Did He Go Too Far?

By Paul Quinn-Judge/Camp LeJeune

"No better friend, no worse enemy." The words echoed through 2nd Lieut. Ilario Pantano's head on the afternoon of April 15, 2004. That was the motto of Lieut. General James Mattis, at the time the commander of the 1st Marine Division in Iraq. Like many junior officers, Pantano looked up to Mattis as the consummate warrior-general. The phrase had stuck with Pantano as he tried to keep his men alive in some of Iraq's meanest neighborhoods, where friends are hard to find.

Now, at the most fateful moment of his life, the words came back to haunt Pantano. It was late afternoon, and darkness was setting in. Pantano and his platoon were on a raid north of Mahmudiyah, not far from Baghdad, acting on a tip about a possible insurgent hideout. As the Marines neared their target, they spotted a car fleeing the area. Pantano's men set up a checkpoint and ordered the car to stop. Inside were two Iraqis. One looked to be in his 30s, the other in his late teens. According to accounts given to TIME by Pantano's civilian lawyer, Charles Gittins, the lieutenant had the men get out of the car and remove the seat panels to show there were no hidden explosives or weapons. Pantano watched, covering them with his M-16. At one point they began talking, and Pantano shouted at them to stop. Then, according to Pantano's defenders, the Iraqis turned rapidly and in unison toward him.

What happened next cost both Iraqis their lives, and now, nearly a year later, has Pantano fighting for his. On Feb. 1, the Marine Corps charged Pantano with at least seven violations of the Uniform Code of Military Justice, including two counts of premeditated murder. According to the charge sheet filed by the Marines, Pantano killed both Iraqis--who turned out to be unarmed--by shooting them in the back with his M-16. Pantano is also charged with "willfully and wrongfully" damaging the Iraqis' automobile by smashing its headlights, taillights and rear window. Finally, Marine prosecutors say, he desecrated the bodies of the dead, still inside the car, by placing a sign on the roof that said, in the words of General Mattis, NO BETTER FRIEND, NO WORSE ENEMY. Pantano will face a preliminary hearing, probably in April, that will decide whether his case will be referred to a general court-martial. If that happens and he is found guilty, he will face a long prison sentence or even, possibly, the death penalty. The severity of the charges--and the vociferousness of Pantano's defense, led by his family and backed by fellow Marine officers, Fox News diehards and New York prep-school alums--means that the trial will be one of the most closely watched of any to come out of the Iraq war. The preliminary hearing will be open to the public and so, most likely, will a general court-martial, should it occur. "This one will get tried on TV," says a former military lawyer, "not at some small base in the middle of nowhere."

The visibility of Pantano's saga is due in part to its rarity. Only one other Marine has been charged with murder for actions during the Iraq war; the Army says just five of its soldiers have so far been tried and convicted for serious violent crimes committed in Iraq. Because cases like Pantano's are so unusual, they prove to be bitterly divisive, with the prosecution and the defense equally convinced that they are fighting to uphold the military's core values. In that sense, the Pantano case is a window on a larger debate within the military about how and when to apply the rules of war in a shadowy fight against an unconventional enemy. In the wake of the Abu Ghraib prison abuses and other highly publicized excesses--such as the televised Marine shooting of a wounded insurgent in Fallujah last fall--the top brass is disinclined to tolerate rogue behavior of any kind. When asked about Pantano last week, General Michael Hagee, commandant of the Marine Corps, would not comment directly on the case but said, "There are rules of engagement. All Marines understand what they are. We will hold them accountable."

Pantano's fellow junior combat officers have a very different view. To them, the case against him is at odds with the reality of waging a counterinsurgency in which every Iraqi civilian is a potential threat and attacks are almost impossible to anticipate. Several Marine officers who served with Pantano in Iraq and spoke to TIME on condition of anonymity criticized the Marines for pursuing the case. Pantano, they say, was caught in a combat situation in which he had just two choices: hold fire and risk his life and those of his men, or shoot to kill. He made exactly the decision that many others say they would have made under the circumstances. "When I heard the words premeditated murder," says a Marine infantry officer, "I laughed out loud. Sure, I kill insurgents. That's my job."

