It felt like an interrogation. The room was small, poorly ventilated and bare: only a desk, two chairs and endless questions. One by one, all 30 members of the patrol cycled through to meet with the investigator.
Two days prior, on March 4, 2007, the Marines were in a fight for their lives along a treacherous stretch of highway in eastern Afghanistan's Nangarhar province. Now, a senior Air Force officer sent from Qatar was picking apart what transpired after their convoy was hit by suicide car bomber. Local Afghans alleged the Marines went berserk, killing and wounding more than two dozen innocent civilians. The Marines, members of an elite commando force, said they were caught in a complex ambush, using precise, measured and justified force to suppress the threat and escape the kill zone.
Pihana's findings would touch off one of the most publicized war-crimes cases in recent American history. But as a newly declassified report reveals, his work wasn't only flawed, it was found to be "unbalanced," in some ways "inappropriate," and potentially influenced by the Army general who ordered the investigation right before making an unprecedented decision to evict the Marines' entire unit from the war zone.
All seven Marines ultimately were cleared of wrongdoing related to the March 4 attack — but at great cost to their reputations, physical health and emotional bearing, and that of their families. Long before their day in court, these men were branded killers by the very institution that had an obligation to provide them due process free of any bias or unlawful influence. At least one member of Congress and several senior military leaders — including the chairman of the Joint Chiefs of Staff, a Marine general at the time — weighed in publicly, all seemingly convinced the report's findings were sound.
"I felt at the time like if the facts were being looked at in an unbiased way, there shouldn't be any question, there shouldn't be any problem at all," one of those Marines recalled. "But then there was a feeling of 'Wow, this is really happening. We're up against the machine.'"
As detailed in the first three installments of this series, "Task Force Violent: The unforgiven," those at the heart of the controversy were assigned to Marine Special Operations Company Foxtrot, the first unit sent into combat by MARSOC, the Marine Corps' contribution to U.S. Special Operations Command. In many ways Fox Company's Marines were in deep trouble from the word go, the victims of poor guidance and woefully insufficient support from their higher headquarters. A tenuous situation became turbulent once in theater, culminating with their ouster, investigation, trial by public opinion and eventual adjudication during a three-week military tribunal held in January 2008.
Pihana, who has since retired from the Air Force, declined to be interviewed. "In recalling that event I remain convinced there is nothing substantial I could add, remove or change to the original inquiry," he said. "... I can understand the personal feelings involved but that would not change the thrust of the investigation."
The court of inquiry, a rarely used format, was overseen by a panel of three senior Marine Corps officers, whose findings are outlined in the newly declassified report. It was provided to Military Times — along with nearly 2,000 pages of supplemental materials — by Galvin, Fox Company's commander. Additional insights were gleaned through interviews with Fox Company Marines and others familiar with their case, many of whom agreed to speak only on condition of anonymity as some still hold sensitive jobs within the Defense Department and elsewhere in the federal government. Others cited lingering fears of violent retaliation by enemies affiliated with those they encountered on the battlefield eight years ago.
Pihana's full investigation remains unreleasable, along with more than 1,500 pages of courtroom testimony provided by many of the senior military officers connected to the case. It is, however, summarized within the court's report.
No one disputes the Marines were attacked by a suicide car bomber. The blast was ferocious and nearly killed all five men riding inside the second of six humvees in their convoy. However, Afghan villagers did contest the Marines' unanimous assertion that an ambush ensued — specifically that enemy small-arms fire targeted the patrol from both sides of the highway, prompting the Marines to defend themselves.
Pihana arrived at Jalalabad Airfield, the Marines' base in Afghanistan, within 48 hours of the attack. Members of the patrol told Military Times that he made them instantly uncomfortable. Apart from his service affiliation and apparent unfamiliarity with front line combat operations, upon introducing himself to the group he made a request they found bizarre. "You can all call me Pat," Galvin recalled the colonel saying. "No Marine Corps colonel would have ever told any Marines of junior rank to call him by his first name."
Pihana never told any of the Marines, some of whom he interviewed more than once, that they were suspected of wrongdoing, he told the court. He did not advise them of their rights either, he testified, as required whenever American service members are suspect of breaking the law or violating military regulations.
