by Don Brown
If you make a mistake in the military, even if you did not mean to or simply forgot—say if you fail to check a flight manifest to keep intruders off an aircraft—not only could you possibly go to jail, but in times of war, in theory, you could potentially be executed.
That’s a big difference.
Other crimes unique to the military with no civilian counterparts include unauthorized absence, desertion, missing movement, and conduct unbecoming an officer. Understand that all these crimes that are uniquely military are designed to support the mission and effectiveness of the military, which first and foremost, is to win wars, and not to serve as a laboratory for social experimentation.
Against this backdrop, here’s another aspect of the military justice system that makes it unique and different from the civilian system. In the civilian system, criminal charges are initiated by prosecutors. Usually, it is the district attorney at the state level or the US attorney at the federal level who initiates the process by which charges are filed—whether by seeking a grand jury indictment or presenting affidavits to a magistrate. The prosecutor has the discretion to charge or not to charge.
In the military, neither the JAG officer serving as the prosecutor nor any other prosecutor has the discretion to bring criminal charges against a military defendant. Instead, it is the military commander and only the military commander who has authority to bring charges or not to bring charges. The decision to charge anyone with a crime—say with the crime of dereliction of duty for failure to ensure that seven Afghans illegally boarded an American aircraft—is left up to the commander.
For a general court-martial, the military commander with the discretion to bring charges or not is a flag or a general officer, meaning a general or admiral, just like General Mattis. A general officer who brings charges is known as a “convening authority” in the military.
A convening authority, that is the military commander in the chain of command, asks this question and makes a decision: “Which is more important? Is it more important to the mission of the military to get to the facts, so that we can take corrective action and save lives in the future? Even if that means possibly forgoing criminal prosecutions because the method of gathering evidence might preclude it?
“Or is it more important for me to protect the rights of a defendant so that defendant is protected at a potential court-martial, even if protecting the civil rights of a defendant means I might not get to the bottom-line of what happened, even if not getting to the bottom-line might cost the lives of more of my men in the future, because I might not have the evidence that I need to take corrective action?”
General Mattis ultimately had to, at some level, make this value judgment in setting forth his marching orders to Brigadier General Colt to convene the investigation of Extortion 17. Though he probably would not admit it, Mattis had to decide whether to focus on protecting the rights of a potential criminal defendant in the event of a court-martial or getting to the bottom of why Americans died that day in Afghanistan.
That value judgment, at some level, went into the crafting of General Mattis’s order to Colt, and all the “Article 31” warning instructions that shackled Colt’s hands.
If Mattis were determined to get to the bottom line at all costs, he did not have to include “Article 31” instructions in his letter to Colt. But for whatever reason, he made a decision to do so.
The results of that unfortunate decision are obvious throughout the 1,250-page Colt Report.
The question “who were the Afghans on that chopper?” was never asked.
The question “who was responsible for checking the flight manifest and making sure unauthorized intruders didn’t enter the aircraft?” was never asked.
The question “who was responsible for vetting the Afghans who entered that aircraft?” was never asked, not by Brigadier General Colt, or by a single expert working under his command.
An even more pressing question is this: Why wouldn’t General Mattis want to know the names of those Afghans? Why wouldn’t the Army want to know if they were Taliban sympathizers? Why wouldn’t they want to know if, perhaps, those Afghans had any role in bringing down Extortion 17?
Could it be because the information, if revealed, might be embarrassing to the Army or to the mission? Could it be because revealing their identities might lead to questioning the wisdom of sharing sensitive military information with Afghan forces? Even if it means not prosecuting someone at a court-martial, surely getting to the absolute truth and absolute facts in a case like this would be far more important to national security and to protecting and safeguarding future missions. From a standpoint of good order and discipline, there are other ways of dealing with dereliction of duty short of military prosecution.
Moreover, getting to the actual facts of what happened and why might shed some additional insight on the wisdom, or lack thereof, of forcing US Special Operations forces to operate with Afghan forces, or any other foreign military forces for that matter, who have shown violent tendencies toward allied forces.
No one put a gun to Mattis’s head and forced him to give a written directive to Colt instructing him to Mirandize anyone who may have committed an offense, or to avoid even asking questions that might lead to prosecution. This instruction placed a huge chilling effect on the investigation.
Had Mattis left all the instructions about Article 31 out of his order to Colt, and had he not ordered Colt to avoid asking questions that might incriminate someone, then Colt would have had the freedom, at least legally, to ask whatever questions he wanted to ask to find out why Extortion 17 was infiltrated by unauthorized and unidentified Afghans.
Suppose some junior-level officer or enlisted man said, “I’m the one who screwed up. I forgot to double-check the manifest to make sure the right Afghanis were on board.”
Or suppose a senior enlisted man said, “I’m sorry, I forgot these guys that got on the chopper, and it turns out that two were Taliban sympathizers.”
