Call Sign Extortion 17

by Don Brown

  That’s how close the military came to burying this information altogether.

  So why were they hiding the mysterious Afghans—if they were even mysterious? Why weren’t they admitting their error and trying to find out who the Afghans were? And why did the Joint Task Force commander so abruptly cut off his subordinate (the J3 operations officer) when the subject of the unidentified Afghans on board Extortion 17 came up?

  It isn’t hard to figure out that they had something to hide, and that whatever they were hiding about those unidentified Afghans was probably very embarrassing to the military.

  But it is just as interesting to consider the great lengths that General Mattis (four-­star general in command of CENTCOM) went to in order to ensure that the Colt investigation stayed away from the topic of the seven missing Afghans.

  Put another way, the cover-­up about the seven Afghans begins much earlier, with the initial instructions given by General Mattis to Brigadier General Colt.

  Chapter 10

  CENTCOM Handcuffs Colt’s Investigation

  Billy and Karen Vaughn were informed about the issue of the seven unidentified Afghans being of concern for the first time at the meeting with Admiral McRaven and his enlisted aide on January 11, 2013. This revelation came some sixteen months after Brigadier General Colt finished his investigation.

  Some may believe it odd that Colt’s report failed to attempt to identify the seven Afghans who boarded Extortion 17. Such concern is well placed. But looking further into Colt’s marching orders, it seems evident that the restraints placed on him by General Mattis were designed to whitewash the investigation from the beginning.

  The order from Mattis to Colt was an odd mix which, on the one hand, appeared to give General Colt all the authority he needed to conduct an investigation to get to the facts of what happened, but on the other, tied Colt’s hands and ensured that the final findings would amount to a whitewash designed to suppress the truth about what happened to Extortion 17.

  Why is this? Because Mattis’s order included contradictory parameters and placed legal shackles on Colt’s hands that prevented him (Colt) from even asking all the questions he needed to ask to get to the truth.

  The order commissioning Colt to conduct the official military investigation of the crash of Extortion 17 was handed down by written directive from Mattis on August 7, 2011, the day following the crash.

  Mattis’s order entitled “Memorandum of Appointment” was attached to the Colt Report as “Exhibit A.” Brigadier General Colt was given one month, up to and including September 7, 2011, to complete the investigation.

  Sweeping Powers but Contradictory Orders

  In the three-­page directive, Mattis instructed Colt to “conduct your investigation in whatever matter you believe necessary and proper.” At first blush, nothing was constrained, at least not in the report. General Mattis provided that “you [BGEN Colt] may request any additional individuals or subject matter experts be appointed to accompany you or assist you in your investigation.”

  So Colt, at least it appears at first glance, was given the broad, sweeping power to ask anybody anything about the details of this tragedy. General Mattis told him, specifically, “You may order any witness to provide a statement, if you believe that they have relevant information that would not incriminate themselves.” And Mattis went on to write, “you may consider any evidence that you determine to be relevant and material to the incident.”

  Mattis further ordered Colt to provide (a) an executive summary with both classified and unclassified versions, (b) an index of all exhibits, (c) a chronology of the investigation, and (d) a list of persons interviewed and those from whom no statement was taken.

  Mattis directed that “if it is impracticable to obtain a written and/or sworn statement from a particular witness, you will swear to the accuracy of any transcription or summary of such witness testimony in whatever form it appears within your report of investigation.”

  So at face value, Mattis’s instructions seem like an order to look under every rock, behind every corner, to illuminate every shadow, and to leave no stones uncovered to get at the truth about Extortion 17.

  Did Colt not consider the possibility that Extortion 17 had been infiltrated by seven Taliban sympathizers, something that might be relevant to the investigation? Perhaps not, because his 1,250-page report treated the Afghans’ identity as a nonissue.

  One thing is for sure. It is absolutely impossible to believe that Colt did not at least consider the possibility of Taliban sympathizers infiltrating that aircraft prior to takeoff, given the serious breach of protocol and the very serious history of “Green-­on-­Blue” violence in Afghanistan.

  Perhaps, based on Mattis’s instructions complete with Article 31 self-­incrimination restrictions, Colt considered the topic of the seven mysterious Afghans to be a kettle of worms that he knew better than to stick his shackled hands into.

  Mattis gave Colt an out if he felt that relevant evidence might incriminate someone. Rather than issuing an order to Colt to investigate the shoot-­down and get to the truth of what happened no matter what, Mattis issued a half-­baked order designed in part to protect the legal rights of US service members who might give incriminating statements during the course of the investigation.

  For example, consider the following statement signed off by Mattis to Colt in the order to start investigations: “You may order any witness to provide a statement, if you believe that they have relevant information that would not incriminate themselves.”

  Putting that in layman’s terms, General Mattis was really saying, “If you think any of our guys messed up in any way, don’t ask them any questions and especially if they could get court-­martialed for messing up.”

