http://www.nytimes.com/2015/12/17/world/asia/navy-seal-team-2-afghanistan-beating-death.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=span-ab-top-region®ion=top-news&WT.nav=top-news&_r=1
By NICHOLAS KULISH, CHRISTOPHER DREW and MATTHEW ROSENBERGDEC. 17, 2015
The three Navy SEALs stomped on the bound Afghan detainees and dropped heavy stones on their chests, the witnesses recalled. They stood on the prisoners’ heads and poured bottles of water on some of their faces in what, to a pair of Army soldiers, appeared to be an improvised form of waterboarding.
A few hours earlier, shortly after dawn on May 31, 2012, a bomb had exploded at a checkpoint manned by an Afghan Local Police unit that the SEALs were training. Angered by the death of one of their comrades in the blast, the police militiamen had rounded up half a dozen or more suspects from a market in the village of Kalach and forced them to a nearby American outpost. Along the way, they beat them with rifle butts and car antennas.
A United States Army medic standing guard at the base, Specialist David Walker, had expected the men from SEAL Team 2 to put a stop to the abuse. Instead, he said, one of them “jump-kicked this guy kneeling on the ground.” Two others joined in, Specialist Walker and several other soldiers recounted, and along with the Afghan militiamen, they beat the detainees so badly that by dusk, one would die.
The four American soldiers working with the SEALs reported the episode, which has not previously been disclosed. In a Navy criminal investigation, two Navy support personnel said they had witnessed some abuse by the SEALs, as did a local police officer. Separately, an Afghan detained with the man who died provided a detailed account of mistreatment by American troops and Afghan militiamen in an interview with The New York Times.
The SEAL command, though, cleared the Team 2 members of wrongdoing in a closed disciplinary process that is typically used only for minor infractions, disregarding a Navy lawyer’s recommendation that the troops face assault charges and choosing not to seek a court-martial. Two of the SEALs and their lieutenant have since been promoted, even though their commander in Afghanistan recommended that they be forced out of the elite SEAL teams.
“It just comes down to what’s wrong and what’s right,” Specialist Walker said in a recent interview. “You can’t squint hard enough to make this gray.”
Even before the beatings, some of the SEALs had exhibited troubling behavior. According to the soldiers and Afghan villagers, they had amused themselves by tossing grenades over the walls of their base, firing high-caliber weapons at passing vehicles and even aiming slingshots at children, striking them in the face with hard candy.
Abuse of detainees is among the most serious offenses an American service member can commit. Several military justice experts, who reviewed a Naval Criminal Investigative Service report on the case at the request of The Times, said that it had been inappropriate for the SEAL command to treat such allegations as an internal disciplinary matter and that it should have referred the case for an Article 32 review, the equivalent of a grand jury, to consider a court-martial.
“It’s unfathomable,” said Donald J. Guter, a retired rear admiral and former judge advocate general of the Navy, in charge of all its lawyers. “It really does look like this was intended just to bury this.”
Assadullah, left, an Afghan who was interrogated in May 2012 by Navy SEALs and Afghan police militiamen, and Abdul Aziz, whose brother died after the questioning. The two were photographed in Kabul in August 2014. CreditAndrea Bruce for The New York Times
Navy officials defended the handling of the case, saying the SEAL captain who oversaw it had had full authority to decide it as he saw fit. The captain, Robert E. Smith, who was then in charge of SEALs based on the East Coast and is now a military assistant to the secretary of the Navy, said in a recent statement that the Team 2 members had denied abusing the detainees.
Captain Smith said that he had found inconsistencies in the soldiers’ accounts when they were questioned five months later, and that conflicting statements from the Army and Navy witnesses “did not give me enough confidence in their overall accuracy to hold the accused accountable for assaults or abuse, or warrant Article 32 proceedings.”
While he said it was “evident” that the Afghan militiamen had mistreated the detainees and that the SEALs had not reported it, he dismissed charges for failing to make such a report.
What happened in Kalach involved just one death in a conflict that has taken thousands of lives, but it had broader consequences. Instead of winning over the local population, the goal of the mission, the reported abuse further alienated villagers. It drove some previously cooperative Afghans to leave for Taliban-controlled areas, residents said.
“You can’t squint hard
enough to make this gray.” SPECIALIST DAVID WALKER, UNITED STATES ARMY
The SEALs’ failure to restrain the Afghan Local Police, who were supposed to protect villages but instead often terrorized them, helped erode confidence in the American and Afghan governments, whose forces have repeatedly been accused of abusing or killing civilians.
During the United States’ engagement in Afghanistan, now stretching into its 15th year, the American military has expanded the mandate for SEALs, sometimes assigning them roles for which they are neither suited nor trained.
Brushing away serious charges, military justice experts said, reflects a breakdown of accountability that feeds the perception that SEALs and other elite Special Operations units get undue leeway when it comes to discipline. In murky wars with unclear battle lines, they warned, that can corrode ethical clarity and undermine morale.
“What’s the message for the 10,000 guys that were in the same moment and said, ‘No, we’re not crossing this line’?” asked Geoffrey S. Corn, a former military lawyer who was the Army’s senior expert adviser on the law of war. “It diminishes the immense courage it takes to maintain that line between legitimate and illegitimate violence.”
This account of the events at Kalach, in southern Afghanistan’s Oruzgan Province, and how the Navy handled them is based on interviews with dozens of current and former military personnel. Reporters located victims and other villagers in Afghanistan and tracked down the four American soldiers who made the abuse allegations, who are now scattered across the United States. Most were initially reluctant to speak.
The Times also obtained the report prepared by the Naval Criminal Investigative Service, including sworn statements by Army, Navy and Afghan witnesses. All names were redacted in the document, acquired through the Freedom of Information Act, but several people familiar with the investigation confirmed them. The report was reviewed by four former military lawyers and a civilian military law expert.
In addition to describing misconduct by the SEALs, villagers complained that the Americans had empowered the local militia to act with impunity — taking goods from shops in the market, ransacking homes and delivering a rifle butt to the belly of those who resisted them.
The Afghan militiamen in Kalach “were like dogs, and the Americans were the masters,” said Hajji Ahmad Khan Muslim Gizabe, a prominent elder there. “The masters would follow behind the dogs, telling them what to do.”
Mr. Gizabe said that he had been among the Afghans who aided Hamid Karzai, the future president, in 2001 when he was flown into Oruzgan with American forces to foment resistance to the Taliban. But after what happened in 2012, he said, “I cannot support the Americans.”
Everything Changed
The small base at Kalach was just a speck in Afghanistan’s rugged terrain, dwarfed by the mountains behind it. The stone wall surrounding the outpost was barely chest-high, offering little protection from a Taliban attack. The objective was to get Americans close to the people they were training, instead of living behind high blast walls and shiny razor wire like most of the troops in the United States-led coalition in Afghanistan.
The outpost was set up by Green Berets, the Army Special Forces troops who recruited the Afghan Local Police. The militia program had become a crucial element of the American strategy to win over villagers and undercut the Taliban. The emphasis on counterinsurgency, as the strategy was known, aligned with the skills of the Green Berets, who were trained to wage guerrilla campaigns by working with irregular militias and supporting local communities.