If that junior-level officer made that admission, and Article 31 rights had not been read, here’s what that means. It means that the military might not be able to prosecute those guys in a court-martial. It would probably mean that the statements given could not be used in a court-martial, because the military’s version of the Miranda warnings had not been read.
But consider the upside. Sure, you may or may not be able to prosecute. But at least you might know exactly what went wrong, and if you know exactly what went wrong, maybe you can take painful efforts to prevent the same mistake from happening again in the future.
General Mattis wanted sworn testimony, and he got it. But he got no sworn testimony about the Afghans, other than the J3’s slipup, or perhaps his intentional slip-in, that they weren’t accounted for on the manifest. It appears that Mattis did not want, for whatever reason, the full truth, including the “good, the bad, and the ugly” of what really happened. At least he didn’t want the full truth on the record. All the precautionary language on Article 31 ensured that this would not happen.
In General Mattis’s final conclusion that followed the Colt report, he did not mention the seven unidentified Afghans, nor did he address the odd loss of the helicopter’s “black box,” nor did he address the odd question of why the military apparently cremated all bodies, thus destroying DNA evidence and making it forever impossible to positively identify the missing Afghans, nor did he touch on the issue of why several autopsies of US service members who died on Extortion 17 revealed that bullets had been found in their bodies.
Isn’t it odd that Mattis’s memorandum, approving Colt’s report, like Colt’s report itself, again, conveniently ignores the pink elephant in the room, namely the seven unidentified Afghans?
The general’s conclusion simply whitewashes the findings in a neat, tidy, conclusive memorandum, not pointing the finger anywhere, and not raising the issue of the seven unide
ntified Afghans, and certainly not attempting to determine, one way or the other, whether they were friendly to the Taliban or friendly to America.
Chapter 11
The Seven Missing Afghans Discovered by Happenchance
january 2013
The apparent decision to try to de-emphasize and stay away from a discussion about the Afghans on the aircraft almost worked.
Almost.
It isn’t clear whether the brief revelation by the J3 was intentional, to try and get the truth out, or accidental. All we know is that he was shut down by his boss, the Joint Special Operations Task Force commander, who kept him from saying another word about it.
This much we know. Mid-grade officers, who are not so influenced by political considerations, and senior enlisted men, who have seen it all, and often do not give a rat’s derrière about political bull, are the heart and soul of the US military.
These are the men and women who make the US military engine run. They generally care about truth, duty, honor, and country. They aren’t interested in B.S. rules of engagement or official cover-ups, and they especially aren’t interested in protecting a cover-up if a cover-up is intended to minimize responsibility for loss of life. They know that they, or their buddies, could be next on the short-end of some politician’s decision to use the military in a foolish way.
So given this, it would not be surprising if the J3 officer intentionally allowed just enough of a slip about these Afghans to get the truth out. That’s speculation, based on the author’s knowledge of the heart of the military. But if he did, God bless him.
But the truth always finds a way of percolating to the surface. They could not hide the pink elephant forever.
How did this J3 officer finally see the light of day? Remember that Extortion 17 was shot down August 6, 2011. It was not until January 11, 2013, seventeen months later, that a senior enlisted soldier in the Army, the sergeant major who accompanied Admiral McRaven into the Vaughns’ home, alerted families that failure to account for the seven missing Afghans was “a very big deal.”
Here’s the way this came down the pike.
Billy Vaughn, the father of slain SEAL Aaron Vaughn, was one of the few family members who actually received and read the Colt Report.
Seventeen months had now passed since his son’s death, but Mr. Vaughn recalled a small sliver of testimony that stuck out in his mind concerning Afghans on board his son’s helicopter before it crashed. That testimony was the testimony of the J3 officer.
Again, here’s that sliver of testimony, from Exhibit 1, page 118, that Mr. Vaughn remembered:
IO-DEP: Was there a manifest for that aircraft back at the—
JSOTF J3 (Operations Officer): Yes, sir. And I’m sure you know by now the manifest was accurate with the exception of the [Afghan] personnel that were on. So the [Afghan] personnel, they were the incorrect—all seven names were incorrect. And I cannot talk to the back story of why, but—
JSOTF CDR: But the bottom line is: We knew the total number that were on the aircraft. We knew the total number that we were trying to account for on the ground.
Mr. Vaughn had kept that exchange of testimony in the back of his mind, but had not paid much attention to it, because the testimony was so short, and unlike the issue of the missing black box and other matters, the military had said nothing about it.
Because nothing had been said about it by the military, because it was not included in the final Executive Summary of the Colt Report, and because so very little had been said about the issue (of the seven Afghans infiltrating the chopper), Mr. Vaughn assumed that the issue must not have been important.
But as Admiral McRaven and his senior enlisted advisor sat across from him in his home in Florida on that January day in 2013, the sliver of testimony floating around in the back of Mr. Vaughn’s mind popped to the forefront.