  Could this explain why the seven missing Afghans’ identity is not inquired about? Was there a possibility that someone could be prosecuted for dereliction of duty in allowing those infiltrators on the helicopter?

  Of course this looks to be the case. Somebody messed up, big-­time, on the American side by letting those Afghans board that aircraft.

  Colt had an out, because his superior, General Mattis, essentially ordered him not to include relevant information, at least not in the form of any statements that might lead to self-­incrimination. If he had been given statements by anyone who knew, or should have known, that the seven Afghan infiltrators were not friendly to American forces, there was a possibility that those statements could have led to criminal prosecution under the Uniform Code of Military Justice, colloquially referred to as the “UCMJ.”

  It is hard to envision any scenario under which those seven unidentified Afghans slipped onto that American helicopter just before the shoot-­down without someone being at fault, and potentially subject to prosecution for dereliction of duty under the UCMJ.

  Suppose, for example, an American military member failed to double-­check the manifest. Such an admission would be a criminal offense under the UCMJ. Suppose someone was in charge of making sure the right Afghans, the ones whose names were actually on the manifest, boarded the helicopter, but failed to do so. Again, such an admission could be a criminal offense under the UCMJ and subject the one committing the offense to court-­martial for a crime known as dereliction of duty.

  Dereliction of duty under US military law is not the functional equivalent of a misdemeanor speeding ticket. Quite the contrary. It is a very serious offense, especially in times of war. In fact, during times of war, the UCMJ provides, at Article 92, that dereliction of duty is punishable by the death penalty.

  It cannot be disputed that somebody dropped the ball by allowing the Afghan infiltration into that chopper. Even if those unidentified Afghans were as sweet and as kind as the seven sisters of the poor, there is absolutely no doubt that certain persons within the US chain of command failed to ensure the security of that aircraft. There can be little doubt that under Article
92, someone could be prosecuted if the right questions were asked.

  An officer of Colt’s experience and professionalism should have been able to see the relevance of identifying those Afghans in seeking the full explanation of what went wrong.

  But when we look at his marching orders from CENTCOM and General Mattis, it is clear that Colt was actually prohibited from ordering witness statements that might lead to a criminal offense. At paragraph 7, he is told by General Mattis, “no military or civilian witness can be ordered to provide information that may incriminate him or herself.”

  In that same paragraph, General Mattis goes even further in shackling Brigadier General Colt’s investigative parameters. Mattis tells Colt, “If in the course of your investigation, you suspect any specific person may have committed a crime, you will promptly consult with your legal advisor, and then inform me. You should not attempt to elicit any information from any suspect without first discussing the matter with your legal advisor and then provide the requisite advice and warnings required by Art. 31, UCMJ or other applicable US law or regulation.”

  In other words, Mattis is saying, “Hey BGEN Colt. If you suspect somebody screwed up, you don’t say a word to anybody until you talk to me first.”

  Talk about a chilling effect on the investigation! General Mattis’s caveat is just that. Just as significant to these instructions is what was left unsaid: “Tell me if someone violated the UCMJ.”

  Here is what was unsaid between the lines of these instructions. “Look. We all see the pink elephant in the room. The pink elephant is those seven unidentified Afghans. We all know that somebody screwed up here when those Afghans, who weren’t in the flight manifest, entered that chopper. It was a big-­time mistake and a big-­time breach of procedure. Heads could roll for having allowed this. We have to conduct an investigation. We have no choice. But it could become highly embarrassing to the military and highly embarrassing to the administration if the public’s attention is riveted on this issue.”

  By the way, “warnings required by Art. 31, UCMJ,” are the military’s equivalent of what are typically referred to as “Miranda warnings.” Anyone over fifty years old who ever saw the TV show Dragnet is intimately familiar with Miranda warnings.

  Likewise, those Miranda warnings are codified in the UCMJ, whereby a military member suspected of a crime under the UCMJ is told he has the right to remain silent, that anything he says can be used against him, that he has a right to speak with an attorney, and have an attorney present during questioning.

  So Mattis in his order went overboard, again and again, to discourage Colt from investigating anything, or asking any questions that might lead to a criminal offense under the UCMJ.

  In General Colt’s defense, his hands were strapped from the beginning. There was no way Colt could get into the question of the identities of the Afghans without asking questions such as, “Who had a duty to check the manifest?” or “Who had had a duty to make sure they matched the manifest?” or “Who had the duty to make sure the right crew was on board?” or “Who had a duty to vet the Afghans who boarded Extortion 17 to make sure they were not dangerous?”

  Each and every one of these questions leads to the possibility of a dereliction-­of-­duty charge, which is potentially a criminal offense—which, based on General Mattis’s order, meant that Colt could not go there, not of his own accord, no matter how relevant the issue, or how pink the elephant.

  So what started as a written mandate for a factual investigation into the cause of the shoot-­down morphed into a mandate filled with cautionary legal restraints, forcing Colt to proceed with one hand behind his back.