At the center of this swirling storm stands Pantano, a 33-year-old officer who peers say was viewed as the top platoon commander in his battalion. "He was consistently the most cool-headed, tactically savvy officer in the field," says a more senior officer. Although Pantano's lawyers have advised him not to give interviews about the charges pending against him, he spoke to TIME about his life and career. From these conversations and interviews with friends and family members emerges a portrait of a born fighter who gave up a prosperous Manhattan lifestyle after 9/11 to rejoin his beloved Marine Corps--only to find himself charged as a murderer by his superiors. Pantano has received a remarkable outpouring of support. Officers and sergeants have written statements on his behalf. High school classmates from New York's elite Horace Mann School are making common cause with Fox viewers and contributing to his defense fund, whose website is maintained by his mother. The fund raised $8,000 in a single day. Old acquaintances find it incomprehensible that their affable friend may be a war criminal. "It's the last thing I would expect," says Hillary Schupf, a Horace Mann classmate. "I'd expect that he'd have military honors, if anything. Not this."

Pantano is not a typical Marine. He was born in New York City and grew up in Hell's Kitchen, then a rough part of town. "You could usually see crack vials lying on the sidewalk," he recalls. High school took him to a very different part of the city. Thanks to financial aid, he attended Horace Mann School in Riverdale, N.Y., a place better known for socialites than for soldiers. Pantano signed up in advance for the Marine Corps. He wanted to make sure he was accepted for the infantry, not assigned some desk job because of his education. "My memory of Ilario is that in a sea of preppy clothing, he wore combat boots and camouflage," says classmate Josh Bernstein. "But he was so real that he got along with everybody."

On graduating, he went straight to boot camp at Parris Island, S.C. He fought in Desert Storm, made sergeant in three years, and left as a scout sniper with a bunch of medals. But in 1993 he left the Marines and returned to Manhattan. He took night classes at New York University and worked by day as an energy trader for Goldman Sachs. After earning a degree in economics, he co-founded Filter Media, a company focusing on interactive TV. He grew long hair and wore flamboyant clothes. In 1999 he met a former model who had worked with the photographer Robert Mapplethorpe. They married and had a nice apartment on 43rd Street, next door to the Rescue 1 Fire House.

Everything changed on 9/11. Pantano was on his way to a business meeting when he saw the burning towers. "It was the most horrendous thing I had ever seen," he says. "It broke my heart." Ten firemen from Rescue 1, three of them ex-Marines, died in the towers. That evening, his wife Jill says, Pantano came back home with his head shaved. "He was already in warrior mode," says his friend J.R. McKechnie. He applied to rejoin the Marines. He was 30, married, a child on the way. "It was really hard on the family," McKechnie says. "Look at Jill. She's a New Yorker, a former model. She had married a hunky media executive, and all of a sudden she ends up with a jarhead on her hands. This is not what she signed up for."

Going back to the Marines meant a 75% salary cut, but Pantano loved it. In January 2004, after a year of officer's training, he was assigned as a second lieutenant to Easy Company of the 2nd Battalion of the 2nd Regiment of Marines--2-2, for short. In mid-March they arrived in Iraq. Pantano prepared his platoon by working the men hard. His men grumbled--enlisted men call officers like Pantano "motarded"--motivated to the point of retardation. But he believed that the more they trained, the fitter they were, the more chance they had of surviving a real war. The effort paid off. In more than 40 combat operations, the platoon suffered one casualty--a shrapnel nick from incoming mortar.

Few of the Marines expected much fighting when they were assigned to Mahmudiyah, just outside Baghdad. Then the insurgency erupted. Newly arrived units took more casualties in a few days than their predecessors had in eight months. Pantano recalls watching a convoy of Marine humvees pass his platoon. "We wave, then realize something is wrong. Tires and windows were shot out, blood was seeping through, out the bottoms of the humvees. Ten humvees had busted out of a kill zone but were shot to hell. There was one KIA, and nearly everyone else was wounded one way or another." Officers interviewed by TIME say that as the emphasis shifted from peacekeeping to combat, commanders issued new rules of engagement that gave the Marines much more latitude in deciding when to use deadly force.