The Navy’s nine SEAL teams, in contrast, typically conduct capture-and-kill missions and train militaries and counterterrorism forces in other countries. In a place like Kalach, “you need a combination of T.E. Lawrence, John Rambo and the Verizon guy,” said Scott Mann, a former Green Beret who helped design what were known as village stability operations in Afghanistan. “There’s a lot of the Special Ops community that would much rather shoot somebody in the face than do this kind of work.”
Kalach lies in a belt of territory in Oruzgan Province that separates Afghanistan’s central highlands — dominated by members of the Hazara ethnic group, Shiite Muslims who were brutally repressed under Taliban rule — from the southern heartland of the Pashtuns, the predominantly Sunni Muslim ethnic group from which the Taliban draws almost all its support. The groups live separately in Kalach, a village of several thousand people, and the volunteers for the militia were all Hazara, a problem the Green Berets were eager to fix.
“The villagers asked me to talk to the Americans,” said Hajji Muhammadzai, a Pashtun mullah. The Green Berets promised to build schools, roads, bridges and a clinic in return for help recruiting local police officers, Mullah Muhammadzai recalled. Even though the Green Berets found no takers among the Pashtuns, the soldiers addressed the elders with respect, drank tea with them and tried to sway them through persuasion rather than threats, he said in an interview.
An infantry squad that included Specialist Walker, the Army medic, arrived at the outpost shortly before Christmas in 2011. With broad shoulders and blond hair — his nickname was Thor — Specialist Walker could not have looked more foreign to Afghans. But he forged a relationship with the father of a boy whom he was treating for leukemia, and the man continued to drop by the clinic after his son’s death, sometimes passing on information such as when Taliban spotters were watching the outpost. The soldiers also got to know the militiamen, teaching them how to use their weapons and repel the Taliban. There were shared feasts, even a snowball fight.
But the Green Berets rotated out in early 2012 and were replaced by a detachment from SEAL Team 2, whose men had been deployed to Iraq and Afghanistan over the years for operations targeting militants. Other members of the team were scattered across villages beyond Kalach.
Specialist David Walker, an Army medic, treating a villager in Kalach.
“We had to fill so many emerging requirements with units that weren’t necessarily as prepared as they could have been,” said Mr. Mann, the former Green Beret. “There’s a whole mind-set and training curriculum that goes with Green Berets that’s radically different from Navy SEALs.”
The change in tone was soon apparent. Staff Sgt. David Roschak, the Army squad leader at Kalach, said the new arrivals assumed “anyone near the base was, or linked to, the Taliban.” Some of the Team 2 members saw their job as killing enemies, not making friends, he and other soldiers said in interviews.
Several seemed absorbed with the SEALs’ growing celebrity, the soldiers said: They talked about the SEAL Team 6 raid that killed Osama bin Laden, and debated whether to write books like “Lone Survivor,” the account of a SEAL who survived a disastrous mission in 2005. One night, some of them insisted that the soldiers watch a movie, “Act of Valor,” that starred active-duty SEALs.
Serious discipline issues emerged, according to the soldiers. Apparently bored by the routine of life on the small outpost, several of the SEALs began using their weapons for sport. One shot his pistol wildly at a kitten under the ammunition shed, the soldiers said; anyone at the small base, then full of people, could have been hit by a ricochet. Another pulled a handgun on a soldier in the base gym, apparently as a joke.
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“They were very sloppy, very boisterous: ‘We’re here to destroy everything,’ ” Specialist Walker said. In a situation with “a gun battle every day, that’s perfect,” he continued. But “we’re here to train people, assist, not there to gag ’em and bag ’em.”
Afghans described in interviews how the new group of Americans would shoot at the ground around farmers in wheat fields and almond groves near the base, or on the road to the market. A few times, they shot at trucks moving along a ridgeline. “They weren’t trying to kill anyone,” Mr. Gizabe, the Kalach elder, said. “They were toying with them, I think.”
The tenor of the meetings between the Americans and the elders changed, too, villagers said. The SEALs often shouted at the Afghans; when they disagreed, several elders recounted in interviews, the SEALs sometimes grabbed them by their shirts, lifted them off the ground and cocked their arms back as if preparing to hit them. “Each and every time we went to their base, we feared we would not come back out,” Mullah Muhammadzai said.
According to Specialist Walker, one Team 2 member grew annoyed with the repeated visits of the man whose child had died of leukemia. Specialist Walker found the father one day with two missing teeth, a scraped lip and a contusion that ran from under his left eye down to his jaw. The man, he said, told him that the American had punched him in the face.
Rounding Up Suspects
The explosion at the checkpoint in May 2012 kicked a cloud of dust high into the sky. Afghan militia members jumped on their motorcycles and rode down to investigate, soon returning to the base with their fallen comrade in the back of a truck.
Their search for suspects led them to a trio of itinerant scrap merchants and some villagers who had contact with them. The three men, Pashtuns who had been in town for little more than a week, eked out their living collecting junk: old car parts, empty oil drums, aluminum cans. One of the three, Assadullah, 25 — who, like many Afghans, goes by only one name — said they had risen before dawn to secure the cargo in their three-wheel motorized rickshaw and had been eating bread and drinking tea before the bomb exploded.
The police officers entered the room in a market stall where the men were staying and began bludgeoning them — Mr. Assadullah; Muhammad Hashem, about 24; and Faisal Rehmat, about 25 — with their rifle butts. “They just started hitting us,” Mr. Assadullah recalled in an interview, “on our shoulders, on our backs, everywhere.”
They bound the men’s hands with their traditional wool scarves and marched them to the outpost more than a kilometer away. “Along the road, they were beating us with stones and rifles,” Mr. Assadullah said. He added that he had seen other Afghan civilians at the base but that they had been kept separate during questioning.
The mistreatment was hardly unique for some of the police militias. From the outset of the program, the Americans running it found that some officers used their newfound power to engage in everything from petty theft and bullying to extortion rackets and killings.
An American military report released in December 2011 found that local police militias were illegally taxing villagers and committing assaults, yet also concluded that the militias were effective.
Afghan Local Police recruits ran through a smoke-filled ravine in 2012 during a training exercise in Kalach.CreditPetty Officer First Class Jacob Dillon/Department of Defense
By the day of the episode in Kalach, the Americans were getting ready to move to another region with higher security needs. Just 14 American servicemen remained: six Navy SEALs, four naval support personnel and four soldiers, plus an interpreter hired through a private contractor.
The soldiers provided security for the outpost while three of the SEALs helped question the prisoners, who were handcuffed with their arms behind them.
Sergeant Roschak and Specialist Walker stood on the roof of the meeting room, about 60 yards from where the detainees were being questioned. They and other witnesses, who had different vantage points, said there had been six to eight prisoners. The other two soldiers were on the roof of the SEALs’ barracks, about 135 yards away. “Enjoy the show,” one of the SEALs said, according to Sergeant Roschak’s statement to the N.C.I.S.
The three enlisted Team 2 members — David Swarts and Daniel D’Ambrosio, who were petty officers first class, and Xavier Silva, a petty officer second class — took the lead in interrogating the detainees, the soldiers told investigators. Their officer, a young lieutenant junior grade named Jason Webb, was mostly engaged elsewhere at the base, they said.
Mr. Assadullah said three Americans and an Afghan militia commander had interrogated him three times, for up to 10 minutes each time. The Americans grabbed him by the throat and kneed him in the stomach several times, he recalled, and said he would be freed if he told them who had set off the bomb. “But I didn’t know who did it,” Mr. Assadullah said.