Eyeing the two highly decorated military men sitting across from him, Mr. Vaughn, as related in his book (co-authored by Monica Morrill and Cari Blake) entitled Betrayed: The Shocking True Story of Extortion 17 as Told by a Navy SEAL’s Father, asked the question, almost as an afterthought, about those seven Afghans getting on that chopper right before they took off.
“I guess it wasn’t a big deal, right? Because that was all that was said about it and it was then just passed over,” Mr. Vaughn asked the men, referring to the J3 officer’s testimony.
A moment passed. Admiral McRaven sat still and said absolutely nothing. But then, when it became obvious that McRaven was not going to answer, the sergeant major spoke up.
“It was a very big deal, Mr. Vaughn,” the sergeant major said. “That should never have happened. In fact, all of the Afghan families who had previously been notified of their loved ones’ death had to be re-notified that they were, in fact, alive. What actually happened was, at the last minute, the commander wanted to swap out those listed for the seven Afghanis who were actually on the chopper.”
Again, even after the sergeant major spoke up, Admiral McRaven still did not address the subject.
Bear in mind that at the time of this conversation, the Colt investigation had been out for sixteen months, and the Executive Summary had been issued, wrapped in a tidy conclusion that the military had done nothing wrong, and conveniently omitting any reference to this “very big deal.”
Bear in mind also the earlier observation that mid-level officers and senior enlisted generally aren’t interested in B.S. rules of engagement or official cover-ups, and they especially aren’t interested in protecting a cover-up if a cover-up is intended to minimize responsibility for loss of life. The whitewash was on, and the pink elephant, thanks now to the sergeant major who had the guts to speak up, had barged onto the scene.
After the men left, Mr. Vaughn became more bothered about all this, his stomach more twisted than ever.
Cover-ups lead to more questions, and the first question in Mr. Vaughn’s mind was “what commander authorized the swap-out?” Was the sergeant major talking about an American commander? Or was he talking about an Afghan commander who may have authorized the swap-out?
With the question nagging him and sticking in his gut, Mr. Vaughn picked up the phone and called an Army lieutenant colonel at Special Operations Command who had been involved in the investigation.
Mr. Vaughn posed the question to the colonel.
“Can you tell me who that commander was [who authorized the swap-out of the Afghans]?”
The lieutenant colonel hesitated momentarily then spoke with a quiet, but clearly perplexed tone, “Mr. Vaughn, we [the crash investigative team] weren’t told about that [the last-minute swap, which left the manifest incorrect].”
Mr. Vaughn also recounts this conversation in his book Betrayed: The Shocking True Story of Extortion 17 as Told by a Navy SEAL’s Father.
In other words, as a follow-up to the J3’s testimony, then the sergeant major’s revelation, we now have a lieutenant colonel, a member of the team investigating the crash, saying that members of the investigating team were not even informed about this unauthorized infiltration by the Afghans.
Why was information concerning the infiltration by these unauthorized Afghans withheld from the investigating team? Who is trying to hide what?
The issue of the seven unidentified Afghans was whitewashed in at least four instances: It was ignored in the 1,250-page Colt Report, the Executive Summary of that report, and in General Mattis’s memorandum approving the report, and information was even kept from members of Colt’s investigating team.
The issue also was not addressed in a ninety-minute congressional subcommittee hearing held on February 27, 2014, discussed in more detail later, a fifth lost opportunity. All this raises more questions pointing to a cover-up. Why, for example, would General Mattis not give Brigadier General Colt the full authority, not restricted by self-incrimin
ation issues of potential military defendants, to get to the bottom of what happened?
And going back to the testimony at Exhibit 1, page 118 of the Colt Report, why, during that testimony, did the commander cut off his subordinate, to prevent any discussion on the record about the seven unidentified Afghans? Is the commander trying to hide something by cutting off the topic and changing the subject?
What was the operations officer about to say that necessitated the cut-off by his commander?
Was he going to say, “But their presence was unauthorized”? Or “but . . . their presence was a breach of safety protocol”? Or “but . . . our men have concerns that seven unidentified Afghans may have compromised the safety of this mission”?
What were they trying to hide?
There is no way to know, because the brusque interruption by the Task Force commander kept the operations’ comments off the record, and successfully changed the subject.
The Joint Special Operations Task Force commander who cut off his subordinate’s thoughts on the unidentified Afghans was the same person who ordered the SEAL team into that chopper to begin with. This was revealed at page 99 of Exhibit 1, when Brigadier General Colt asked who ordered the ill-fated mission. Here’s that exchange:
BG Colt: At 2130 Zulu, the IRF was directed to infill by whom?
JSOTF J3: Sir, Task Force Commander was the guy that controlled the immediate reaction force. We actually have—discussing it before; there’ve been reports about the ground force commander, asking for the immediate reaction force to handle, to interdict those orders. Actually, it was from Task Force. They recommended to call over to the ground force commander and said, “Hey, we have got the immediate reaction force that we can employ against this thing, and that’s where it came from.”
There is no way to know if the Task Force commander allowed the seven mysterious Afghans on board, because the Afghans have their own commander.