear that they would not tolerate being probed, tested or attacked. The locals learned quickly that the guys in the tan outfits were serious. They labeled them as the tan devils and stayed clear of them. The Army unit in the sector adjacent to the one the Marines occupied did not fare so well. They constantly suffered IED attacks and a high casualty rate. The Marines of Third Squad laying in ambush near Hamdaniya on the night of April 25 and the early morning of April 26 knew that the attackers of the Army came from their sector. They had discovered a massive arms cache in an open area behind the houses and had good intelligence village that the attacks were planned and carried out by people from their sector. The suspect –master mind- for the attacks was a man by the name of Gowad but he was elusive and always a step ahead. They know where he lived and had questioned him on more than one occasion but were never able to catch him with any evidence that could prove his guilt in court. The Marines had even arrested him once but he was released a few days later because they did not produce sufficient evidence to keep him locked up. V. “That’s a stupid idea. Why the fuck would we do that?” said Magincalda. “This way we’ll get rid of Gowad once and for all” replied Hutchins. Thomas waivered. He agreed with Magic when Magic spoke; then agreed with Hutchins when Hutchins replied. The junior members of the squad were not privy to this plan. Hutchins took Magic and Thomas aside to brief them on the night’s actions. Magic, Thomas and the Corpsman “Doc” Bacos would leave the ambush site, grab Gowad, and bring him to a depression in the road left by an old IED. There he would be bound and left until the three joined the squad in the ambush site. Once the squad was all joined together they would orient on Gowad and open fire together as Hutchins calls in a report that they were in view of a terrorist digging a hole to plant an IED in the road. The plan would get rid of Gowad, earn the squad a few medals and a Combat Action Ribbon for Hutchins. Magincalda did not like it. Thomas was not crazy about the idea but who the hell is he to question his squad leader. Besides, getting rid of Gowad cannot be a bad thing. “Well what if we don’t find Gowad?” said Magincalda. “Grab someone else” said Hutchins. “They’re all terrorists anyway. At around 12:30 a.m. on April 26, Magincalda, Thomas and Doc Bacos left the ambush site and headed for Gowad’s residence. After knocking and inspecting the house by looking through windows, they realized that it was empty. Falling back on the alternate plan they went to the house next door. VI. The knocking rustled Hashim Ibrahim Awad from his restless sleep. It was still hot and the warm still air inside the house made sleeping difficult. He struggled to stand up and steady himself on his feeble legs. He suspected the Americans were on another one of their middle-of-the-night searches. He would open the door and cooperate and soon return to his limp mattress to steal whatever rest it could still offer. The women and children were awakened by the knocking as well. They knew the routine. They would remain in place as their father let the Americans in. Awad opened the door to the three Americans who looked like aliens to him in their goggles that can turn the night into day, their armored vests and helmets that turned them into imposing impenetrable giants. “Come outside sir.” “No English” said Awad. Thomas stepped forward and guided Awad outside the house. On the roof above the women and children looked on. Terror gripped them. The Americans are taking their father away again. I wonder how long he’ll be gone this time, they collectively thought. Mr. Awad stepped forward and began to walk with the Marines. While Bacos remained with him, Thomas and Magincalda went to grab a shovel and an AK-47 automatic assault rifle from other houses nearby. In Iraq, every house had an AK-47. The Americans permitted it. The plan hatched by Hutchins required that they plant a shovel and an AK-47 to make it look like the person was in fact digging a hole. Mr. Awad began to slowly shuffle along the road guided by the Marines. His bum leg made the walk exceedingly difficult and slow. The 800 meter distance to the ambush site took more than 20 minutes to cover. But they were finally at the hole in the road. Once at the hole, Magic and Thomas bound his arms and placed him in the hole. They left the shovel next to Mr. Awad, called in to Hutchins that they were about to reenter friendly lines and began their way back along with Doc Bacos, to the ambush site. Once they reestablished contact with their squad, Hutchins called in a report to his higher headquarters and reported an armed man digging an IED hole in the road. That statement was the cue for Magincalda to point the Ak-47 into the air and break the quite stillness of the warm night with cracks of machine gun fire simulating taking fire from the terrorist on the road. Awad’s family heard the gunfire on the roof and wondered what was going on. Someone must have ambushed the Americans, they thought. They prayed for their father’s safety. The report of the Ak-47 was the initiating signal for the squad that was now oriented on the disabled man in the whole. Thomas opened up first with his M-16 automatic assault rifle. He directed the junior Marines to open up fire on the man in the road with their M-16 assault rifles and M-249 Squad Automatic Weapons. The Marines fired in a massive volley of automatic fire on the bounded man in the road believing him to be the hated Gowad. On the road, sensing the betrayal and imminent mortal danger, the crippled man struggled to free himself. He managed to leave the hole but his crippled leg would not cooperate. He had moved fifteen or so feet when the first bullet tore through his old body. He fell but continued to try and escape the bullets. The bullets were faster than he. They caught him and began to claim what was not theirs to claim. Bullets riddled his body. He was still alive when the squad of Marines made its way to him. Thomas aimed and took a last shot at the head killing him. He removed the tie from Awad’s hands. Hutchins called in a report of a dead terrorist. VII. “I am ashamed of your actions and have no desire to represent you. I was once an infantryman and an NCO. Don’t ever put yourself in the same category as me.” I said to Thomas. The attorney interview room was no more than a windowless ten feet by ten feet room. I had been assigned to the case despite my protests. I was against this goddamn war and had no desire to represent its war criminals, especially war criminals from the very unit I had served with as a young Marine, the storied Fifth Marine Regiment. “What do you have to say for yourself?” I asked. Silence. What was there to defend? These fucking murderers