The Afghan militiamen
in Kalach “were like
dogs, and the Americans
were the masters.” HAJJI AHMAD KHAN MUSLIM GIZABE, AN ELDER FROM KALACH
The soldiers told investigators that they had seen the three enlisted SEALs kick prisoners and fire handguns next to their heads; at one point, two of them forced a detainee’s legs apart so they could drop a large rock on his crotch. Three of the soldiers said that the SEALs had also dropped stones on other prisoners. One soldier recalled seeing a Team 2 member standing on a detainee’s head “maybe eight to 10 times.” In his sworn statement to investigators, he recounted, “When he would step on the guy’s head, I could see the detainee’s legs move a little.”
Specialist Walker told investigators that he had seen one of the SEALs “straddling the detainee over his upper torso area and pouring water on the detainee’s head.” Another soldier told N.C.I.S. agents that he had watched as an American poured water on a detainee who was lying on his back. He said that he had not seen the water going into the man’s mouth, but that it had appeared he was choking. The process, the soldier said, was repeated with four more prisoners, including one with a cloth in his mouth.
After about two hours, by Sergeant Roschak’s estimate, the SEALs told the soldiers to stand down, saying they had the situation under control. The soldiers complied — in part, several said, because they did not want to see any more.
While the SEALs and militiamen remained suspicious of some detainees, they let them all go by midafternoon. Before setting them free, the Americans took one of the junk merchants, Mr. Hashem, who was bloody and weak from the ordeal, and placed an AK-47 across his chest for a photograph, Mr. Assadullah said. He said he figured it was because Mr. Hashem had a long beard and looked more like a Taliban fighter than anyone else.
The villagers from Kalach were told to walk in one direction and the three scrap dealers in another, up a hillside. Mr. Hashem could barely move, Mr. Assadullah recalled. He was bleeding from a gash near the top of his skull, and his back was injured from repeated blows from rocks and rifle butts.
Mr. Hashem made it only a short distance before collapsing. Some militiamen rushed over and began hitting the three men again, Mr. Assadullah said. “ ‘Why can’t you climb? Why aren’t you climbing the mountain like we said?’ ” he recalled them asking. “I could not carry him because I was also beaten.”
After the militiamen left, Mr. Hashem showed his friends his abdomen, which was bloody and bruised. “I feel pain here, and I cannot walk,” he said, according to Mr. Assadullah.
A still image from a video of the funeral of Muhammad Hashem, who died after he was interrogated at the outpost in Kalach. He was about 24 and left behind a wife and newborn son.
Mr. Assadullah said that some Americans — it is not clear who — had come with water and a stretcher. He and Mr. Rehmat lifted the injured man onto it, then dragged the stretcher up the dirt road, Mr. Hashem moaning with each bump. Every time they stopped, Mr. Assadullah said, someone fired at them from the base.
Once out of sight, they paused to rest under a mulberry tree. Mr. Hashem became silent, Mr. Assadullah remembered. Soon after, he died.
The two surviving junk sellers found a truck driver willing to drive them all night back to Mr. Hashem’s home village, Shamakhel. In accordance with Islamic custom, Mr. Assadullah said, a funeral and burial were quickly arranged, drawing 200 people. Mr. Hashem left behind a wife and newborn son.
Report of a Cover-Up
The day after the detainee episode, the Taliban began threatening reprisal attacks over the radio, Sergeant Roschak told investigators. He inquired about the threats with the deputy commander of the Afghan Local Police, who responded, “The A.L.P. and SEAL guys beat that guy, and he died.”
Sergeant Roschak went to two of the SEALs. “ ‘Tell your guys not to talk to anyone about what happened outside of this camp,’ ” one of them responded, the sergeant said in his statement. “ ‘You know, no one needs to know we were involved. Just say an I.E.D. went off, and one A.L.P. guy died; we sent A.L.P. to check it out, but they didn’t find anything.’ ”
Worried, the soldiers kept quiet. “The next few days became very uncomfortable,” Sergeant Roschak told investigators. “It was difficult to get any type of privacy on the phone and on the computers.”
The Americans withdrew from the Kalach outpost two days later, on June 3, 2012, to a larger base at Tirin Kot, the provincial capital. In an email, Sergeant Roschak alerted his superior, writing, “My squad is being involved in a cover-up regarding the possible killing of detainees.”
Cmdr. Mike Hayes, the officer in charge of SEAL Team 2 and head of a Special Operations task force in southeastern Afghanistan, took quick action after learning of the claims. He called in the Naval Criminal Investigative Service and ordered the four accused SEALs’ guns taken away.
The soldiers were moved to a nearby base, where they were questioned by two N.C.I.S. investigators and gave closely matching sworn statements. The four Team 2 members asked for lawyers and declined to speak to investigators.
Brian December 19, 2015
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The N.C.I.S. agents reviewed the classified report that the SEALs had filed about the bomb at the checkpoint. It did not mention any detainees or that they had been mistreated.
Two Navy personnel from the outpost backed up the accounts of abuse in part, blaming the Afghan militia but also describing some mistreatment by the SEALs. A Seabee, a member of the Naval Construction Forces, told investigators that he had seen a Team 2 member firing his pistol near a detainee’s head. A Navy medic said he had seen a different member drag a prisoner by a scarf around his neck.
A Navy intelligence specialist said he had seen no abuse by American personnel, adding that only he and one of the SEALs had questioned the detainees. “At no point did I observe any U.S. personnel punch, kick, strike or act inappropriately towards any of the detained persons,” he told the investigators. The soldiers said in their statements to the N.C.I.S. that the intelligence specialist had left the scene as the abuse began.
Two of the SEALs who were present but not implicated in abuse said they had been focused on watching for security threats and had not seen their comrades mistreating detainees. One said he thought the shots fired might have been general warning shots.
The other told investigators that he had seen cases of water being brought to the interrogation area but did not know “if any of the detainees got any water.” He also described how one detainee kept lying on his side. “When I got to him, I shoved him with my foot to get his attention,” he said. “This happened five or six times in a row.”
The group’s interpreter first told investigators he had seen abuses by the Afghan police, but none by the SEALs. In a later sworn statement, he said he had seen one of the SEALs “put his foot on one of the prisoners’ stomach.” He had been reticent initially, he told the N.C.I.S. agents, because he “was afraid of getting hurt from the guys on the SEAL team.”
Photo
Cmdr. Mike Hayes, the officer in charge of SEAL Team 2, with a former Taliban leader in Oruzgan Province in 2012. Commander Hayes took quick action after learning of the allegations of abuse.
On June 26, 2012, Commander Hayes sent the accused men back to Little Creek, Va., where Team 2 is based, for his superiors to handle the disciplinary proceedings. Navy investigators traveled to the former base at Kalach on Aug. 13, more than two months after the episode, and interviewed four Afghans who were brought to them by the same local police unit accused of committing the abuses. Afghan officials said they had not investigated the suspected mistreatment of detainees by the police.
One of the Afghan militiamen corroborated the soldiers’ story. He said he had “observed the detainees being assaulted by A.L.P. and U.S. personnel,” according to the report, with the police using “stones and sticks” and the Americans “yelling, slapping and kicking.” He said he believed Mr. Hashem’s death had been caused by the Afghan abuse, which was harsher, but noted that he had only observed a few minutes of questioning.
