Spring 2007

Military Barriers Impede a Newspaper's Investigation

When the Los Angeles Times set out to tell how two Afghans held in U.S. military custody died, its efforts to report the story met resistance at every twist and turn.

By Craig Pyes

Last year, the Los Angeles Times decided to undertake something quite unusual: The newspaper would conduct a parallel investigation to the one being undertaken by the Army's Criminal Investigation Command (CID) into how a small U.S. Special Forces detachment in Afghanistan could be tied to two detainee deaths and two apparent cover-ups in less than two weeks.

The Army's investigations had been launched initially in September 2004 after the Times and the Crimes of War Project, a Washington-based nonprofit RELATED WEB LINK
Crimes of War
– crimesofwar.org
educational organization, had revealed that a young Afghan soldier had died in the custody of the Special Forces team after allegations that he had been tortured. The Pentagon said it had no record of the death.

The Times's disclosures remain one of the rare instances since American troops went to Afghanistan in the fall of 2001 in which independent reporting has uncovered potential war crimes by U.S. servicemen that had apparently been covered up, not only from the public, but from the military itself. The Times's 2004 story was published just two months after the Army's inspector general had issued a detailed report on detainee abuse in Afghanistan and Iraq. Its conclusion: that it had found "no incidents of abuse that had not been reported through command channels."

And while the Times's story led to the Army launching two criminal probes, human rights organizations at the same time were raising questions about the relatively low number of successful military prosecutions in criminal homicide and prisoner abuse cases and whether the military is capable of policing itself in times of war.

The CID spent more than two years investigating the allegations raised by the initial article that I reported and wrote with Mark Mazzetti, then with the Los In previous investigations of prisoner abuse in Afghanistan, CID's investigations have been called into question and their findings revised.Angeles Times. This January, military investigators concluded their probes — apparently having spent the better part of the time deconstructing the cases they'd initially assembled. CID's recommendations to prosecutors cascaded from the most serious charges that could be brought (murder, in one case) to the weakest possible sanctions: recommendations for assault and dereliction charges that brought administrative letters of reprimand, or what a Special Forces officer called a "high-level slap on the wrist," against two soldiers on the Special Forces team.

In previous investigations of prisoner abuse in Afghanistan, CID's investigations have been called into question and their findings revised. We, too, would discover that the military examiners had made some significant errors, including their initial failure to identify the victims. They also grossly misidentified dates of crucial events and persistently failed to interview key people and locate supporting documents. Public accountability was scarce.

Dean Baquet, then the Times's editor, was intrigued by the idea of conducting a parallel investigation. Though he knew the paper's reporting budget was tight and success was far from certain, he paired me with Times reporter Kevin Sack and told us to get to work on the story. While the September 2004 article uncovered the death and torture allegations, we knew next to nothing about the American soldiers involved, other than they were stationed in Gardez, a provincial capital south of Kabul. At the time of the incident, the 20th Special Forces Group, a National Guard outfit based in Birmingham, Alabama, was in charge of the Special Forces mission throughout Afghanistan.

Prior to CID getting involved, an agent remarked that Gardez had the reputation as "the worst facility" in the country. "The Special Forces guys there," he added, "were a bunch of fucking cowboys." He was uncertain about who was running the base because units are transferred in and out. "There are no records," this agent said. "The reporting system is broke across the board."

Obstacles to Reporting

Press investigations into detainee abuse have an inherent reporting problem. As a matter of policy, the military refuses to discuss detainee operations and individual cases. In this case, there were no court papers to be had, and it was unlikely that investigative files would leak from such a tightly guarded investigation that was being closely observed by those at CID headquarters and possibly by those above. In this case, too, not even the victims of the abuse — originally nine Afghan soldiers — wanted to cooperate. They were mostly uncouth militiamen and thugs. (One was holding a young boy as a sex slave when apprehended, according to U.S. military reports.)

The United Nations Assistance Mission in Afghanistan (UNAMA), from which the initial information leaked about the case, also was not helpful. It turned out that UNAMA, too, had not reported the incident, even though the organization had been given overarching responsibilities under the December 2001 Bonn agreement for the protection of human rights in Afghanistan.

But an even greater obstacle was how we would report on Special Forces activities at remote firebases, where most of the prisoners sent from Afghanistan to the prison facility at Guantanamo were first captured and held. Several times, irate Green Berets responded to our inquiries with: "How did you get my name? It's classified."The bases are highly classified and have not only avoided scrutiny from journalists and the public, but are opaque to congressional staffers with security clearances, to the military's own investigators and, sometimes, even to the Special Forces Command itself. The Red Cross does not have access to these outposts, and even the names of the soldiers are treated like state secrets. Several times, irate Green Berets responded to our inquiries with: "How did you get my name? It's classified."

