The skills and techniques of a bodyguard are not those of a soldier. Soldiers are trained for offensive action, while bodyguards call themselves “bullet catchers” because they step into danger on purpose. Being big and tough is helpful in close protection, but mental acuity matters more. The job rewarded the alertness that had distinguished Ayala as far back as his gang days, a sensitivity to the tension running through a crowd, a feeling for what was coming before it happened. Bodyguards are taught to scan their surroundings for color, contrast, and movement. Look for patterns, they’re told, and don’t just look, see. Pay attention to hands, not faces. Concentrate on midsections, where guns and bombs hide beneath layers of cloth. If something happens, a bodyguard’s first thought isn’t to take out the assailant. He puts himself between the attacker and the principal, brings the principal to the ground if necessary, and gets him out of there.
On the morning of Ayala’s sentencing, a sunny day in May 2009, I drove to the federal courthouse in Alexandria, Virginia. Ayala and his family stood out front dressed in dark, tailored clothes. His girlfriend, Andi Santwier, was petite and blond, with waxen skin and a torch singer’s raspy voice. She wore a dark suit and big sunglasses that hid her eyes, but the tightness around her mouth suggested the intensity of her effort to hold herself together. They looked like mourners at a graveside as they shook hands with well-wishers. The brick courthouse stood across the street from a manicured park where office workers ate lunch on benches in warm weather. I crossed the park slowly. Ayala stood with his back to me, but he was easy to pick out, a man in a dark suit with the bearing of a Secret Service agent. We had never met in person, but when I drew within twenty feet of him, Ayala turned and looked back over his shoulder, staring directly at me. He reached to shake my hand, greeted me by name. This was the uncanny sense of peripheral vision—an awareness not just of what lay in front of him, but of who stood behind him—that had made him such a gifted bodyguard. During a visit to Maiwand earlier that spring, I had wondered aloud whether Ayala might have been angry with himself for failing to protect Loyd. His former team leader, Mike Warren, had nodded curtly. When Ayala shot Abdul Salam, Warren told me, he had really been shooting himself.
Ayala and his supporters filed into the courthouse a little before 9 a.m. When his case was called, he left Santwier’s side and moved to the defense table. His lawyer, Michael Nachmanoff, outlined the aspects of the case that the defense and prosecution agreed on: that Paula Loyd’s death was a “tragedy.” That she had endured “unimaginable suffering” and death as a result of Abdul Salam’s attack. “We also agree that Mr. Salam deserves no sympathy,” Nachmanoff told the judge. Ayala’s victim had “committed an unspeakable act against an unarmed woman who had dedicated years of her life to helping the Afghan people.”
Federal sentencing guidelines set a range of sanctions for every crime, from probation to prison time. The actual sentence can vary based on a defendant’s criminal history and other factors, but the judge usually chooses a sentence somewhere within the guideline range. For manslaughter, the guidelines recommended six to eight years in prison. Nachmanoff was asking the judge not to imprison Ayala at all, but to sentence him to probation, an outcome that even the public defender viewed as unlikely. Still, it was worth a try. A judge is not bound by the sentencing guidelines if he believes the appropriate sentence lies outside them, and Nachmanoff would argue that if ever a case warranted a departure from the guidelines, Ayala’s was it. Most voluntary manslaughter cases involve fights: drunken barroom brawls, a husband coming home to find his wife in the arms of another man. Crimes of passion constitute the legal “heartland” of manslaughter, but Ayala’s offense fell well outside this familiar territory. He had killed Abdul Salam on a distant battlefield at a moment of perceived imminent danger to himself, his teammates, and the soldiers. The struggle to subdue the Afghan had been “very violent,” a soldier had told Army investigators, and the detainee, though physically slight, had fought hard, even trying to grab one of the soldiers’ guns. They’d had reason to think that the assault on Loyd might be part of a more complex attack, and in that context, the defense argued, Salam could be seen to pose a continuing threat, even with his hands cuffed behind his back.