A local shopkeeper, the only detainee among the witnesses gathered by the police, described being taken to the small outpost along with his nephew, a farmer and another merchant. He told investigators that the police militiamen, but not the Americans, had assaulted him and the other detainees with stones. “He observed the dead body after the assault,” the N.C.I.S. report said.
Two of the accused, Lieutenant Webb and Petty Officer Swarts, declined to comment when reached by phone. Another, Petty Officer D’Ambrosio, did not respond to messages seeking comment. Petty Officer Silva said only, “If you knew what it was like on the ground, it would look different.”
Captain’s Justice
In the wake of the Abu Ghraib torture scandal in Iraq, American military leaders recognized the ethical perils and strategic damage prisoner abuse could wreak and made its prevention a priority. The reports of beatings in Kalach immediately caught the attention of officials at the N.C.I.S. headquarters in Quantico, Va.
Susan C. Raser, then the head of criminal investigations for the organization, said she and other top officials there had been impressed by how consistent the Army witnesses were in describing the abuse they said had occurred. “I didn’t doubt it for a second,” she said in a recent interview.
In reviewing the report in late August 2012, Navy officials said, a lawyer at the Navy Judge Advocate General’s Corps regional office in Norfolk, Va., recommended that Captain Smith, who had just taken over as commander of the East Coast-based SEALs, charge the three enlisted men with assault and failure to report the abuse by the Afghans, and that he further investigate Lieutenant Webb.
Photo
Capt. Robert E. Smith, who said that conflicting accounts from witnesses had not given him enough confidence to conclude that the SEALs had participated in detainee abuse.CreditSpecialist First Class Tiffini M. Jones/U.S. Navy
But the lawyer, whom the Navy declined to identify, said Captain Smith could handle the matter through an internal disciplinary procedure known as a captain’s mast, typically used for infractions like fistfights among sailors or failure to appear for duty. The lawyer cited possible problems at trial without forensic evidence or Afghan victims available.
The military experts who reviewed the N.C.I.S. report contend that such serious abuse allegations warranted an Article 32 hearing to decide whether a court-martial was justified. Such hearings are public and allow prosecution and defense lawyers to present evidence and question witnesses, which the experts said was the best way to resolve conflicting statements between the Army and Navy witnesses.
Commander Hayes weighed in against the four SEALs, sending a letter to Captain Smith recommending that they be kicked out of the teams. But what turned out to be most influential was a videoconference among the Army witnesses and a half-dozen senior enlisted SEALs known as master chiefs, during which, the soldiers said, the chiefs badgered them to change their stories.
They were “implying that we were making it up” to get out of deployment, Sergeant Roschak said in an interview, adding that as a veteran on his fourth combat tour, he had felt insulted. Another soldier, then a sergeant, said the master chiefs had tried to “put words in my mouth.” Like a fourth soldier, he spoke only on the condition of anonymity because he did not want to talk publicly about a confidential investigation.
The chiefs focused on details like the exact number of rounds the SEALs had fired next to detainees’ heads and how many times they had dropped rocks on detainees’ chests, the soldiers said. “They were more concerned with the fact I couldn’t remember how many rounds were fired, instead of why they used a weapon at all while questioning the detainees,” Sergeant Roschak said.
Cmdr. Jason P. Salata, a spokesman for the SEAL command, said the master chiefs recommended that Captain Smith not bring assault charges, and he agreed. By the time the Team 2 members faced Captain Smith at the mast hearing on Nov. 5, 2012, the only charges they faced were related to the alleged failure to report abuse by the Afghan militiamen.
The captain’s mast procedure gives broad leeway to the presiding commander. “It really is like ‘The People’s Court’ with Judge Wapner or whatever, and the commander is the judge,” said Mr. Corn, the former Army lawyer. The hearing is closed, with no transcript provided, no impartial officer presiding, no prosecutor and no defense counsel.
“There’s no accountability,” Mr. Corn said. “There’s no transparency.”
Only two of the soldiers, Specialist Walker and Sergeant Roschak, were asked to join by videoconference; no explanation was offered for why the other two were not. The four accused SEALs were standing at attention off to the side. Captain Smith did not challenge the soldiers’ accounts, they said in recent interviews. He was polite, apologized for the tough questioning in the first teleconference and thanked them for coming forward.
Later that day, Captain Smith issued his ruling, dismissing the only charges. He opted to give the SEALs non-punitive “letters of instruction” — not even letters of reprimand — suggesting that they could improve their “leadership and decision making,” and reassigned them within the SEAL teams.
Photo
In his statement to The Times, the captain said the SEALs believed that “their actions de-escalated what was developing into a very dangerous situation.” He also said that the soldiers had not seen firsthand everything they described in their initial statements to investigators, and that they had “partially misinterpreted what they saw from a distance.”
He did not provide any examples. Other Navy officials could identify only one possible inconsistency, saying Sergeant Roschak had not seen the SEALs dropping rocks on detainees but had stated that they did so based on what his men had told him. But the three other soldiers swore to the N.C.I.S. that they had seen SEALs dropping the rocks.
Rachel E. VanLandingham, who was the United States Central Command’s chief legal adviser on detainee and interrogation issues from 2006 to 2010, called for the case to be reopened, as did several other military lawyers who reviewed the N.C.I.S. report.
“There’s more than sufficient information, evidence, data in the documents to more than warrant a new investigation,” Ms. VanLandingham said. “The decision to dispose of these charges via anything but criminal prosecution was grossly flawed.”
In recent interviews, all four soldiers said they stood by the accounts they had provided in their sworn statements to the N.C.I.S. “It’s hard to forget what happened when it’s the truth,” Specialist Walker said.
He and the other soldiers expressed surprise that none of the accused SEALs had faced any punishment. “If it was the other way around, me and my guys would be in trouble,” Sergeant Roschak said. “We’d be locked up.”
“If it was the other
way around, me and
my guys would be in
trouble. We’d be locked up.” STAFF SGT. DAVID ROSCHAK, THE ARMY SQUAD LEADER AT KALACH
In the Kalach area, the Taliban have extended their influence in the three years since the Americans departed. Recently, they even drove off the Afghan soldiers who had been using the former United States outpost, and destroyed much of it with the help of villagers.
Mr. Assadullah still walks with a slight hunch because of the wounds he sustained that spring day at the base. When interviewed in Kabul, the Afghan capital, he pulled up his shirt to show the deep scars on his back. “I feel pain in my whole body, and in the morning I cannot get up,” he said. “I don’t have money to treat this or to go to a doctor. I cannot pay for medicine.”
Abdul Aziz — the brother of Mr. Hashem, who was killed — traveled with Mr. Assadullah to Kabul and said that in the weeks and months after the episode, he had sent complaint letters to the American military commanders in Oruzgan, the national police and other officials. No one responded.
“I want the Afghan government to ask why they were beating men who were innocent,” Mr. Assadullah said. But “we can’t do anything to those American soldiers. They are very far away.”
Nicholas Kulish reported from California, Colorado, Georgia and Louisiana; Christopher Drew from Washington, Maryland and Virginia; and Matthew Rosenberg from Kabul, Afghanistan. Mark Mazzetti contributed reporting from Washington, Nooruddin Bakhshi from Kabul and Taimoor Shah from Kandahar, Afghanistan. Kitty Bennett and Susan C. Beachy contributed research.
