May 6, 2007 — Marine Times

Lawyers: Evidence backs MarSOC's claims

By C. Mark Brinkley and Trista Talton

JACKSONVILLE, N.C. - Photos of shot-up military vehicles and a classified Army intelligence report confirm that a group of spec-ops Marines was attacked with small-arms fire during a March 4 ambush in Afghanistan, according to the Marines' attorneys.

Those claims directly contradict public statements made by the top special operations officer in the region, who said the Afghans who were killed at the site of the ambush were innocent, and that there was no evidence that members of the Marine special operations company took small-arms fire from Afghans after the Marines were ambushed by a car bomb.

Marine Corps Times interviewed five of the seven defense attorneys believed to be representing Marines in this case.

"I've looked at the photographs of the [Marine] vehicles, and there are bullet holes," said Mark Waple, an attorney representing the unit's former company commander, a major who was relieved of duty April 3. "There are multiple impact sites on the vehicle. The photographs confirm what [my client] is telling me."

Waple said he has studied pictures of at least two different vehicles in the convoy, which was struck by a car bomb that began an incident that set off an international stir after at least 10 Afghan civilians were killed in the fighting.

"We know they took fire because there are holes in the vehicles," said Charles Gittins, an attorney for a sergeant wounded during the attack. "They were on the run from a complex, planned attack."

Victor Kelley, an attorney hired by a gunnery sergeant in the company, said he has "solid" information that the platoon took small-arms fire. He declined to discuss details of that information.

"I think, once the entire story comes out, it will be incontrovertible that they took small-arms fire," Kelley said. "I'm certain of that."

The lawyers' comments provide the first glimpse into the incident from the Marines' perspective. They not only contradict statements made by Army Maj. Gen. Frank Kearney, head of U.S. Special Operations Command-Central Command, but also run counter to a report by the Afghanistan Independent Human Rights Commission, in which witnesses were interviewed who said the Marines used "excessive force" in responding to the car bomb.

In April, one month after the incident, the company commander and senior enlisted adviser were relieved of their duties and sent home to Camp Lejeune, N.C., along with six other spec-ops Marines involved in the incident. The remainder of the 120-man Marine special operations company - the first unit of its kind to deploy for real-world operations - was expelled from the country by Kearney, and redeployed to an unspecified assignment. The company deployed with the 26th Marine Expeditionary Unit in January and entered Afghanistan in February.

In the April 8 edition of The Washington Post, Kearney said, "We found ... no brass that we can confirm that small-arms fire came at [the Marines]. We have testimony from Marines that is in conflict with unanimous testimony from civilians at the sites."

Kearney added that his investigating officer "believes those [Afghan civilians] were innocent. ... We were unable to find evidence that those were fighters." He made no mention of any Army intelligence report from military police arriving on the scene after the ambush.

Kearney's spokesman, Army Lt. Col. Louis Leto, wrote in an e-mail May 3 that Kearney "has expressed the facts of the investigation" and that the general "has nothing new to add."

He said the command can't comment further, citing an ongoing investigation by the Naval Criminal Investigative Service, which was referred by Kearney.

The attorneys provided a strikingly different story than Kearney's version of events.

Gittins said his client, a sergeant whose name is being withheld because no charges have been filed in the case, was wounded when a car bomb slammed into the convoy, causing the Marine unit to take defensive action. Gittins said the small-arms fire that followed the bombing forced the convoy to make a run for it.

The path was blocked by other traffic, Gittins said, causing the Marines to "escalate" the situation by "firing warning shots." He did not comment on whether any of those shots might have killed or wounded bystanders, but said that the moves were "within the rules of engagement."

Gittins said an intelligence report from the Army's 66th Military Police Company, members of which allegedly rolled into the firefight area after the Marines had left, observed the "headless, armless, legless torso" of a suicide bomber, as well as evidence of a complex ambush. He declined to provide a copy of that report.

Knox Nunnally, who confirmed he's been hired by one of the spec-ops Marines but declined to reveal his client's rank, said he believes evidence will show that an Army unit did go to the site of the ambush sometime after the attack.

