Evidence possibly falsified in Kabul case
Lt. cols. acted ?exactly as they were trained?
By Kent Miller and Rod Hafemeister - Staff writers
Posted : Wednesday Apr 4, 2007 19:51:12 EDT
SAN ANTONIO ? Two Air Force lieutenant colonels who pulled guns on a Blackwater contractor in Afghanistan should not face courts-martial, the investigating officer has recommended.
But the Article 32 report uncovered allegations of witness tampering and attempted bribery; falsified evidence; and charging documents improperly altered.
All of that raises the question: Should somebody other than the lieutenant colonels be charged?
Lt. Col. Gary W. Brown and Lt. Col. Christopher R. Hall were accused of assaulting Blackwater USA contractor Jimmy Bergeron, including aiming an M4 rifle and M9 pistol at him. The showdown came after the vehicle driven by Bergeron and the one carrying the two officers collided on the road from Kabul Area International Airport to Camp Eggers on Sept. 19. The collision led to a confrontation during which the officers drew down on Bergeron.
Read the investigating officer?s report on Brown in which she recommends dismissal of all charges against both officers.
Prosecutors sought to blame the two officers, saying they initiated the contact between the vehicles, escalated the incident when the two vehicles met again at a traffic gate near the Afghan Ministry of Defense, then pushed and struck Bergeron before Hall finally slipped the safety off his M4 and pointed it at him.
But at their Article 32 hearing Feb. 24-27 in Kabul, Brown and Hall testified that Bergeron, not they, initiated the incident. As they were driving on a public road in their Toyota Land Cruiser, Bergeron drove his black-windowed sport utility vehicle into their vehicle ? twice.
Fearing they were being attacked by a terrorist, they sped off. But a short while later, as they were waiting at the traffic gate, Bergeron, bearded and dressed in civilian clothes, approached their car and began screaming and threatening them, they testified.
Brown is a C-17 pilot based at Charleston Air Force Base, S.C. Hall is an instructor pilot at Laughlin Air Force Base, Texas. The two deployed to work with the Afghan air force until the incident.
They fell back on their training. Hall and Brown got out of the vehicle with their weapons and ordered Bergeron to the ground. When he refused, they tried to force him down. And when that proved unsuccessful, Brown raised his weapon and clicked off the safety. According to the officers, only then did Bergeron comply and tell them he was American. Before leaving, Brown threw Bergeron?s keys into a bush so he wouldn?t be able to follow them when they departed, and they then went to the Camp Eggers Provost Marshal?s office to report the incident.
The investigating officer, Lt. Col. Leslea Pickle, recommended that all charges against the lieutenant colonels be dismissed. ?Given the security situation in Kabul at the time and the facts and circumstances of their encounter with Mr. Bergeron on the road, and then at the gate, I believe that they truly felt threatened and reacted exactly as they were trained to do,? Pickle wrote.
?Therefore, I do not believe that either Lt. Col. Hall or Lt. Col. Brown engaged in any criminal conduct. I believe that all the charges and specifications against both officers should be dismissed.?
Now it is up to the convening authority, Lt. Gen. Gary North, commander of 9th Air Force and Central Command Air Forces, to follow that recommendation or decide to proceed to court-martial.
Civilian attorneys for the officers said they were pleased with the recommendation ? but not surprised.
?There?s not a jury in the Air Force that would convict these two guys,? said Charles Gittins, Brown?s attorney.
The government?s case disintegrated, in part, because Pickle would not let Bergeron testify by phone. Bergeron was willing to attend the hearing ?had the government invited him before 15 Feb 07, just 8 days before the hearing began,? Pickle wrote. He was ?key to the government?s case, and therefore, his presence at the Article 32 hearing was crucial to a fair and impartial hearing for Lt Col Hall and Lt Col Brown.?
It?s unclear where Bergeron is now. ?It?s a matter of company policy not to comment on anything involving an investigation,? Blackwater spokeswoman Anne Tyrrell said.
Disturbing findings
Pickle?s report stated that she reviewed a videotape prosecutors had given to the defense, purportedly showing the incident at the gate, and noticed ?discrepancies? between what the tape showed and what supposedly happened during the incident. Defense counselors argued that the tape was a fake.
?I was not presented with any evidence as to how the video was obtained by the government and when it was produced,? Pickle wrote. ?There is no chain of custody for the videotape. I concur that the videotape provided, that is purported to be from 19 Sep 2006, does not match the sequence of events as they have been described by witnesses. Therefore I did not consider it for purposes of this report.?
Among the many discrepancies in the videotape is that it purportedly shows Bergeron hopping into his blue SUV and leaving the scene first, without searching for his keys. But the government?s case against Brown included a conduct unbecoming charge that resulted from Brown throwing Bergeron?s keys into a bush before leaving the scene first.
After the Article 32 concluded, the police commander in charge of the Afghan gate guards who witnessed the events told Pickle that he had been contacted many times in an effort to have the guards provide false testimony, and that someone had attempted to bribe some or all of the guards to give false testimony.
?I have sent a request to Army CID, through the Army legal personnel at Kabul, to have this information investigated,? Pickle wrote.
On the day the Article 32 hearing began, prosecutors revealed that the charge sheets against Hall and Brown, reviewed and preferred by Col. Mark A. Morris of Central Air Forces, were altered at the direction of Maj. Sarah Scullion, chief of military justice, CentAF Judge Advocate?s Office. The original charging documents stated that Hall and Brown were placed on restricted duty ? confined to the compound at the airport, without weapons ? on Sept. 23. But the charge sheets served on the officers Feb. 4 did not include that notation, raising questions about whether their right to a speedy trial, defined as 120 days by the Uniform Code of Military Justice, had been violated.
When Scullion was asked to testify and Pickle read her her rights under Articles 31 and 134 of the UCMJ, obstruction of justice and altering a public record, she declined, invoking her right to counsel.
Pickle said the 9th Air Force Judge Advocate?s Office had the right to change the document, not by whiting out the information, as it did, but by crossing it out, initialing it and promptly notifying the defendants and their counsel. None of that was done.
Aside from the issue of the improper altering of documents, if the orders limiting the officers? movement and right to bear arms ?are found to be ?restriction in lieu of arrest? … then the speedy trial clock began on 23 Sep 06 for both cases,? Pickle wrote. ?This will be a significant issue for the government at trial.?
Next step
A 9th Air Force spokesman confirmed that the command has the report, but that North, the convening authority, needs to review it before deciding if the cases will go to courts-martial.
But the question on many people?s minds is why this case was brought in the first place. Why would the Air Force take the word of a Blackwater contractor over that of two Air Force officers?
It?s a question Brown and his wife, Stacey, have had to ponder. He has had to shell out almost $24,000 for attorney?s fees so far, and that will climb dramatically if there is a court-martial.
Greg Pavlik, Hall?s attorney, said the officers? alleged actions were completely out of character with their exemplary military records. Several colleagues attested as much.
?There?s no way in the world,? Pavlik said, ?that they went out on their own and created this road-rage incident.?
Related reading
Analysis: Kabul clash tests combat rules, raises questions across the force
Related: Officers in scuffle called sticklers for rules
http://www.airforcetimes.com/news/2007/03/airforce_blackwater_article32_070323w/