By NICHOLAS KULISH, CHRISTOPHER DREW and MATTHEW ROSENBERGDEC. 17, 2015
The three Navy SEALs stomped on the bound Afghan detainees and dropped heavy stones on their chests, the witnesses recalled. They stood on the prisoners’ heads and poured bottles of water on some of their faces in what, to a pair of Army soldiers, appeared to be an improvised form of waterboarding.
A few hours earlier, shortly after dawn on May 31, 2012, a bomb had exploded at a checkpoint manned by an Afghan Local Police unit that the SEALs were training. Angered by the death of one of their comrades in the blast, the police militiamen had rounded up half a dozen or more suspects from a market in the village of Kalach and forced them to a nearby American outpost. Along the way, they beat them with rifle butts and car antennas.
A United States Army medic standing guard at the base, Specialist David Walker, had expected the men from SEAL Team 2 to put a stop to the abuse. Instead, he said, one of them “jump-kicked this guy kneeling on the ground.” Two others joined in, Specialist Walker and several other soldiers recounted, and along with the Afghan militiamen, they beat the detainees so badly that by dusk, one would die.
The four American soldiers working with the SEALs reported the episode, which has not previously been disclosed. In a Navy criminal investigation, two Navy support personnel said they had witnessed some abuse by the SEALs, as did a local police officer. Separately, an Afghan detained with the man who died provided a detailed account of mistreatment by American troops and Afghan militiamen in an interview with The New York Times.
The SEAL command, though, cleared the Team 2 members of wrongdoing in a closed disciplinary process that is typically used only for minor infractions, disregarding a Navy lawyer’s recommendation that the troops face assault charges and choosing not to seek a court-martial. Two of the SEALs and their lieutenant have since been promoted, even though their commander in Afghanistan recommended that they be forced out of the elite SEAL teams.
“It just comes down to what’s wrong and what’s right,” Specialist Walker said in a recent interview. “You can’t squint hard enough to make this gray.”
Even before the beatings, some of the SEALs had exhibited troubling behavior. According to the soldiers and Afghan villagers, they had amused themselves by tossing grenades over the walls of their base, firing high-caliber weapons at passing vehicles and even aiming slingshots at children, striking them in the face with hard candy.
Abuse of detainees is among the most serious offenses an American service member can commit. Several military justice experts, who reviewed a Naval Criminal Investigative Service report on the case at the request of The Times, said that it had been inappropriate for the SEAL command to treat such allegations as an internal disciplinary matter and that it should have referred the case for an Article 32 review, the equivalent of a grand jury, to consider a court-martial.
“It’s unfathomable,” said Donald J. Guter, a retired rear admiral and former judge advocate general of the Navy, in charge of all its lawyers. “It really does look like this was intended just to bury this.”
Assadullah, left, an Afghan who was interrogated in May 2012 by Navy SEALs and Afghan police militiamen, and Abdul Aziz, whose brother died after the questioning. The two were photographed in Kabul in August 2014. CreditAndrea Bruce for The New York Times
Navy officials defended the handling of the case, saying the SEAL captain who oversaw it had had full authority to decide it as he saw fit. The captain, Robert E. Smith, who was then in charge of SEALs based on the East Coast and is now a military assistant to the secretary of the Navy, said in a recent statement that the Team 2 members had denied abusing the detainees.
Captain Smith said that he had found inconsistencies in the soldiers’ accounts when they were questioned five months later, and that conflicting statements from the Army and Navy witnesses “did not give me enough confidence in their overall accuracy to hold the accused accountable for assaults or abuse, or warrant Article 32 proceedings.”
While he said it was “evident” that the Afghan militiamen had mistreated the detainees and that the SEALs had not reported it, he dismissed charges for failing to make such a report.
What happened in Kalach involved just one death in a conflict that has taken thousands of lives, but it had broader consequences. Instead of winning over the local population, the goal of the mission, the reported abuse further alienated villagers. It drove some previously cooperative Afghans to leave for Taliban-controlled areas, residents said.
“You can’t squint hard
enough to make this gray.” SPECIALIST DAVID WALKER, UNITED STATES ARMY
The SEALs’ failure to restrain the Afghan Local Police, who were supposed to protect villages but instead often terrorized them, helped erode confidence in the American and Afghan governments, whose forces have repeatedly been accused of abusing or killing civilians.
During the United States’ engagement in Afghanistan, now stretching into its 15th year, the American military has expanded the mandate for SEALs, sometimes assigning them roles for which they are neither suited nor trained.
Brushing away serious charges, military justice experts said, reflects a breakdown of accountability that feeds the perception that SEALs and other elite Special Operations units get undue leeway when it comes to discipline. In murky wars with unclear battle lines, they warned, that can corrode ethical clarity and undermine morale.
“What’s the message for the 10,000 guys that were in the same moment and said, ‘No, we’re not crossing this line’?” asked Geoffrey S. Corn, a former military lawyer who was the Army’s senior expert adviser on the law of war. “It diminishes the immense courage it takes to maintain that line between legitimate and illegitimate violence.”
This account of the events at Kalach, in southern Afghanistan’s Oruzgan Province, and how the Navy handled them is based on interviews with dozens of current and former military personnel. Reporters located victims and other villagers in Afghanistan and tracked down the four American soldiers who made the abuse allegations, who are now scattered across the United States. Most were initially reluctant to speak.
The Times also obtained the report prepared by the Naval Criminal Investigative Service, including sworn statements by Army, Navy and Afghan witnesses. All names were redacted in the document, acquired through the Freedom of Information Act, but several people familiar with the investigation confirmed them. The report was reviewed by four former military lawyers and a civilian military law expert.
In addition to describing misconduct by the SEALs, villagers complained that the Americans had empowered the local militia to act with impunity — taking goods from shops in the market, ransacking homes and delivering a rifle butt to the belly of those who resisted them.
The Afghan militiamen in Kalach “were like dogs, and the Americans were the masters,” said Hajji Ahmad Khan Muslim Gizabe, a prominent elder there. “The masters would follow behind the dogs, telling them what to do.”
Mr. Gizabe said that he had been among the Afghans who aided Hamid Karzai, the future president, in 2001 when he was flown into Oruzgan with American forces to foment resistance to the Taliban. But after what happened in 2012, he said, “I cannot support the Americans.”
Everything Changed
The small base at Kalach was just a speck in Afghanistan’s rugged terrain, dwarfed by the mountains behind it. The stone wall surrounding the outpost was barely chest-high, offering little protection from a Taliban attack. The objective was to get Americans close to the people they were training, instead of living behind high blast walls and shiny razor wire like most of the troops in the United States-led coalition in Afghanistan.
The outpost was set up by Green Berets, the Army Special Forces troops who recruited the Afghan Local Police. The militia program had become a crucial element of the American strategy to win over villagers and undercut the Taliban. The emphasis on counterinsurgency, as the strategy was known, aligned with the skills of the Green Berets, who were trained to wage guerrilla campaigns by working with irregular militias and supporting local communities.
The Navy’s nine SEAL teams, in contrast, typically conduct capture-and-kill missions and train militaries and counterterrorism forces in other countries. In a place like Kalach, “you need a combination of T.E. Lawrence, John Rambo and the Verizon guy,” said Scott Mann, a former Green Beret who helped design what were known as village stability operations in Afghanistan. “There’s a lot of the Special Ops community that would much rather shoot somebody in the face than do this kind of work.”