A victim’s behavior—his role in provoking the attack that kills him—is an important factor in manslaughter sentencing. In Abdul Salam, Ayala had encountered “the kind of provocation that I think this court has never seen and I hope will never see again,” Nachmanoff told the judge. Paula Loyd had been unarmed, asking questions and taking notes, when Salam doused her with gas and set her on fire. Her assault was “a terrorist act,” for which the Taliban had claimed responsibility, Nachmanoff said. Ayala, on the other hand, was not just an accomplished and law-abiding American, but an “outstanding individual, a hero . . . who’s dedicated his adult life to public service and protecting others.” If Ayala’s friends and relatives were surprised that he had killed the Afghan, the soldiers of the 2–2 were no less so. Ayala routinely scolded them for “morbid jokes” and “frequently encouraged us to be very gentle” with Afghans, Lieutenant Pathak, the platoon leader, had told Army investigators.
Anyone would have been angry at what Salam had done, Nachmanoff told the judge. But anger didn’t fully explain what had happened or why. What did explain it, according to the defense, was an error of judgment resulting from nearly lifelong exposure to violence and combat trauma. A manslaughter sentence can be reduced if the defendant can prove he was “suffering from a diminished capacity,” and this was where Charles Figley, the trauma specialist, came in. When Ayala had shot Salam, Figley surmised, he had been suffering from “a significantly reduced mental capacity” brought on by battle fatigue and trauma. In a life of combat, Ayala had been shot at eight times and physically assaulted three times, Figley wrote. He had cleared and secured homes or other buildings on eighteen occasions, twice helped to clear makeshift bombs, and witnessed two explosions. On five occasions, he had known someone who was injured. He had seen the dead bodies of enemy fighters, soldiers, civilians, and children more than a dozen times, and handled the bodies of dead American soldiers twice. He had experienced “intense fear” in combat on five occasions, and twice thought he would not survive. These experiences, Figley wrote, had significantly impaired his judgment. The accumulated weight of them had made it impossible for him to understand, in that moment in Maiwand, that his behavior was wrong and to stop himself. The attack on Paula Loyd had led to a convergence that had “awakened” Ayala’s “previously dormant combat stress injuries,” Nachmanoff argued, causing him to shoot Salam.
Ayala had already been severely punished, Nachmanoff told the judge. As a felon, he would be forbidden to carry a gun or get a security clearance, making work as a battle zone contractor impossible. Then, turning to the rows of chairs behind him, Nachmanoff asked Ayala’s supporters to stand. As if choreographed, the somberly dressed men and women who filled the visitor’s gallery rose to their feet in a single motion. Patty Ward was there, pale in a ruffled shirt and black jacket, and Loyd’s half brother, Paul. Nearly everyone in the courtroom stood. “He’s affected many, many people in his life in a positive way,” Nachmanoff told the judge. “The government wants the court to impose a punishment now based on one moment, one act.”
Assistant U.S. Attorney Michael Rich rose to address the court. He was in an unenviable position. Early on, the government’s case had seemed admirably straightforward: it was advocating on behalf of a handcuffed victim and defending the laws of war. But this simple and compelling narrative had lost much of its potency since the defense had filed photos of Ayala handing out stuffed animals to Afghan children, the letter from Paula Loyd’s mother endorsing Ayala’s execution of her daughter’s killer, and a moving sentencing documentary in which Loyd’s boyfriend, Frank Muggeo, had said that punishing Ayala would amount to a terrorist victory. Rich was a veteran himself—a retired Marine general who had led the Corps’s Judge Advocate Division before beco
ming a federal prosecutor. He had taken his LSATs in Da Nang, Vietnam, the year before Michael Nachmanoff was born. Now he found himself arguing for the punishment of a man he seemed unwilling to blame.
“Ms. Loyd and her friends and supporters and family deserve all of our sympathy,” Rich told the judge. “Abdul Salam, the nominal victim in this case, the person whose despicable act set these terrible events in motion, deserves none, and neither does the defendant, Your Honor, which I hasten to add is not to say that we don’t empathize with what the defendant did. He did what he thought he had to do. Whether it was morally or philosophically right is for each of us who know the facts of this case to individually decide for ourselves. Whatever the answer to that question is, Your Honor, what he did, most assuredly, was not legally right.”