Many of the one-on-one interviews were interrupted by phone calls from Pihana's boss, Army Maj. Gen. Frank Kearney, then the head of Special Operations Command Central. SOCCENT (pronounced "sock-sent") was a subordinate component within U.S. Central Command, a four-star organization with purview at the time of all U.S. military activity in Afghanistan, Iraq, and other hotspots throughout the Middle East and Africa. Pihana was Kearney's chief of staff at SOCCENT, which the court's three officers flagged, saying the selection inherently raised questions about objectivity and neutrality.
During his testimony, Pihana told the court of inquiry that initially he believed the Marines, and that upon inspecting the damaged humvee it appeared to bear the scars of having been hit by small-arms fire. He sought out two explosives experts also based at Jalalabad, Jason Mero, an Army sergeant first class, and Gary Simpson, a Navy petty officer first class. Mero would later recount to NCIS agents how Pihana, unfamiliar with explosives and their effects, asked them for help differentiating bullet impacts from damage caused by flying metal fragments from the bomb blast.
Both told Pihana the humvee was likely hit by bullets — specifically high powered weapons and small arms fire. Pihana initially agreed, Mero told the agents, according to a signed written statement, but doubt set in for the colonel after he went to the scene of the attack and spoke with some of the Afghans who claimed to have witnessed what happened.
Pihana called on Mero again. He "tried to convince me that the damage caused to the front plastic turret plate was a result of a round coming from inside the turret gunner's space," Mero told the NCIS agents. About six weeks later, at the request of NCIS, Mero printed his photos of the humvee. "I noticed that the damage to the turret had been altered," he told the agents. "When I viewed the humvee the first time, the damage to the turret was at an angle that the damage was caused from the outside of the humvee coming into the turret." The last time he saw the vehicle, "the damaged part of the turret had been altered so that the damage appeared to have been caused by something coming from inside the turret."
Pihana elected not to include Mero's statement in his final report, a decision the court called both "inappropriate" and possibly attributable to the fact it did not support his conclusion.
The casualty count was a moving target. The UN concluded 13 Afghans were killed on March 4 and another 36 were wounded, according to court documents. The Afghan National Police tallied seven dead and 23 injured.
Kearney approved Pihana's findings in April 2007 and notified Navy Adm. William Fallon, then the four-star head of U.S. Central Command. Days later the Army general gave an interview to the Washington Postexplaining that Pihana's investigation concluded the Marines killed or wounded more than 40 Afghan civilians. It found no evidence, he told the Post, of enemy small-arms fire. He said only that the Marines believed they were being fired upon. At least 10 people were killed and 33 wounded, including children and the elderly, Kearney said, calling the incident "catastrophic ... from a perceptions point of view."
Gen. James Conway was the Marine Corps' commandant when Fox Company was expelled from Afghanistan. He took issue with an Army commander's apology to Afghan villagers after the events of March 4.
Photo Credit: Staff Sgt. D. Myles Cullen/DoD
Attempts to reach Smith, Pace and Conway were unsuccessful.
Less than a month later, during early May 2007, Army Col. John Nicholson greeted the Pentagon press corps via satellite from Jalalabad Airfield, from which he oversaw all military activity in the region. Earlier in the day, Nicholson, now a three-star general in charge of NATO Land Command in Turkey, presided over what's called a solatia ceremony. In accordance with Afghan custom, he explained, he and other leaders handed out money — solatia — as a gesture of the United States' collective remorse for what happened March 4.
Such payouts are not intended to convey liability, Nicholson told reporters. But what he said next expressed the opposite. Reading from prepared remarks he shared with the Afghan villagers during the solatia ceremony, Nicholson apologized. "I stand by you today deeply, deeply ashamed and terribly sorry that Americans have killed and wounded innocent Afghan people," he said, calling the incident a "stain" on the American military's honor. "This was a terrible, terrible mistake."
Through an Army spokesperson, Nicholson declined to discuss the case with Military Times, saying that doing so would be inappropriate as his testimony remains classified. In 2008, he told the court of inquiry that he wrote the speech personally and carefully to avoid prejudicing the Marines by alluding to their actions specifically, the court's report says. But then Nicholson did precisely that in media interviews following the solatia ceremony, the court's report shows. He also said there were 19 dead and 50 wounded.
Congressman Walter Jones, a Republican member of the House Armed Services Committee whose district in eastern North Carolina includes Fox Company's home base, Camp Lejeune, was "incensed" upon reading media reports of the unit's removal from Afghanistan. He'd never met Galvin or the men in his unit accused of committing battlefield atrocities, but Jones believed they deserved the benefit of the doubt — and that the military brass was out of line for discussing the investigation publicly before the military had even decided how it would dispose of the case.