Kalach lies in a belt of territory in Oruzgan Province that separates Afghanistan’s central highlands — dominated by members of the Hazara ethnic group, Shiite Muslims who were brutally repressed under Taliban rule — from the southern heartland of the Pashtuns, the predominantly Sunni Muslim ethnic group from which the Taliban draws almost all its support. The groups live separately in Kalach, a village of several thousand people, and the volunteers for the militia were all Hazara, a problem the Green Berets were eager to fix.
“The villagers asked me to talk to the Americans,” said Hajji Muhammadzai, a Pashtun mullah. The Green Berets promised to build schools, roads, bridges and a clinic in return for help recruiting local police officers, Mullah Muhammadzai recalled. Even though the Green Berets found no takers among the Pashtuns, the soldiers addressed the elders with respect, drank tea with them and tried to sway them through persuasion rather than threats, he said in an interview.
An infantry squad that included Specialist Walker, the Army medic, arrived at the outpost shortly before Christmas in 2011. With broad shoulders and blond hair — his nickname was Thor — Specialist Walker could not have looked more foreign to Afghans. But he forged a relationship with the father of a boy whom he was treating for leukemia, and the man continued to drop by the clinic after his son’s death, sometimes passing on information such as when Taliban spotters were watching the outpost. The soldiers also got to know the militiamen, teaching them how to use their weapons and repel the Taliban. There were shared feasts, even a snowball fight.
But the Green Berets rotated out in early 2012 and were replaced by a detachment from SEAL Team 2, whose men had been deployed to Iraq and Afghanistan over the years for operations targeting militants. Other members of the team were scattered across villages beyond Kalach.
Specialist David Walker, an Army medic, treating a villager in Kalach.
“We had to fill so many emerging requirements with units that weren’t necessarily as prepared as they could have been,” said Mr. Mann, the former Green Beret. “There’s a whole mind-set and training curriculum that goes with Green Berets that’s radically different from Navy SEALs.”
The change in tone was soon apparent. Staff Sgt. David Roschak, the Army squad leader at Kalach, said the new arrivals assumed “anyone near the base was, or linked to, the Taliban.” Some of the Team 2 members saw their job as killing enemies, not making friends, he and other soldiers said in interviews.
Several seemed absorbed with the SEALs’ growing celebrity, the soldiers said: They talked about the SEAL Team 6 raid that killed Osama bin Laden, and debated whether to write books like “Lone Survivor,” the account of a SEAL who survived a disastrous mission in 2005. One night, some of them insisted that the soldiers watch a movie, “Act of Valor,” that starred active-duty SEALs.
Serious discipline issues emerged, according to the soldiers. Apparently bored by the routine of life on the small outpost, several of the SEALs began using their weapons for sport. One shot his pistol wildly at a kitten under the ammunition shed, the soldiers said; anyone at the small base, then full of people, could have been hit by a ricochet. Another pulled a handgun on a soldier in the base gym, apparently as a joke.
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“They were very sloppy, very boisterous: ‘We’re here to destroy everything,’ ” Specialist Walker said. In a situation with “a gun battle every day, that’s perfect,” he continued. But “we’re here to train people, assist, not there to gag ’em and bag ’em.”
Afghans described in interviews how the new group of Americans would shoot at the ground around farmers in wheat fields and almond groves near the base, or on the road to the market. A few times, they shot at trucks moving along a ridgeline. “They weren’t trying to kill anyone,” Mr. Gizabe, the Kalach elder, said. “They were toying with them, I think.”
The tenor of the meetings between the Americans and the elders changed, too, villagers said. The SEALs often shouted at the Afghans; when they disagreed, several elders recounted in interviews, the SEALs sometimes grabbed them by their shirts, lifted them off the ground and cocked their arms back as if preparing to hit them. “Each and every time we went to their base, we feared we would not come back out,” Mullah Muhammadzai said.
According to Specialist Walker, one Team 2 member grew annoyed with the repeated visits of the man whose child had died of leukemia. Specialist Walker found the father one day with two missing teeth, a scraped lip and a contusion that ran from under his left eye down to his jaw. The man, he said, told him that the American had punched him in the face.
Rounding Up Suspects
The explosion at the checkpoint in May 2012 kicked a cloud of dust high into the sky. Afghan militia members jumped on their motorcycles and rode down to investigate, soon returning to the base with their fallen comrade in the back of a truck.
Their search for suspects led them to a trio of itinerant scrap merchants and some villagers who had contact with them. The three men, Pashtuns who had been in town for little more than a week, eked out their living collecting junk: old car parts, empty oil drums, aluminum cans. One of the three, Assadullah, 25 — who, like many Afghans, goes by only one name — said they had risen before dawn to secure the cargo in their three-wheel motorized rickshaw and had been eating bread and drinking tea before the bomb exploded.
The police officers entered the room in a market stall where the men were staying and began bludgeoning them — Mr. Assadullah; Muhammad Hashem, about 24; and Faisal Rehmat, about 25 — with their rifle butts. “They just started hitting us,” Mr. Assadullah recalled in an interview, “on our shoulders, on our backs, everywhere.”
They bound the men’s hands with their traditional wool scarves and marched them to the outpost more than a kilometer away. “Along the road, they were beating us with stones and rifles,” Mr. Assadullah said. He added that he had seen other Afghan civilians at the base but that they had been kept separate during questioning.
The mistreatment was hardly unique for some of the police militias. From the outset of the program, the Americans running it found that some officers used their newfound power to engage in everything from petty theft and bullying to extortion rackets and killings.
An American military report released in December 2011 found that local police militias were illegally taxing villagers and committing assaults, yet also concluded that the militias were effective.
Afghan Local Police recruits ran through a smoke-filled ravine in 2012 during a training exercise in Kalach.CreditPetty Officer First Class Jacob Dillon/Department of Defense
By the day of the episode in Kalach, the Americans were getting ready to move to another region with higher security needs. Just 14 American servicemen remained: six Navy SEALs, four naval support personnel and four soldiers, plus an interpreter hired through a private contractor.
The soldiers provided security for the outpost while three of the SEALs helped question the prisoners, who were handcuffed with their arms behind them.
Sergeant Roschak and Specialist Walker stood on the roof of the meeting room, about 60 yards from where the detainees were being questioned. They and other witnesses, who had different vantage points, said there had been six to eight prisoners. The other two soldiers were on the roof of the SEALs’ barracks, about 135 yards away. “Enjoy the show,” one of the SEALs said, according to Sergeant Roschak’s statement to the N.C.I.S.
The three enlisted Team 2 members — David Swarts and Daniel D’Ambrosio, who were petty officers first class, and Xavier Silva, a petty officer second class — took the lead in interrogating the detainees, the soldiers told investigators. Their officer, a young lieutenant junior grade named Jason Webb, was mostly engaged elsewhere at the base, they said.
Mr. Assadullah said three Americans and an Afghan militia commander had interrogated him three times, for up to 10 minutes each time. The Americans grabbed him by the throat and kneed him in the stomach several times, he recalled, and said he would be freed if he told them who had set off the bomb. “But I didn’t know who did it,” Mr. Assadullah said.