Here Rich ceded the battle for the better narrative, retaining only the cold comfort of the law. It was not an auspicious strategy. Figley’s report was “a bunch of psychiatric mumbo jumbo,” Rich told the court. Ayala was having it both ways: “He can’t be a hero on the one hand and somehow be mentally deficient on the other. It simply doesn’t wash.” But in the next breath, he found himself almost defending Ayala for shooting the Afghan out of “passion born of friendship and respect for Ms. Loyd, passion born of abhorrence of what Salam had done to her, passion exercised in the heat of the moment.”
Rich was not arguing for six to eight years’ imprisonment. He agreed that Ayala’s crime merited a more lenient sentence. Yet he was defending one of the most basic rules of combat: that capturing forces are forbidden to shoot prisoners. Ayala was not some green young soldier. He had years of training and experience, Rich told the court, and he knew better. When he killed the handcuffed detainee, he had threatened to erase much of what had been drilled into the heads of the impressionable young soldiers he’d been accompanying. A tough sentence would make the point that prisoners could not be killed with impunity, that no matter how angry you got, killing a captive was wrong.
In the legalistic realm of his written filing, Rich had pursued Ayala with greater verve than he now seemed able to muster in a courtroom filled with Paula Loyd’s relatives. “The facts and circumstances of this case are not complex,” the prosecutor had written. “It was an execution.” He went on to highlight the fact on which the battle of narratives turned, the fact that Nachmanoff had so successfully exploited and that, had Ayala’s crime occurred on an American street and not an Afghan one, would have been impossible to obscure. “We know much about Paula Loyd and the defendant,” Rich had written, “but very little about Salam.”
In the emotionally charged courtroom that day, Salam remained a cipher. Had he been American, or even a citizen of some more developed and less frightening country, a country where America was not at war, his crime would have been no less heinous, but neither would he have been such a complete blank. Indeed, if Salam had been described to the judge as anything other than simply a “terrorist,” he would not have been entirely deprived of sympathy by the government prosecuting his murder. In constructing Ayala’s defense, Nachmanoff had tried to show that people are complex, that every act grows from a dizzying web of antecedents, and that punishment should be based on a life’s entirety rather than a single instant. He had urged the judge not to punish Ayala “based on one moment, one act.” But it was impossible to overlook the fact that, in this Virginia courtroom, Abdul Salam’s life had been reduced to one moment, one act.
Only a couple of small gestures by the government even hinted at the fact that Salam’s backstory was entirely absent from consideration. “All we know about Ayala’s victim, Abdul Salam, is that he was a ‘frequent stranger’ in the village where he died,” Rich wrote in his sentencing memo. “We know nothing at all about what caused him to torch Paula Loyd. But we do know that when Ayala executed him, he was no longer a threat to Ayala, or his other teammate or the soldiers who were with them. In fact, Salam was his prisoner. That is what makes this a serious offense.”
A few days before the sentencing, the government had entered fifteen photographs into evidence. They were pictures that agents from the Army’s Criminal Investigation Division had taken when they traveled to Maiwand the day after the killing. In some, Lieutenant Pathak, the platoon leader, restaged Ayala’s killing of the Afghan. A soldier playing Salam lay on the dirt path with his hands behind his back, while Pathak, pretending to be Ayala, knelt behind him with his knee in the man’s ribs. One photograph showed Salam’s forearm bearing a rudimentary tattoo of his name, which means “Servant of Peace.” In another picture, Salam’s dead body lay on the path, his feet toward the river. A stain darkened the sand beneath him, and a body bag waited a few feet off. The most disturbing picture was taken at close range. In it, Salam’s body was unnaturally twisted, his head bent away from the camera. He had been turned on his side to reveal that his hands were still bound behind his back. He was small and thin and his tunic was hiked up to reveal the pale skin above his hip. The ground beneath his legs was wet from the stream, where Jack Bauer had wrestled with him. Blood ran from his head, small black rivers in thick dust.