When we went through official channels, the United States Army and all of its relevant subordinate commands declined requests for comment. But their posture was not always passive. The U.S. Army Civil Affairs and Psychological Operations Command (USACAPOC), a part of the U.S. Army Special Operations Command (USASOC), sent out hundreds of e-mails instructing its members to refer any inquiries that might come from us to their public affairs office and to alert their chain of command of the contacts. The guidance began:

"Situation: Reporters Kevin Sack and Craig Pyes, LA Times, have been gathering information from USACAPOC troops about missions undertaken by other SOF elements in Bamian and Gardez, Afghanistan ....

"Facts: Mr. Sack and Mr. Pyes have been asking questions along two lines: 1.) Detainees Abuses 2.) The 'alleged' misconduct of another Soldier at the above mentioned locations. Our Soldiers continue to engage regularly with these two reporters without approval from USACAPOC/USASOC Public Affairs channels."

To fend off rear-guard fact-finding reporting like ours, the USACAPOC public affairs official offered to schedule "media engagement training" for soldiers and "family readiness groups" or to give personal guidance if we should call. She concluded this memo with the words "I look forward to blazing this path with all of you together as our great men and women of USACAPOC support our nation at war."

Situation: The Public Affairs Office was basically a dead-letter box.

Facts: Both Mr. Sack and Mr. Pyes were dubious that going through the public affairs channel would greatly aid the war effort, although both reporters were grateful to the great men and women of USACAPOC for leaking the e-mail.

And so it went.

Yet despite the Army's intransigence, we were able to review thousands of confidential documents, including the following:

  • Internal correspondence of the Special Forces

  • U.S. military intelligence reports

  • Previously undisclosed rules on interrogation techniques approved for Afghanistan

  • Highly sensitive internal reports from the International Committee of the Red Cross, UNAMA, and the prosecutor's office of the Afghan military.

We also interviewed more than 100 people in the United States and in Afghanistan. Those we spoke with included current and past members of the 20th Special Forces Group, USACAPOC, intelligence officers, and senior diplomats. And while we never expected that this story into allegations of torture and criminal homicide by U.S. soldiers would come packaged from the Army's public affairs channel, we were still surprised by the active resistance we encountered along the way.

Dealing With Military Public Affairs

Donald H. Rumsfeld labored six years as defense secretary to build a lighter, faster military for high tech warfare. What he left behind is a public affairs apparatus — at the Pentagon level and at military bases and headquarters — that refuses to shed its siege mentality. Part of the problem is that the people who work in these positions don't regard their job as responding to journalists' questions. Their work is "to transmit the policy and message of the United States," as a sign in the Public Affairs Office at Camp Eggers, Kabul, reminds its staff. Journalists often are perceived to have their own agendas.

In Afghanistan, among Special Forces who are in the field, "media engagement training" can be pretty basic. After Green Berets confiscated some videotape from CBS News in December 2002, the top Special Forces commander issued a directive to his men saying that they did not have authorization to kill journalists "for the sole purpose of recovering film or videotape" unless it was in self-defense.

He went on to let us know that the purpose of the meeting was to make sure that everyone was on the same page in case there was an investigation.Back at the Pentagon, one might expect a bit more of a sophisticated understanding of how press and public affairs operations interact. Near the tail end of our investigation, I contacted the Armed Forces Institute of Pathology to ask about the procedures used by Special Forces to report a detainee death at one of their bases. My questions could have been cleared by Army brass within 24 to 48 hours and answered definitively in 20 minutes without violating Department of Defense guidelines or weakening our national defense. Instead it took more than two months of e-mails and telephone calls for the Army's medical branch to give us an incomplete reply. Some of the information they did dispense was inaccurate.

We were trying to solve whether the commander of the Gardez Special Forces team, known as ODA 2021, had any justification for not reporting the death of an 18-year-old Afghan militiaman named Jamal Naseer, who died while being interrogated at his base in March 2003. The principal focus of our inquiry was to learn the general procedures that should be followed. We were not asking about the discreet facts in this particular case, other than whether the pathology institute had received a death certificate.

The circumstances of Naseer's death were troubling. Of the nine Afghan soldiers arrested, the seven who continued to be detained and held told an official of the United Nations and Afghan military investigators that they had been continuously beaten for more than a week by the Americans using karate, cables and sticks, and that one member — the brother of the deceased — had a toenail pried off. They also claimed that during the interrogations, melted snow water was poured over them, and they were left outside in subfreezing weather and forced to assume stress positions.

Some of these allegations appeared to be backed up by notes and testimony from local doctors who had treated the men after they were released to Afghan police custody. The materials included a statement from the hospital employee who prepared Naseer's body for burial. His corpse was described as being black and green and swollen. His mother's words said "the entire body was full of injuries."