The Afghan militiamen
in Kalach “were like
dogs, and the Americans
were the masters.” HAJJI AHMAD KHAN MUSLIM GIZABE, AN ELDER FROM KALACH
The soldiers told investigators that they had seen the three enlisted SEALs kick prisoners and fire handguns next to their heads; at one point, two of them forced a detainee’s legs apart so they could drop a large rock on his crotch. Three of the soldiers said that the SEALs had also dropped stones on other prisoners. One soldier recalled seeing a Team 2 member standing on a detainee’s head “maybe eight to 10 times.” In his sworn statement to investigators, he recounted, “When he would step on the guy’s head, I could see the detainee’s legs move a little.”
Specialist Walker told investigators that he had seen one of the SEALs “straddling the detainee over his upper torso area and pouring water on the detainee’s head.” Another soldier told N.C.I.S. agents that he had watched as an American poured water on a detainee who was lying on his back. He said that he had not seen the water going into the man’s mouth, but that it had appeared he was choking. The process, the soldier said, was repeated with four more prisoners, including one with a cloth in his mouth.
After about two hours, by Sergeant Roschak’s estimate, the SEALs told the soldiers to stand down, saying they had the situation under control. The soldiers complied — in part, several said, because they did not want to see any more.
While the SEALs and militiamen remained suspicious of some detainees, they let them all go by midafternoon. Before setting them free, the Americans took one of the junk merchants, Mr. Hashem, who was bloody and weak from the ordeal, and placed an AK-47 across his chest for a photograph, Mr. Assadullah said. He said he figured it was because Mr. Hashem had a long beard and looked more like a Taliban fighter than anyone else.
The villagers from Kalach were told to walk in one direction and the three scrap dealers in another, up a hillside. Mr. Hashem could barely move, Mr. Assadullah recalled. He was bleeding from a gash near the top of his skull, and his back was injured from repeated blows from rocks and rifle butts.
Mr. Hashem made it only a short distance before collapsing. Some militiamen rushed over and began hitting the three men again, Mr. Assadullah said. “ ‘Why can’t you climb? Why aren’t you climbing the mountain like we said?’ ” he recalled them asking. “I could not carry him because I was also beaten.”
After the militiamen left, Mr. Hashem showed his friends his abdomen, which was bloody and bruised. “I feel pain here, and I cannot walk,” he said, according to Mr. Assadullah.
A still image from a video of the funeral of Muhammad Hashem, who died after he was interrogated at the outpost in Kalach. He was about 24 and left behind a wife and newborn son.
Mr. Assadullah said that some Americans — it is not clear who — had come with water and a stretcher. He and Mr. Rehmat lifted the injured man onto it, then dragged the stretcher up the dirt road, Mr. Hashem moaning with each bump. Every time they stopped, Mr. Assadullah said, someone fired at them from the base.
Once out of sight, they paused to rest under a mulberry tree. Mr. Hashem became silent, Mr. Assadullah remembered. Soon after, he died.
The two surviving junk sellers found a truck driver willing to drive them all night back to Mr. Hashem’s home village, Shamakhel. In accordance with Islamic custom, Mr. Assadullah said, a funeral and burial were quickly arranged, drawing 200 people. Mr. Hashem left behind a wife and newborn son.
Report of a Cover-Up
The day after the detainee episode, the Taliban began threatening reprisal attacks over the radio, Sergeant Roschak told investigators. He inquired about the threats with the deputy commander of the Afghan Local Police, who responded, “The A.L.P. and SEAL guys beat that guy, and he died.”
Sergeant Roschak went to two of the SEALs. “ ‘Tell your guys not to talk to anyone about what happened outside of this camp,’ ” one of them responded, the sergeant said in his statement. “ ‘You know, no one needs to know we were involved. Just say an I.E.D. went off, and one A.L.P. guy died; we sent A.L.P. to check it out, but they didn’t find anything.’ ”
Worried, the soldiers kept quiet. “The next few days became very uncomfortable,” Sergeant Roschak told investigators. “It was difficult to get any type of privacy on the phone and on the computers.”
The Americans withdrew from the Kalach outpost two days later, on June 3, 2012, to a larger base at Tirin Kot, the provincial capital. In an email, Sergeant Roschak alerted his superior, writing, “My squad is being involved in a cover-up regarding the possible killing of detainees.”
Cmdr. Mike Hayes, the officer in charge of SEAL Team 2 and head of a Special Operations task force in southeastern Afghanistan, took quick action after learning of the claims. He called in the Naval Criminal Investigative Service and ordered the four accused SEALs’ guns taken away.
The soldiers were moved to a nearby base, where they were questioned by two N.C.I.S. investigators and gave closely matching sworn statements. The four Team 2 members asked for lawyers and declined to speak to investigators.
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The N.C.I.S. agents reviewed the classified report that the SEALs had filed about the bomb at the checkpoint. It did not mention any detainees or that they had been mistreated.
Two Navy personnel from the outpost backed up the accounts of abuse in part, blaming the Afghan militia but also describing some mistreatment by the SEALs. A Seabee, a member of the Naval Construction Forces, told investigators that he had seen a Team 2 member firing his pistol near a detainee’s head. A Navy medic said he had seen a different member drag a prisoner by a scarf around his neck.
A Navy intelligence specialist said he had seen no abuse by American personnel, adding that only he and one of the SEALs had questioned the detainees. “At no point did I observe any U.S. personnel punch, kick, strike or act inappropriately towards any of the detained persons,” he told the investigators. The soldiers said in their statements to the N.C.I.S. that the intelligence specialist had left the scene as the abuse began.
Two of the SEALs who were present but not implicated in abuse said they had been focused on watching for security threats and had not seen their comrades mistreating detainees. One said he thought the shots fired might have been general warning shots.
The other told investigators that he had seen cases of water being brought to the interrogation area but did not know “if any of the detainees got any water.” He also described how one detainee kept lying on his side. “When I got to him, I shoved him with my foot to get his attention,” he said. “This happened five or six times in a row.”
The group’s interpreter first told investigators he had seen abuses by the Afghan police, but none by the SEALs. In a later sworn statement, he said he had seen one of the SEALs “put his foot on one of the prisoners’ stomach.” He had been reticent initially, he told the N.C.I.S. agents, because he “was afraid of getting hurt from the guys on the SEAL team.”
Photo
Cmdr. Mike Hayes, the officer in charge of SEAL Team 2, with a former Taliban leader in Oruzgan Province in 2012. Commander Hayes took quick action after learning of the allegations of abuse.
On June 26, 2012, Commander Hayes sent the accused men back to Little Creek, Va., where Team 2 is based, for his superiors to handle the disciplinary proceedings. Navy investigators traveled to the former base at Kalach on Aug. 13, more than two months after the episode, and interviewed four Afghans who were brought to them by the same local police unit accused of committing the abuses. Afghan officials said they had not investigated the suspected mistreatment of detainees by the police.
One of the Afghan militiamen corroborated the soldiers’ story. He said he had “observed the detainees being assaulted by A.L.P. and U.S. personnel,” according to the report, with the police using “stones and sticks” and the Americans “yelling, slapping and kicking.” He said he believed Mr. Hashem’s death had been caused by the Afghan abuse, which was harsher, but noted that he had only observed a few minutes of questioning.