When Rich finished speaking, Judge Claude Hilton looked up from the papers scattered across his desk. He asked if Ayala had anything to say. Ayala walked to the podium and stood there, solid as a wall in his dark suit.
“The day of November 4, 2008, I wish it never occurred,” he said, his voice soft and gravelly. “I’m standing here in a not so very favorable position, but whatever is imposed on me, I will continue to serve honorably and professionally. Thank you.”
In the gallery, Santwier sat next to her father, a criminal defense lawyer who had devoted many hours to Ayala’s case. Loyd’s half brother and his wife held hands as Judge Hilton began to speak. Although the guidelines called for a sentence of six to eight years, the judge said, the facts of the case called for less. Salam’s attack on Loyd had provoked his killing, “and would provide provocation for anyone who was present there at the time.” Ayala had a sterling record of military service and had led a productive life. “You can’t forget that this didn’t occur here on the streets,” Hilton said. “This occurred in a hostile area, maybe not right in the middle of a battlefield but certainly in the middle of a war. Considering all those things, it will be the sentence of the court, Mr. Ayala, that you be placed on probation for a period of five years—”
He wasn’t going to prison. Gasps and sobs drowned out the judge’s words. Loyd’s mother hunched forward, leaning against her husband, her shoulders shaking, and Loyd’s half brother and sister-in-law cried in each other’s arms. The judge was saying that Ayala would have to pay a $12,500 fine, that he wouldn’t be allowed to work in security or protective services, that he would have to undergo whatever mental health counseling his probation officer required, but Ayala was already standing and hugging his lawyer and Santwier, and everyone spilled out into the hallway, where Patty Ward threw her arms around Loyd’s half brother and someone picked Santwier up and swung her around until a bailiff came out and said, “Can you hold it down? The judge is still on the bench.”
8. GOOD INTENTIONS
In the months after Paula Loyd was attacked, I retraced her steps. I flew to Zabul, the poor province in southeastern Afghanistan where she had worked for USAID, and to Kabul, where, one evening, I mentioned her name to a member of Afghanistan’s Independent Human Rights Commission. He had known Loyd but hadn’t heard of her death, and when I told him what had happened he sat still and stared at the floor. After a while he rose and walked to his computer to search his email inbox for her last note to him. I switched off my audio recorder, feeling like a voyeur.
By early 2009, the Human Terrain System was showing signs of strain. Paula Loyd had been the third Human Terrain social scientist killed in the field in eight months. The previous May, a brilliant thirty-one-year-old former Marshall Scholar named Michael Bhatia had died when a roadside bomb exploded near his Humvee. It had happened in Sabari, whose gentle green hills and winding l
anes conjure a nineteenth-century landscape painting and mask its status as one of the most violent places in Khost, the eastern Afghan province where the first-ever Human Terrain Team had seen such success. A month later, Nicole Suveges, a thirty-eight-year-old graduate student at Johns Hopkins, was killed when a bomb exploded during a meeting she was attending in Baghdad’s Sadr City. By the fall of 2008, reports of trouble on the teams were multiplying. It emerged that among the Human Terrain social scientists deployed to Iraq were several who knew nothing about Iraqi culture, who had done their field research in Latin America or with Native Americans or among Dumpster divers, ravers, punk rockers, and Goth kids. In Afghanistan, a Human Terrain Team leader and other male team members mocked a female teammate, writing the Spanish words “Mata La Vaca,” or “Kill the Cow,” on a whiteboard in the team’s office at Bagram Air Base. The woman interpreted these words as a death threat and accused her team leader of sexual harassment. A military investigation found that she was not alone. Men on the team had displayed pictures of naked women around the office and several other female team members had been subject to insults, ethnic slurs, and unfair work assignments. The military asked that the team leader and another male team member never again be deployed with their unit, the 101st Airborne Division Special Troops Battalion, but the men kept working for the Human Terrain System. Meanwhile, the United States was planning to send more troops to Afghanistan and the Army wanted more Human Terrain Teams. In early 2009, shortly after Loyd’s death, the Pentagon more than doubled its requirement for field teams in Afghanistan.
The Tender Soldier: A True Story of War and Sacrifice Page 16