- The Washington Times - Tuesday, January 14, 2003

WASHINGTON, Jan. 14 (UPI) — The military version of a preliminary hearing into the accidental bombing of Canadian soldiers in Afghanistan last April by two American pilots began Tuesday at Barksdale Air Force Base, La.

The hearing, known as an Article 32, will recommend whether the two Illinois Air National Guard pilots should face criminal charges in a court martial.

Maj. Harry Schmidt and Maj. William Umbach face charges of involuntary manslaughter, aggravated assault and dereliction of duty, which carry a maximum sentence of 64 years in military prison if they are convicted.

Umbach is being defended by Dave Beck, a Knoxville, Tenn., attorney who represented a Marine officer court-martialed in 1998 in an accident in the Italian alps, when the aircraft they were flying sliced through cables supporting a cable car at a ski resort, killing 20 skiers.

Schmidt, the pilot who actually dropped the 500-pound bomb April 17, 2002, is being represented both by a military lawyer and civilian Charles Gittins, an aggressive defender of military clients who believes the court martial system is inherently unfair.

Gittins defended Sgt. Maj. Gene McKinney, then the top enlisted man in the Army, getting him acquitted of 18 of 19 charges of sexual harassment of six female soldiers in 1997.

Gittins is listed on the Web site of "Citizens Against Military Injustice," an organization dedicated to helping military personnel fight within the parallel legal system that governs their behavior and punishment.

"We believe that the practice of court-martial is unconstitutional under its present guidelines," states the organization's manifesto. "Forget the Bill of Rights and civilian concepts of a justice system, including the presumption of innocence until proven guilty. The Uniform Code of Military Justice was designed and is perpetuated primarily to reinforce the command structure."

CAMI, as it is known, believes the system can be unduly influenced by commanders who outrank and can affect the careers of the military judges and attorneys on a given case, and says proceedings are unfairly weighted in favor of the prosecution.

Indeed, Gittins intends to put the command structure on trial. His case will rest heavily on two factors: that the pilots were not told Canadians were conducting a live-fire exercise in the region prior to their flight or when they contacted airborne controllers requesting permission to fire; and that they were using Air Force prescribed "go" pills — Dexadrine, an amphetamine — which may have affected their judgment.

Umbach had taken 5 mg of Dexadrine two hours before the incident, while Schmidt had taken 10 mg at midnight, less than an hour before dropping the bomb, according to a U.S. military report on the incident.

Schmidt and Umbach were flying their F-16s at the tail end of a 10-hour mission when they observed ground fire a few miles south of Kandahar, Afghanistan. Taking it to be surface-to-air fire, Schmidt requested permission from an Airborne Warning and Control System controller to bomb the target. Permission was denied but he was told to "mark" the target, which means to note its location, while the source of the fire was investigated.

Ground fire continued and around two minutes later Schmidt radioed, "I am rolling in self-defense." He then dropped in altitude and released a single bomb in what he claims to be self-defense.

Umbach, Schmidt's technical superior, then radioed, "Can you confirm that they were shooting at us?" according to a transcript included in the military's report on the accident.

"You cleared self-defense," stated the controller.

The bomb killed four members of the Canadian military and injured eight more. They were practicing night maneuvers using live small arms ammunition.

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