"I believe that the evidence in this matter will confirm that there was a firefight," he said.

And the evidence will show that the Marines were fired at as they left the site of the car bomb attack, he said.

He said the area where the attack occurred - Nangarhar province - is "rapidly developing into a hotbed of al-Qaida activity." He pointed to the April 29 raid by U.S.-led coalition and Afghan forces on a suspected car bomb cell in Nangarhar, near where the Marines' convoy was attacked. Six people were killed in the raid, sparking a reportedly large protest.

Nunnally said al-Qaida in that raid are "likely from the same group that attacked the Marines March 4."

One Marine, Gittins' sergeant, was wounded in the attack.

Gittins provided a copy of his client's personnel report, which was written and approved by two officers in the Marine's command March 31.

"While conducting a combat reconnaissance patrol on March 4th, [the sergeant's] vehicle was struck by a suicide vehicle-borne [improvised explosive device] and subsequently engaged by a direct-fire enemy ambush from multiple directions," the report said. "After being knocked down by the blast of the SVBIED, [the sergeant] resumed his duties as his vehicle's gunner and repeatedly exposed himself to enemy fire in order to provide suppressive machine gun fire on the [enemy] forces and allow the patrol to break contact with no further casualties."

A separate report released by the Afghanistan Independent Human Rights Commission concluded that the Marines fired on civilians traveling by foot or in vehicles for 10 miles following the ambush. Victims and their families, eyewitnesses and local community leaders, as well as district authorities, local hospitals and clinics and representatives of the Afghan National Police, were interviewed by the commission, but the report does not include the Marines' accounts of that day.

However, the report does imply that the Marines might have been attacked in the manner Gittins described.

"There is some limited physical evidence available suggesting that a complex ambush really took place at the site of the incident, but this evidence is far from conclusive," according to the commission's report.

"I think they fired to warn vehicles to move," Gittins said. "I don't think the indiscriminate shooting allegation is true. These guys are all force reconnaissance, most of whom had a tour in Iraq before."

Phillip Stackhouse, a civilian attorney representing a corporal with the unit, offered a similar accounting. "After they left the engagement area, my client didn't shoot his weapon," Stackhouse said.

On April 27, The New York Times reported that "Marine and civilian lawyers involved in the case have been told to expect charges against five to seven Marines involved in the shootings, possibly including one officer," according to an unnamed Marine official.

"That's a lie," Gittins said, adding that the Times' report was the first he had heard about any pending charges. "And the Marine Corps knows how to reach me."

Stackhouse and Waple also said they had not been contacted by the Marine Corps about possible charges.

"I haven't been told anything yet," Stackhouse said. "Nobody's contacted us and told us anything was coming anytime soon. I still find comments like that unfortunate when the investigation isn't completed yet."

Waple said he'd spoken to Marine officials May 2. "There have been no charges preferred in this matter at all," he said.

In an interview May 3, Kelley, the attorney for the gunny, said he had not been informed of possible charges against his client.

Officials with the unit's parent command, Marine Corps Forces Special Operations Command, have remained mostly quiet about the incident, deferring comment on the specifics of the case until the NCIS investigation is complete.

"We do not discuss the details of ongoing investigations because doing so could interfere with the investigative process," said Maj. Cliff Gilmore, a MarSOC spokesman. "We are absolutely committed to ensuring our Marines are treated justly and to preserving the presumption of their innocence."

In the meantime, Gittins said he wants his client's Purple Heart medal for injuries he sustained in the initial bombing to be awarded. "They claim they are holding it until he is cleared of all misconduct, which is bull----," Gittins said. "He is entitled to it; it's not like there's a question about it."

Gilmore said MarSOC commander Maj. Gen. Dennis Hejlik is the awarding authority for any possible medals in this case and will authorize awards in accordance with the law and Defense Department directives.

"Receipt of a Purple Heart award requires that a service member's actions following a distinguishing act are honorable," Gilmore said. "Maj. Gen. Hejlik will not make a final decision regarding possible presentation of personal awards in this situation until the investigation is complete."