On April 15, the Marines in Mahmudiyah achieved a small breakthrough. Two captured rebels pointed the Marines to the location of a group of insurgents and an arms cache. Pantano's platoon set out for the targets, two large compound-style Iraqi houses, just off a highway. As the Marines approached one of the houses, a car sped away. The Marines shot out the tires, and Pantano arrived with his command element--a Navy corpsman and a radio operator--to check the car.

Pantano had the men's hands tied with plastic handcuffs. As he did so, he received word that a large arms cache had been found in the house the men had just left. Pantano ordered the Iraqis to comb their car for guns and explosives in case it was booby-trapped to blow. He had the men's handcuffs removed, and the two suspects started to pull off panels and seat covers.

What transpired over the next few seconds is disputed by Pantano's lawyers and the Marines. Pantano's defense counsel says that as the two Iraqis pulled off the seat covers, they started talking quietly to each other. Pantano told them, in his rudimentary Arabic, to shut up. They went silent, then started speaking again, this time in muffled voices. Then the two men turned toward Pantano as if to jump him. He told them to halt, and when they did not, he opened up with his M-16. He kept firing until he was sure they were dead. Then, perhaps in shock, he wrote Mattis' words on the sign and placed it on the car--although he soon had second thoughts and took the sign off and threw it away. He slashed the tires that had not been shot out so that the car could not be used by other insurgents, his lawyer Gittins says.

But one of the two witnesses to the shooting gave investigators a different version of events. The witness, a sergeant who was Pantano's radio operator, says the lieutenant shot the unarmed Iraqis without provocation. Officers from 2-2 say the sergeant had a track record of underachievement, and Gittins and several Marine officers say the sergeant had a grudge against Pantano after Pantano removed him from a squad-leader position. Gittins says the other witness, the corpsman, confirms that Pantano shouted a warning and says he saw the men move suddenly. The only difference is that the corpsman, from the angle he was watching, thought that the men might have been trying to escape.

Pantano's lawyers dispute the prosecution's other critical claim: that the two men were shot in the back. "I don't know how they can say that when there are no bodies to examine," Gittins says. The bodies were reclaimed by the families. They came from Latifiyah, an insurgent hot spot where the battalion suffered many of its casualties during its seven months in the country. Gittins says a photograph taken by a Marine appears to show that the two Iraqis died of massive chest wounds.

Despite intense criticism of the charges by Pantano's supporters, the case has steadily worked its way up the chain of command--suggesting either its merit or the unwillingness of Marine commanders to halt such a sensitive inquiry. "It is sad but true that the military leadership is likely to let a case go to trial even if the facts do not merit it because they want to cover their asses," says Gittins. But the Marine Corps stands by its decision to prosecute while, as in most cases in the military-justice system, it won't comment on the charges for fear of jeopardizing the case. "A number of people who have spoken out about the incident--his mother, his defense attorney, his peers--were not there," says Major Matthew Morgan, a spokesman for the 4th Marine Expeditionary Brigade. "But those who attend the hearing will get a clear understanding of why the prosecution feels there is merit to the case."

Many of Pantano's fellow officers believe that the case reflects the gap between the way military leaders prefer to portray the war in Iraq to the public and the way it is actually being fought. "The single biggest problem with the Iraq operation is that the military is at war but the nation is not," says an officer. A former Marine colonel who served for 27 years says the Marine Corps "always values its reputation and image. They want to act and be known as the good guys. They are very mindful of how they are perceived both domestically and overseas, so they will deal with Marines who have broken the rules very hard."

Pantano is now back at 2-2's home base at Camp Lejeune, N.C. In mid-February, a website based in Pakistan put up a photo montage depicting Pantano's severed head. The FBI and local police were called in, and Pantano turned his pleasant modern house into a small armed camp. Guns appeared from various bags and trunks. A bag of flak jackets lay by the couch, and Pantano took to wearing a sidearm under his Thomas Pink shirt. It was as close to the front lines as Lieut. Pantano is likely to get in the foreseeable future. This summer Easy Company will head back to Iraq. Pantano will probably remain at home, fighting the toughest battle of his life. --With reporting by Sally B. Donnelly/ Washington and Nathan Thornburgh/New York

With reporting by Sally B. Donnelly/ Washington; Nathan Thornburgh/New York