Update on Ilario Pantano, III

There's more news out in the story of Ilario Pantano, the Marine accused of murder in the shooting death of two Iraqi insurgents last year. It doesn't strike me as especially good for Pantano.

In the Wilmington, North Carolina Star-News (registration required), AP reporter John DeSantis has an article that includes part of the actual statement Pantano made last June to military investigators, as well as the names of the two witnesses, radio operator Marine Sgt. Daniel Coburn and Navy medical corpsman George A. Gobles:

Sgt. Coburn and Corpsman Gobles were ordered to take positions facing away from the car, and Lt. Pantano stood approximately 10 feet from it.

“As the sergeant and the corpsman served as my guardian angels, I told the two Iraqis via hand signals to search the car and to pull apart the seats,” Lt. Pantano said in his statement, given after he was advised of his rights against self-incrimination. “They were talking the whole time … I told them several times to be quiet by saying ‘stop’ in Arabic. They continued to talk.”

One of the men was searching the front seat, leaning in from the driver’s side, while the other man was searching the rear driver’s side.

In the statement, Lt. Pantano said he could not see their hands and that they had their backs to him.

“After another time of telling them to be quiet, they quickly pivoted their bodies toward each other. They did this simultaneously, while speaking in muffled Arabic. I thought they were attacking me and I decided to fire my M-16A4 service rifle in self-defense,” Lt. Pantano’s statement reads. “I believed that they were attacking me, and I felt I was within the rules of engagement to fire.”

So far, so good. Although it might be considered suspicious that Pantano ordered Coburn (who denies that he held a grudge against Pantano, as Pantano's lawyer claimed) and Gobles to take up sentry positions where they could not see what was going on, the fact remains that there were no witnesses to Pantano's initial shots. Pantano's actions up to this point could legitimately be considered to have been in self-defense.

From there, however, things get weird:

Lt. Pantano said in the statement he set his weapon to fire three-round bursts; his magazine held anywhere from 25 to 30 rounds of ammunition.

“I hit the men with my rounds and continued to fire until my first magazine was empty. I then changed magazines and continued to fire until the second magazine was empty... I had made a decision that when I was firing I was going to send a message to these Iraqis and others that when we say, ‘no better friend, no worse enemy,’ we mean it. I had fired both magazines into the men, hitting them with about 80 percent of my rounds.”

Pantano may have legitimately fired his initial rounds in self defense, but surely by the time he stopped to insert a fresh magazine, whatever immediate threat there had been to his life had passed. Indeed, Pantano himself admits that by that point he was no longer firing in self-defense; he was firing to "send a message".

It's possible — and I'd expect Pantano's lawyer to argue — that his initial shots were in self-defense, and then he simply fired the subsequent "message-sending" shots into the insurgents' dead bodies. Shooting a dead body may be inapprorpiate, but it's not murder.

For its part, the Marine Corps is presumably taking the view that Pantano intended from the very beginning to shoot the insurgents for the purpose of "sending a message". I'm not familar with evidentiary rules and burdens of proof in the military justice system, but it could be difficult for the Marines to establish that Pantano intended to murder the two insurgents before he fired his first shots.

Another view of the case comes from Duke University Law School Professor Scott Silliman, himself a former attorney in the Air Force. Interviewed for the above article, Silliman expressed skepticism about Pantano's claims:

“Why would you stand so near to the vehicle that you risk being killed in an explosion?” Mr. Silliman said. “You blow the car up. You move away and blow it up.”

The professor suggests Marine officials are distressed about some aspect of the case that casts it beyond the pale, resulting in the premeditated murder charges. He is not surprised that some Marine officers consider the shooting an execution.

In most military cases where self-defense is claimed, Mr. Silliman maintained, a lesser charge would result.

“The Marines would have charged manslaughter and not premeditated murder,” he said. “There was a drastically different version of the facts that was out there somewhere.

“We are going to have to wait for the Article 32 hearing,” Mr. Silliman said, noting that if the case goes to a court-martial, capable minds will weigh testimony and evidence.

Pantano's Article 32 hearing is expected to take place in April.