executed a helpless man without any cause or justification. I am furious. What defense could there be? How do I explain what I am doing to my friends and family? This is worse than My Lai. At least at My Lai the murderers could use anger as an excuse for their conduct. These guys were never attacked. They simply wanted to kill. My head was full of these thoughts and others that threatened to rob me of any peace of mind forever if I defend this murderer. By the time I got the case, Thomas had confessed to investigators, in a letter to his wife that was intercepted by jail authorities and on a video letter he prepared for his wife in Iraq. He admitted to the cold blooded execution. My co-counsel was a senior civilian lawyer who had far more experience than I. He wanted to try and get a deal. I didn’t care about the case. A deal would give me the out I was looking for. Besides, I was the military attorney, meaning I was going to second chair. In either case I began to prep. The case was going to be referred capital. I began to attend courses on capital litigation this is no territory for me. I learned to delve into my client’s background and not just seem him as the embodiment of his monstrous act. As the months passed, my position on Thomas softened. I got to know him as a person. I still detested his actions and thought he deserved whatever he got but I did not hate him anymore. VIII. I sat transfixed as Milton Grimes demonstrated the dramatic first-person closing argument from the Manuel Salazar case. It was like watching a movie. I could see the terror Salazar experienced, the horror of the pointed gun and the inevitability of the response to defend himself. In August of 2007, Joey Low coordinated a unique TLC seminar for lawyers that were defending some of the war crimes cases at the Camp Pendleton Marine Corps Base in California. Gerry, Milton Grimes, Jim Nugent, Joshua Karton, Don Clarkson and a few others came Camp Pendleton to contribute of their talents and gifts. It was my first ever exposure to TLC; though I had heard about it. The three day seminar was transformational. I began to reconsider my position on Thomas. I decided to discover the story. I filed a motion to have Thomas brought to my office and began to discover the full story. I discovered a young man who was easily persuaded. He suffered a Traumatic Brain Injury (TBI) that caused him to succumb to any authority figure. Tell him to jump off a bridge and he just might if he trusts the person giving the command. The murderer became a small innocent child who wanted nothing more than to please. He overcame adversity, poverty, hardship, and the pull of the streets. “When we lived in St. Louis my mother lost her job for a few years. We moved into an abandoned houses that had no running water or electricity. Sometimes we would have to share them with bums. When my mother would leave to go look for work or go to some temporary job, I was the one that looked out for my younger sister. At night, in the cold, we would have to shit in plastic grocery bags because there was no bathroom.” I found in Thomas a humanity that had thus far eluded me. He began to demonstrate remorse but also expressed the fear and anger at the people who planted or knew of the IEDs. I discovered that Lieutenant Phan was committing his own war crimes. I found out about the heroic actions of Thomas and Magincalda in Fallujah and the strict adherence to a code of conduct and the law of warfare under the leadership of a commander who showed humanity to the Iraqis, respected the rule of law and set an example for his men to follow. IX. “I don’t think we should try for a plea agreement.” I said. “What do you mean?” said my civilian co-counsel. “I believe I can win this” I replied. “I can’t agree to that” he said. “You don’t understand this case” I told him. “I can win it.” We continued to disagree. I finally told him that we should let the client make the decision. It’s his to make anyway. “Trent, I think I can win this. Do you trust me to take this to trial?” I said. Trent of course trusted me. We had spent countless hours and days together discovering his story, psychodramatically uncovering layers of trauma and conflict in his life. We became friends. We were again brothers who shared the legendary heritage of the Fifth Marine regiment. “yes! I trust you, sir.” He replied. My co-counsel decided to step back from being lead. I took over. I began to prepare in earnest. This became my case. My preparation included intense sessions of role reversals, scene setting and light psychodrama to get a deeper understanding of the command environment that led to the execution. I role reversed with Lieutenant Phan and Sgt Hutchins. I spoke to Magincalda and participated in some of his team’s trial preparations. I discovered in Lieutenant Phan a man who was unsure of himself. Fear drove him to behave badly and to set a poor example. I would have to cross him softly. X. Trial Began in early July of 2007 and lasted three weeks. The Government called dozens of witnesses. Forensic scientists and scene reconstructionists of all sorts testified. Experts on the law of warfare testified. The Government presented an excellent case but did not call Phan. I was going to have to have to call him. I preferred to cross him. That’s how I had prepared. I called Phan in my case. I began slowly. I felt his fear. I reversed with him. I blamed him for the murder but I also understood that he was weak and scared. I did not attack. He began to trust me. He gave me all that I wanted. He admitted to his own crimes, his failure to set an example and to having been told by Hutchins of a plan to take Gowad which Phan endorsed by remaining silent. I could sense the jury’s anger at Phan. I could feel their gaze. The energy in the room was changing. The jury was beginning to understand. The next two witnesses were a forensic psychologist and psychiatrist. They spoke of Thomas’ childhood and his combat related Traumatic Brain Injury. The difficult childhood and the trauma to his head left him with a tendency to follow the lead of people he trusts. Unlike Magincalda who immediately saw Hutchins’ idea as a bad one, Thomas embraced it because it came from Hutchins. On July 27, 2007, the jury returned a verdict of not guilty on all murder and conspiracy charges. I had asked them to give Trent back to his Mother, wife and sister. They did just that. Haytham Faraj, TLC 2009 Haytham Practices in Michigan, Illinois and the District of Columbia. He is a retired Marine Corps officer with twenty-two years of service of which sixteen years were in the infantry. His last military assignment was as the senior defense counsel at Camp Pendleton in California. He focuses on federal and military criminal defense. Haytham Faraj, Esq. 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