A local shopkeeper, the only detainee among the witnesses gathered by the police, described being taken to the small outpost along with his nephew, a farmer and another merchant. He told investigators that the police militiamen, but not the Americans, had assaulted him and the other detainees with stones. “He observed the dead body after the assault,” the N.C.I.S. report said.
Two of the accused, Lieutenant Webb and Petty Officer Swarts, declined to comment when reached by phone. Another, Petty Officer D’Ambrosio, did not respond to messages seeking comment. Petty Officer Silva said only, “If you knew what it was like on the ground, it would look different.”
Captain’s Justice
In the wake of the Abu Ghraib torture scandal in Iraq, American military leaders recognized the ethical perils and strategic damage prisoner abuse could wreak and made its prevention a priority. The reports of beatings in Kalach immediately caught the attention of officials at the N.C.I.S. headquarters in Quantico, Va.
Susan C. Raser, then the head of criminal investigations for the organization, said she and other top officials there had been impressed by how consistent the Army witnesses were in describing the abuse they said had occurred. “I didn’t doubt it for a second,” she said in a recent interview.
In reviewing the report in late August 2012, Navy officials said, a lawyer at the Navy Judge Advocate General’s Corps regional office in Norfolk, Va., recommended that Captain Smith, who had just taken over as commander of the East Coast-based SEALs, charge the three enlisted men with assault and failure to report the abuse by the Afghans, and that he further investigate Lieutenant Webb.
Photo
Capt. Robert E. Smith, who said that conflicting accounts from witnesses had not given him enough confidence to conclude that the SEALs had participated in detainee abuse.CreditSpecialist First Class Tiffini M. Jones/U.S. Navy
But the lawyer, whom the Navy declined to identify, said Captain Smith could handle the matter through an internal disciplinary procedure known as a captain’s mast, typically used for infractions like fistfights among sailors or failure to appear for duty. The lawyer cited possible problems at trial without forensic evidence or Afghan victims available.
The military experts who reviewed the N.C.I.S. report contend that such serious abuse allegations warranted an Article 32 hearing to decide whether a court-martial was justified. Such hearings are public and allow prosecution and defense lawyers to present evidence and question witnesses, which the experts said was the best way to resolve conflicting statements between the Army and Navy witnesses.
Commander Hayes weighed in against the four SEALs, sending a letter to Captain Smith recommending that they be kicked out of the teams. But what turned out to be most influential was a videoconference among the Army witnesses and a half-dozen senior enlisted SEALs known as master chiefs, during which, the soldiers said, the chiefs badgered them to change their stories.
They were “implying that we were making it up” to get out of deployment, Sergeant Roschak said in an interview, adding that as a veteran on his fourth combat tour, he had felt insulted. Another soldier, then a sergeant, said the master chiefs had tried to “put words in my mouth.” Like a fourth soldier, he spoke only on the condition of anonymity because he did not want to talk publicly about a confidential investigation.
The chiefs focused on details like the exact number of rounds the SEALs had fired next to detainees’ heads and how many times they had dropped rocks on detainees’ chests, the soldiers said. “They were more concerned with the fact I couldn’t remember how many rounds were fired, instead of why they used a weapon at all while questioning the detainees,” Sergeant Roschak said.
Cmdr. Jason P. Salata, a spokesman for the SEAL command, said the master chiefs recommended that Captain Smith not bring assault charges, and he agreed. By the time the Team 2 members faced Captain Smith at the mast hearing on Nov. 5, 2012, the only charges they faced were related to the alleged failure to report abuse by the Afghan militiamen.
The captain’s mast procedure gives broad leeway to the presiding commander. “It really is like ‘The People’s Court’ with Judge Wapner or whatever, and the commander is the judge,” said Mr. Corn, the former Army lawyer. The hearing is closed, with no transcript provided, no impartial officer presiding, no prosecutor and no defense counsel.
“There’s no accountability,” Mr. Corn said. “There’s no transparency.”
Only two of the soldiers, Specialist Walker and Sergeant Roschak, were asked to join by videoconference; no explanation was offered for why the other two were not. The four accused SEALs were standing at attention off to the side. Captain Smith did not challenge the soldiers’ accounts, they said in recent interviews. He was polite, apologized for the tough questioning in the first teleconference and thanked them for coming forward.
Later that day, Captain Smith issued his ruling, dismissing the only charges. He opted to give the SEALs non-punitive “letters of instruction” — not even letters of reprimand — suggesting that they could improve their “leadership and decision making,” and reassigned them within the SEAL teams.
Photo
In his statement to The Times, the captain said the SEALs believed that “their actions de-escalated what was developing into a very dangerous situation.” He also said that the soldiers had not seen firsthand everything they described in their initial statements to investigators, and that they had “partially misinterpreted what they saw from a distance.”
He did not provide any examples. Other Navy officials could identify only one possible inconsistency, saying Sergeant Roschak had not seen the SEALs dropping rocks on detainees but had stated that they did so based on what his men had told him. But the three other soldiers swore to the N.C.I.S. that they had seen SEALs dropping the rocks.
Rachel E. VanLandingham, who was the United States Central Command’s chief legal adviser on detainee and interrogation issues from 2006 to 2010, called for the case to be reopened, as did several other military lawyers who reviewed the N.C.I.S. report.
“There’s more than sufficient information, evidence, data in the documents to more than warrant a new investigation,” Ms. VanLandingham said. “The decision to dispose of these charges via anything but criminal prosecution was grossly flawed.”
In recent interviews, all four soldiers said they stood by the accounts they had provided in their sworn statements to the N.C.I.S. “It’s hard to forget what happened when it’s the truth,” Specialist Walker said.
He and the other soldiers expressed surprise that none of the accused SEALs had faced any punishment. “If it was the other way around, me and my guys would be in trouble,” Sergeant Roschak said. “We’d be locked up.”
“If it was the other
way around, me and
my guys would be in
trouble. We’d be locked up.” STAFF SGT. DAVID ROSCHAK, THE ARMY SQUAD LEADER AT KALACH
In the Kalach area, the Taliban have extended their influence in the three years since the Americans departed. Recently, they even drove off the Afghan soldiers who had been using the former United States outpost, and destroyed much of it with the help of villagers.
Mr. Assadullah still walks with a slight hunch because of the wounds he sustained that spring day at the base. When interviewed in Kabul, the Afghan capital, he pulled up his shirt to show the deep scars on his back. “I feel pain in my whole body, and in the morning I cannot get up,” he said. “I don’t have money to treat this or to go to a doctor. I cannot pay for medicine.”
Abdul Aziz — the brother of Mr. Hashem, who was killed — traveled with Mr. Assadullah to Kabul and said that in the weeks and months after the episode, he had sent complaint letters to the American military commanders in Oruzgan, the national police and other officials. No one responded.
“I want the Afghan government to ask why they were beating men who were innocent,” Mr. Assadullah said. But “we can’t do anything to those American soldiers. They are very far away.”
Nicholas Kulish reported from California, Colorado, Georgia and Louisiana; Christopher Drew from Washington, Maryland and Virginia; and Matthew Rosenberg from Kabul, Afghanistan. Mark Mazzetti contributed reporting from Washington, Nooruddin Bakhshi from Kabul and Taimoor Shah from Kandahar, Afghanistan. Kitty Bennett and Susan C. Beachy contributed research.
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