However, as our reporting continued, we learned that there may have been another scenario presented to investigators. Right after the boy's death, ODA 2021 held a meeting at which team members were told that the young militiaman died of complications from a urinary tract infection, an American present at the base told us. He went on to let us know that the purpose of the meeting was to make sure that everyone was on the same page in case there was an investigation.

Attributing Naseer's death solely to natural causes cut against everything we'd learned in our reporting thus far. A prominent forensic pathologist confirmed that the descriptions of the body obtained by the Times indicated the cause of death was blunt force trauma, not organ failure. Although there was a hospital 10 minutes away, the team apparently did not summon a doctor as Naseer's condition deteriorated. Most important, the team commander concealed Naseer's death from his chain of command, who said they did not learn of it until revealed by the Times 18 months later. None of the other team members or their associates broke their silence, either, not even to inform the Red Cross.

Our reporting also had uncovered that within days of Naseer's death, an ODA 2021 team member had shot in the face and killed Wakil Mohammed, an unarmed woodcutter who had been rounded-up for questioning after a firefight in the nearby village of Wazi. The team commander concealed the circumstances of that death from his superiors, as well.

In 2004, when we had contacted the Armed Forces Institute of Pathology, which keeps track of detainee deaths, a spokesman said they had no record of RELATED WEB LINK
Read Pyes' reporting in "In Cowboy and Indian Country: A Special Forces Unit in Afghanistan," Parts I and II »
Jamal Naseer. Now, late in our second round of reporting two years later, we were hearing intimations that CID might be considering the team's explanation as the cause for Naseer's death. We wondered if there might be a death certificate, which is something we were never able to confirm. Forensic evidence in the case was scant, because the family, for religious reasons, refused to allow the body to be disinterred.

So once again I contacted the pathology institute's Public Affairs Office. But now the institute refused to answer any question I asked on the grounds that there was an ongoing investigation. Among the questions refused were:

  • "Does the pathology institute conduct forensic investigations of detainee deaths?"

  • "Did they still regard the information they gave us previously to be accurate?"

  • "And what is the procedure for reporting deaths through the medical chain of command?"

Seeking Information About Naseer's Death

For journalists, the military's investigative and judicial components — such as the Staff Judge Advocate, the Criminal Investigation Command, and the Office of the Armed Forces Medical Examiner — can offer more neutral guidance that can serve to reduce public skepticism about closed-door decision-making. But in this case — and this pattern seems increasingly common throughout the Bush administration — the Pentagon was refusing to disclose any information as a way to avoid providing the analytic framework necessary to assess the issue.

When I complained to the pathology institute that it was practicing excessive secrecy, the public affairs officer denied it vigorously. When I kicked my questions up to the Office of the Assistant Secretary of Defense for Health Affairs and identified myself as a reporter for the Los Angeles Times, the voice on the phone refused to reveal either the name or the telephone number of the person who handles media affairs. Someone would call me back.

Indeed, I was called back promptly by a contractor, a former colonel, who responded to my questions about medical reporting procedures in Afghanistan in March 2003 by reading me Rumsfeld's guidance from 2005. He did not identify the document and said I couldn't quote him, which I found out later had to do with him being a contractor. He would not name the company he worked for, but insisted that his response was authoritative. In fact, it turned out to be wrong because procedures had changed. This happened several times as other public affairs personnel replied to my questions by citing a set of rules that was not in force during the period I was examining.

Eventually I was granted an interview with the Army's Medical Examiner, sent the correct operating procedures for reporting deaths, received confirmation that the pathology institute still had no record of Naseer's death, and was given officious and opaque responses to some of my questions. But to do so took two months. And it required me to leapfrog the public affairs channel and call medical branch people at their homes and to threaten, cajole and plead with them for information that should have been given out crisply and professionally.

In January, CID closed its investigation into the two deaths and abuse allegations after more than two years of inquiry. They found insufficient probable cause to bring charges for either of the two deaths, even though a year earlier they had recommended murder charges against a Special Forces soldier in the killing at Wazi. Two soldiers were given noncriminal administrative letters of reprimand for "slapping" prisoners at the Gardez facility and for failing to report the death of Jamal Naseer.

RELATED WEB LINK
Center for Investigative Reporting (CIR)
– muckraker.org
During the entire course of the CID investigation, the commander of ODA 2021 at the time of both deaths continued to work full-time at the 20th Group headquarters in Birmingham, Alabama and redeployed last winter to East Africa.

Craig Pyes is the senior correspondent at the Center for Investigative Reporting (CIR) and is a long-time contributor to the Los Angeles Times. Will Evans, who is with CIR, contributed reporting to this article.


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