Army finds probable cause in Afghans’ torture, death

Army criminal investigators have concluded there is probable cause to believe that two soldiers committed assault in the handling of detainees at a Special Forces firebase in Afghanistan in March 2003.

The case stems from reports of torture and the death of a detainee that had been concealed from military authorities until disclosed by The Times in 2004.

The military investigators, who work for the Army’s Criminal Investigation Command, also found probable cause of dereliction of duty by one of the two soldiers. The incident was never reported up the chain of command, according to top Special Forces officials, and any attempt to cover up wrongdoing can constitute dereliction under Army criminal codes.

Christopher P. Grey, chief of public affairs for CID, said Thursday that he could not release names or details of the findings because the soldiers have not been formally charged. Rather, the findings have been forwarded to the U.S. Army Special Forces Command, based at Ft. Bragg, N.C., for decisions on whether the soldiers should be charged and prosecuted.

Maj. James O. Gregory, a spokesman for the Special Forces command, said a statement would be issued soon, but he declined to comment further.

Grey did not specify the gravity of the assault findings. Simple assault and dereliction of duty can be considered minor offenses by superior officers, according to specialists in military justice.

Grey also would not say whether the criminal findings relate directly to the death of an 18-year-old Afghan army recruit, Jamal Naseer, who died at the Special Forces compound in Gardez after being interrogated there by U.S. troops. A number of other Afghans who were taken prisoner along with Naseer have said they were severely beaten and otherwise abused while being held at the base by soldiers with the 20th Special Forces Group, an Alabama-based National Guard unit.

Concurrently, the Army investigators determined there was not probable cause to charge anyone in the separate case of an Afghan detainee who died in the custody of the same 20th Special Forces Group team, known as ODA 2021. That detainee, an unarmed woodcutter named Wakil Mohammed, was shot in the face by a soldier during a search of the village of Wazi after a fierce firefight, also in March 2003, according to Afghan witnesses interviewed by The Times.

Grey, the CID spokesman, said in an e-mailed statement that “the case involving Wazi was unfounded.” That term is used, he said, “when there is not probable cause to believe that the offense occurred ... considering the quality and quantity of all available evidence.”

In March 2005, however, CID announced it had found probable cause in the Wazi case to recommend charges of murder against one member of the 20th Special Forces Group and of dereliction of duty against another soldier for not reporting Mohammed’s death. Those referrals, known as “listings,” have since been rescinded, but Grey declined to say what had changed.

Details of Mohammed’s death were revealed in a two-part series about ODA 2021 that was published in The Times in September.

Grey said both investigations were closed by CID on Jan. 11. “If any new credible information becomes available, CID stands ready to reopen the investigation,” he said.

The deaths of Naseer and Mohammed were never reported to higher authorities, according to both the battalion and group commanders who oversaw the 20th Group’s operations in Afghanistan. That distinguished them from scores of other questionable deaths of detainees in U.S. custody in both Afghanistan and Iraq.

The Times account last fall cited numerous Afghan witnesses who saw Naseer immediately before and after his death and said he appeared to have been badly beaten. It quoted one Special Forces member as saying the team held a meeting after the detainee died to coordinate stories should an investigation arise.

“Everybody on the team had knowledge of it,” the soldier said, speaking on condition of anonymity. “You just don’t talk about that stuff in the Special Forces community. What happens downrange stays downrange.”

Other detainees arrested with Naseer also showed signs of severe beating that were noted in local doctors’ reports after their release from the base. One of those detainees was a man with one leg.

The commander of the Special Forces team at the time of both deaths was Chief Warrant Officer Kenneth C. Waller, a full-time National Guardsman who continues to work at 20th Group headquarters in Birmingham. Grey would not say whether Waller, who is now 36, is among those implicated in the CID investigation.

Officials with 20th Group said today that Waller, despite the ongoing case involving his unit, is currently deployed to East Africa, as is Col. Leonard Kiser, the 20th Group’s current commanding officer. Neither was available for comment.

While the Special Forces team in Gardez consisted mostly of Alabama National Guardsmen, it also included several members from other groups.

One of them, Sgt. 1st Class Michael E. MacMillan, an intelligence analyst with the 7th Special Forces Group at Ft. Bragg, was depicted by other team members as being heavily involved in the interrogation of detainees at the base.

kevin.sack@latimes.com

Pyes is a freelance investigative journalist who reported for The Times and the Washington- based Crimes of War Project.