General acted to resolve conflict

A spokesman for Lt. Gen. Frank Kearney, who is under fire from military rank and file for bringing homicide charges against two soldiers who had already been cleared, said yesterday the general had acted only to clarify the situation after two investigations produced conflicting results.

Rep. Walter B. Jones, North Carolina Republican, has called on Defense Secretary Robert M. Gates to open an investigation into the actions of the general, who has irked soldiers and Marines with the charges against a two-man Special Forces sniper team in Afghanistan.

There is also anger over Gen. Kearney’s decision to expel members of a Marine Special Operations company from Afghanistan before a criminal investigation was completed into an ambush incident that left several Afghans dead.

Both incidents prompted criticism from the Afghan government and humanitarian agencies, which said innocent people were killed.

Col. Hans Bush, a spokesman for the Special Operations Command where Gen. Kearney is the deputy commander, said yesterday that there had in fact been two investigations into the sniper incident, with one clearing the two soldiers and the other suggesting a crime had taken place.

“Lieutenant General Kearney determined the best way to resolve the inconsistency was to prefer charges and send the case to an impartial, experienced Special Forces officer who could review the results and evidence of both investigations and make a recommendation,” he said.

Regarding the case of the Marine Special Operations Command (Marsoc) Fox Company, which was accused by Afghans of shooting indiscriminately at civilians along a roadside, the colonel said “there is not a lot that we can clarify prior to the completion of the Marsoc court of inquiry.”

But defense lawyer Mark Waple, who represents one of the Fox Company Marines, charged yesterday that Gen. Kearney had failed to provide critical evidence to the investigator conducting the final probe of the sniper team.

“Why did he direct criminal charges to be preferred by an accuser who had not been provided the criminal investigation that exonerated these two soldiers? … The accuser is on record as saying he never saw [the exonerating evidence], and if he had seen it, he would not have signed the charges,” the lawyer said.

Also yesterday, a retired Special Forces weapons sergeant provided The Washington Times with a copy of an e-mail from Gen. Kearney, in which the general acknowledged that soldiers have to make instant, life-and-death decisions based on rules of engagement that are open to interpretation.

“A lot is in the relationships and agreements with the sovereign nations we work in, and a lot of it falls into interpretation of [rules of engagement],” the general wrote in a Sept. 30 e-mail to Sgt. Jim Hanson.

“This is the most difficult challenge our young leaders are presented almost daily, and in an instant, they must choose. It is as you say a relevant topic. We and I in particular are silent on this till some legal proceedings finish.”

The e-mail reinforces the criticism of many in the military community, who feel that ground forces are being asked to fight insurgencies in foreign countries under vague laws and are then getting taken to court for their actions.

Members of the Marsoc Fox Company, expelled from Afghanistan under Gen. Kearney’s orders after an ambush incident that left several Afghans dead, are currently under a court of inquiry investigation.

“The Marsoc community is up in arms,” said a retired Special Forces warrant officer in touch with the Marine community in Iraq.

“These guys were not kids. The people involved were top-of-the-line professionals. They were not young grunts with a lot of testosterone,” he said, speaking on the condition of anonymity.

Criticism of the general also comes from other members of Congress besides Mr. Jones. In an interview yesterday, Rep. Dana Rohrabacher, California Republican, said: “It would appear that the general has his priorities [wrong]. His job is not to try to curry favors with the liberal media … .”

“No one should ever ignore when our people are acting in an illegal or immoral way, but neither should commanding officers try to demoralize them by exaggerating any fault they find and giving the benefit of the doubt to the enemy, rather than to our own people.”

Sgt. Hanson, who knows one member of the Special Forces sniper team, said the fact that charges were brought against the two men after they were exonerated was sending a chill through the military.

“If they were that scrupulous in following the rules of engagement and get second-guessed from Tampa, that makes it a lot harder for that person who has to make a split-second decision,” he said, referring to the headquarters of the Florida-based Special Operations Command.

At the core of the discussion, Sgt. Hanson said, was how the rules of engagement affect U.S. military interaction with both Afghans and Iraqis.

Bill Banks, director of the Institute of National Security and Counterterrorism at Syracuse University, who is working on international war conventions, said the incidents represent wider difficulties with the laws of war.

“There isn’t sufficient detail to allow commanders and soldiers in the field, let alone lawyers, to advise the soldiers and officers of the permissible limits of their operational authority in a difficult situation,” Mr. Banks said.

“We need a greater degree of precision, [particularly with] the dynamic nature of the battlefield and the inability to be able to distinguish civilians from enemies in certain types of battle space,” he said.