"I was shocked because of my great respect for the Marine Corps and special ops," Jones told Military Times during a recent interview in his Capitol Hill office, which is adorned with numerous military mementos, notably a wall display featuring the names and faces of dozens of Camp Lejeune Marines killed in combat since 9/11. "My disbelief was such that I just had to give the benefit of the doubt to these Marines. And then when the Army came out with their press release, … almost like they weren't upset that they had to ask the Marine Corps to leave [Afghanistan], I was very incensed.
"I have a moral responsibility," he said, "if I see a wrong, to try to make it right."
The congressman wrote to Defense Secretary Robert Gates and Army Secretary Pete Geren furious that the Marines' "presumption of innocence" was cast aside and their "reputations maligned." Nicholson's apology to Afghan villagers, he said at the time, amounted to a public conviction. Days later, perhaps goaded by Jones' public rebuke of the Army, the blunt-speaking Marine Corps commandant aired his perspective — and that was for everyone to shut up and let the legal process play out. As for the Army's apology, Conway called it premature.
Ilario Pantano, seen here in 2010, endured circumstances similar to those experienced by Fox Company's Marines after he was accused of killing innocent Iraqis in 2004.
Photo Credit: Logan Wallace/AP
In mid-2007, Galvin and his men met with Pantano at a Barnes & Noble bookstore in Wilmington, North Carolina, a coastal city some 60 miles south of Camp Lejeune where Pantano and his family settled upon leaving active duty. "They wanted to know how to survive the system because I'd been through it," Pantano, who now leads North Carolina's veterans affairs division, told Military Times during a recent interview. "They were going up against the machine that produced them, that refined them and was now ready to destroy them."
There was $36,000 remaining in the Defend the Defenders fund, Pantano said. He offered it to them, saying simply: "You're not alone." Galvin was humbled but refused to accept any money. "Take care of my men," he told Pantano. A few attorneys, including Knox Nunnally and Phillip Stackhouse, defended the Marines pro bono.
Now 43, Pantano became emotional while recounting the story. Doing so, he said, triggers post-traumatic stress. He was falsely labeled a murderer. The memory of how that affected his family remains vivid and upsetting. Over time he's come to accept that the Marine Corps' mission in such instances is not to defend individual Marines but to defend the institution. There are high standards, he said, and the service has a responsibility to investigate any allegations they've not been adhered to. "Unfortunately," he added, "when you're on the other end of the scrub brush, it leaves scars."
Pantano stood by Fox Company in the months to come. He even had Galvin to his home for dinner. "Look at this as one more combat mission," he recalls telling the Marines. "The Marine Corps has a mission to do, and so do you. Do your pre-planning and coordination. Prepare your counterattack. What are the enemy's weaknesses? Think like Marines and defend yourselves. Don't be sheep. If you're sheep, you'll be sacrificed and they'll slit your throat."
Lt.Col. Scott Jack, left, walks into court with his client Maj. Fred Galvin on Jan. 8, 2008 at Camp Lejeune, North Carolina.
Photo Credit: Randy Davey/File
Mattis declined to be interviewed for this report. In recalling the almost freewheeling nature of the proceedings, retired Lt. Col. Steve Morgan, one of the three officers who oversaw the tribunal, speculated the general perhaps hoped to lay bare the full scope of Fox Company's challenges before, during and after its deployment. Others said it had to be comprehensive as to leave no room for doubt that the United States addressed the allegations thoroughly and seriously. It couldn't be viewed as a whitewash.
By the time the court convened, so much had been said and reported about the incident and investigation that Morgan, for one, had a very good sense for the details — and how he felt about the matter. So good, in fact, he'd practically made up his mind. "When I walked in there," he said, "I was ready to send these guys to the brig. Everything I had known and some of the read-aheads that I had received to prepare myself. … I had this notion in my head: Maybe these guys did what it had been said they'd done."
That changed once evidence was presented, he said. Pihana's investigation was flawed. Witness testimony and defense motions raised other flags. There were stark differences, Morgan said, between what had been recorded by investigators and what was said in the courtroom. "It began to become clear to me fairly early," he added, "that something was amiss with the idea these guys were guilty of some sort of heinous crime on the battlefield."