  The unsaid implication is clear. “Don’t ask those questions, period.” This is classic “don’t ask, don’t tell” put into action, in this case to protect exposing a major breach that might never have gotten out if not for a sliver of commentary by the J3 officer at page 118 of Exhibit 1.

  All this points to a bigger strategic and policy consideration: Which was more important? Protecting a potential military defendant’s Article 31 Rights, or getting to the truth about why thirty Americans, including members of the military’s most elite fighting force, were unnecessarily dead?

  Mattis’s instruction to Colt made it appear that Mattis was just as concerned about protecting personnel from making potentially incriminating statements as he was with finding the truth.

  Mattis did not have to clamp Colt’s hands with all the Article 31 warning language.

  To understand why Mattis had another option, one must examine the basic fundamentals of how a prosecution works within the military.

  US Military Law 101

  To understand why General Mattis did not have to muddle the waters with these Article 31 warnings, it is first important to understand the purpose of the military justice system.

  On one hand, the military justice system mirrors and is identical to, although generally much more efficient than, its civilian counterpart. For example, a military murder charge might have exactly the same elements as a civilian murder charge. The military rules of evidence substantially mirror the federal rules of evidence, and thus, military judges often make the same type of evidentiary rulings as civilian federal judges.

  But on the other hand, the military justice system is substantially different from its civilian counterpart in this regard: The military mission is more important to the military than the criminal justice system operating within the military. That’s because the principal purpose of the military is to win wars.

  General Norman Schwarzkopf, who gained fame as ground commander in Operation Desert Storm, once said that “The job of the military is to go to war and win, not to be instruments of social experimentation.” The former Navy SEAL and author, John Carl Roat, has been quoted as saying, “war is about killing people and breaking things.” A variation of Roat’s quote was later rendered by General Colin Powell, who said, during the First Persian Gulf War, that “an army is for killing people and breaking things.”

  The great Third Army commander, Lieutenant General George S. Patton Jr. said that, “An army is a team. It lives, eats, sleeps, fights as a team. This individuality stuff is a bunch of bullshit.” One of the greatest of all Marines, Lieutenant General Chester Puller said, “Paper-­work will ruin any military force.”

  The point in citing these great military men is to underscore the point that the dominant purpose of any American military force is first and foremost to win in battle, not to protect the legal and constitutional rights of its troops. Not that the legal and constitutional rights of military members aren’t important—they are vitally important. But they take a position of secondary importance to battlefield victory and to winning wars.

  The purpose of the military justice system is first and foremost to support the war-­fighting purpose of the military, by maintaining good order and discipline. Sometimes, but not always, that involves prosecuting military members who have violated the UCMJ.

  But there are priorities. Protecting a service member’s rights under Article 31 of the UCMJ does not rise to the same level of importance as preserving the warfighting and the war-­winning capability of the US military, nor should it.

  To promote good order and discipline to assist American forces in winning at war, the Manual for Courts-Martial exemplifies three types of courts-­martial that military commanders may use in this goal. And remember, because this too is unique, it is the military commander, and not some lawyer or some prosecutor in the JAG Corps that decides to bring charges. These three courts-­martial are:

  A summary court-­martial is for the most minor of offenses, applies to enlisted members only, and caps its punishment at thirty days confinement. It’s often used by commanders for typical squabbles, fights, and other minor disciplinary problems.

  A special court-­martial is used for most misdemeanor-­level criminal charges, either unique military charge
s such as unauthorized absence, or traditional criminal charges that you would find in civilian courts, such as assault, battery, and petit larceny. Punishment at a special court-­martial is capped at one year’s confinement.

  A general court-­martial is the highest and most serious level of court-­martial under the UCMJ.

  Remember again, the purpose of the US military is to win wars, not to serve as a laboratory for social experimentation or a safe haven for the full implementation of one’s constitutional rights. Certain constitutional rights that one enjoys outside the military are checked and left at the door once an individual enters active duty. For example, the First Amendment guarantees freedom of speech. But if you decide to openly criticize your commanding officer in the military, you could wind up prosecuted.

  Here’s the point to understand. While the military justice system in some ways is almost identical to its civilian counterpart—it uses an evidence code virtually identical to the federal rules of evidence, for example, and certain crimes such as murder, rape, and larceny for the most part have the exact same elements of the same crime in civilian courts—it is also in many ways very different from civilian courts and has crimes that are unique to the military.

  In many cases the military justice system criminalizes conduct that would not be criminal outside that system. For instance, being late for work or being absent from work can be criminalized. Negligence, a civil tort in the civilian world, is criminalized in the military.

  The crime of dereliction of duty is unique to the military. Dereliction of duty basically takes the civil tort of negligence and turns it into a criminal act. If you make an innocent mistake in civilian life, you might get sued for negligence, but you don’t potentially go to the brig.