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Marine shooter seeks immunity in Afghan case

January 11, 2008|David Zucchino | Times Staff Writer

CAMP LEJEUNE, N.C. — A Marine who fired at least 200 machine-gun rounds during a March incident that left as many as 19 Afghans dead will not testify before a special court of inquiry unless he is granted immunity, his civilian lawyer said Thursday.

Fellow Marines have testified that, after a car bomb attack on their convoy in eastern Afghanistan, Sgt. Joshua Henderson fired his M240 in response to what U.S. forces believed was enemy small-arms fire.

Henderson "has nothing to hide," attorney Charles W. Gittins said, but "he's in the zone of people who could be prosecuted."

Six Marines who have testified this week before the military fact-finding panel have been granted immunity. Once the court completes its inquiry, a special operations commanding general will decide whether to bring charges.

For The Record
Los Angeles Times Tuesday, January 15, 2008 Home Edition Main News Part A Page 2 National Desk 1 inches; 55 words Type of Material: Correction
Marine inquiry: An article in Friday's Section A about a Marine Corps court of inquiry into a March incident that left as many as 19 Afghan civilians dead said the findings would be reported to a special operations commander. The findings will be reported to the commander of the U.S. Marine Corps Forces Central Command.

The Marines have told the panel that Henderson fired his machine gun as many as 10 times during the incident, but that they could not see what he was firing at or what he hit. They testified that they did not see any gunmen or feel any rounds strike their vehicles.

Because Henderson was in a turret atop his Humvee, fellow Marines said, he had a better view of events along Highway 1 near Jalalabad as the convoy rushed back to its base after the attack.

The Afghan Independent Human Rights Commission has accused the special operations Marines of firing indiscriminately over a 10-mile stretch -- killing civilian men, women and children. This week, a Marine counterintelligence officer on the convoy testified that the shooting had been "excessive."

But six Marines from the 28-person convoy have testified that the firing was "controlled" and that it adhered to Marine rules of engagement. Defense lawyers have also disputed the casualty total.

Two other turret gunners and a Marine who reportedly fired during the incident have been advised not to testify, defense lawyers said.

The actions of the gunners -- part of Marine Special Operations Company F -- and their commanders have been a point of inquiry during the first three days of testimony.

Henderson previously told the Naval Criminal Investigative Service, which is also looking into the incident, that he had positively identified at least three gunmen who were firing on the convoy after his vehicle was struck by a car bomb. He said he returned fire at two "MAMs" -- military-age males -- on the left side of the highway and another on the right side.

"I know that my life and the lives of the [convoy members] were at risk when we were ambushed," said Henderson, who was wounded in the arm. "Everyone I fired at . . . I positively identified firing at the . . . convoy with a gun."

Henderson said he also fired warning rounds into the pavement and into the engine blocks of approaching cars that did not heed his hand signals to pull to the side of the road.

"I was threatened constantly with oncoming traffic failure to slow down and pull off the road," he told investigators in a statement.

Sgt. Heriberto Becerra-Bravo, the driver of Henderson's Humvee, told the court of inquiry Thursday that he heard Henderson fire at least 10 different times. Asked whether he thought Henderson fired wildly or indiscriminately, Becerra-Bravo replied, "No."

And former Marine Cpl. Don J. Davis, who drove the Humvee just behind Henderson's, testified that the company's commander, Maj. Fred C. Galvin, had stressed strict adherence to the rules of engagement and that Galvin had said identified attackers should be responded to with proportional force.

Galvin was very clear "about what you can and cannot do," Davis said.

Pending the outcome of the inquiry, Henderson -- who, Gittins pointed out, has not yet been awarded a Purple Heart for his combat injury -- is scheduled to deploy overseas in August.

"He's good enough to deploy, but not good enough to get a Purple Heart?" Gittins said.


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