"To my recollection, we wore uniforms at all times when we met with witnesses," he said via email. "Had we not, the effort to mislead MSOC-F Marines would have been futile. Our roles in the COI and our ranks were well known to ... defense counsels and any number of MSOC-F personnel who we previously interviewed. Phil and I visited the MARSOC [headquarters] on multiple occasions before the hearing began and before interviewing witnesses. I assume we were well known to every member of MSOC-F well in advance of interacting with them."
Sanchez, now a lieutenant colonel stationed in California, described his role during the court of inquiry as that of an investigator. All of the interviews he conducted were done with or led by NCIS agents, he said. The Marines, he said, "didn't like be challenged. They didn't like penetrating questions. They didn't like the fact that I didn't accept their version of the story."
Added Sanger: "The only sources of this accusation that I'm aware of had a vested interest in discrediting the investigation." The accusation would become the basis for a professional misconduct complaint advocated by Galvin's attorney, a threat that quietly went away in the months following the court of inquiry.
The government's case emphasized the Marine Corps' "cardinal rule of command," which maintains the commander is responsible for everything his unit does or fails to do. As Fox Company's commander, Galvin bucked the rules too many times, the attorneys argued. A PowerPoint slide displayed during the government's closing arguments read "MSOC-F takes no responsibility!!"
Upon reading that, Morgan scrawled on a printout of the presentation: "Did higher headquarters?"
The defense hammered at the reliability of Pihana's investigation, and moved to show that the Afghans claiming to be witnesses had a motive to "exaggerate, fabricate or lie" about what they saw: cold, hard cash. "We know," their closing arguments read, "that some of the Afghans were told by their village elders to lie about being injured so that they could receive monetary payments from the Americans. We now also know that the solatia payments for the deceased Afghans were significantly greater than the death estimate made by NCIS … of 5-7 because solatia payments were made to 17 individuals."
Galvin's attorneys linked one of the government's key witnesses to the suicide car bomber that hit Fox Company's patrol. Haji Liwani Qumadan was allegedly driving the blue Toyota Prado seen shot to hell in images captured by an Associated Press photographer who was on scene moments after the attack. The Marines told investigators they took fire from inside and around the Prado. Qumadan said he and his passengers — first it was three, then two — were innocent bystanders and demanded to be reimbursed for the $10,000 in Afghan currency he claimed was destroyed by Marine bullets, plus the cost of his Prado. Qumadan told the court via video that he intended to buy fuel and fertilizer on March 4.
NCIS agents uncovered evidence to suggest Qumadan was en route to meet with an individual who'd recently been released from the American detention facility in Guantanamo Bay, Cuba, according to the defense attorney's closing argument. The court's transcripts indicate Qumadan claimed not to have seen the bomb go off and that he was shot in the back — twice. "Our Marines were firing machines guns," Galvin said. "If he was shot in the back twice by a medium machine gun — and survived — he's a hell of a dude, and it's ironic that people said we used 'excessive force.'" The court's officers ultimately highlighted numerous inconsistencies with Qumadan's statements, and concluded that Qumadan either wasn't present when the attack occurred or he was lying about what he claimed to have witnessed.
Sanger, one of the assistant counsels to the court, brought in two witnesses who provided what he called the strongest, most unbiased evidence supporting Fox Company's version of events. He located the patrol's Afghan interpreter, whose testimony was not included in Pihana's investigation, and a foreign aid worker who was about 500 yards from the highway when the attack occurred. Both testified to hearing small-arms fire after the blast, a small amount at first followed by more as gunfire spread and was exchanged.
Morgan and his two colleagues overseeing the court, Sanger noted, focused on this key point in exonerating the Marines of the most serious allegations brought against them. "If someone has made an accusation that I or anyone else was hell bent on doing anyone harm," he added, "please remind them of this."
The court's report includes 389 findings of fact, 104 opinions and 13 recommendations. It was finalized in March 2008. On the Friday before Memorial Day, the senior officer who replaced Mattis at Marine Corps Forces, U.S. Central Command, Lt. Gen. Samuel Helland, distributed a news release indicating that in his final estimation, Fox Company's Marines acted appropriately on the battlefield and in accordance with rules governing the use of force. There would be no criminal charges for their actions in Bati Kot.
That evening, the Associated Press distributed a short story to media outlets around the world. America took a break for the long weekend. By the following week Fox Company was already a fading memory. The case everyone wanted to discuss was fast becoming a story no one wanted to remember.