A Marine who fired at least 200 rounds from his machine gun after his special operations unit was attacked by a car bomber in Afghanistan won't testify before a panel looking into the deadly incident, his attorney said Thursday.
Much of the testimony heard this week at a rarely used fact-finding proceeding investigating the unit's response to the bombing has focused on the actions of Sgt. Joshua Henderson, who was in his Humvee's gun turret when a minivan packed with explosives detonated nearby.
"He's in the zone of people who could be prosecuted because he's a gunner," said his attorney, Charles Gittins. "All they've got to do is grant him immunity."
Afghanistan's Independent Human Rights Commission has said the Marines responded to the March 4 bombing by firing indiscriminately at pedestrians and motorists. An Army investigation concluded 19 Afghan civilians died, but attorneys for the two officers under investigation argue the death toll was lower and the shooting was a justified reaction to a well-planned ambush.
The Court of Inquiry will recommend whether charges should be filed against the officers: Maj. Fred C. Galvin, 38, of the Kansas City area, the company commander, and Capt. Vincent J. Noble, 29, of Philadelphia, a platoon leader.
Gittins said no one, including his client, should be charged.
"There was an IED (improvised explosive device) followed by a complex ambush," he said. "The Marines engaged the people who engaged the Marines. That's self-defense."
In a written statement provided to military investigators, Henderson said that when he got back into position after being knocked out of the turret, he saw two men firing at his six-vehicle convoy. Henderson said he fired his M240 machine gun to the left at a sport utility vehicle the men were using as cover, then fired at one man shooting at him from the right.
Earlier Thursday, the driver of Henderson's Humvee, Sgt. Heriberto Becerra-Bravo, testified that he heard small arms fire in the distance during pauses in Henderson's firing.
"When he was firing, he was firing in controlled bursts. ... eight to 10 rounds at a time," Becerra-Bravo testified.
Staff Sgt. Frederick Ferguson, an explosives expert riding in another Humvee, testified Thursday that he also heard small arms fire after the car bombing. Ferguson said his gunner fired once from the rear of the convoy with a .50-caliber machine gun.
He also said that right after the blast, he heard on the radio that the convoy was being shot at from both sides of the road.
"Are you satisfied that the small arms fire was enemy small arms fire?" asked defense lawyer Mark Waple.
"Yes, sir," responded Ferguson.
Becerra-Bravo and Ferguson are the latest of several Marines to tell the court they heard small arms fire in the seconds after the car bomb exploded.
Their unit was on its first deployment after the 2006 creation of the Marine Special Operations Command. After the shooting, eight Marines were sent back to Camp Lejeune, and the rest of the company was taken out of Afghanistan.
Maj. Gen. Dennis J. Hejlik, the commander of the Marine Special Operations Command, later said he disagreed with that decision and that the unit responded appropriately. Marine Corps commandant Gen. James T. Conway also criticized an apology issued by an Army brigade commander, calling it premature because an investigation remained under way.
The Marine Corps last used the Court or Inquiry more than 50 years ago to examine the drowning of a trainee. Court officials said the panel will hear two witnesses Friday morning before adjourning for the weekend. The hearing, which began Monday, is expected to run through the end of next week.