- The Washington Times - Tuesday, July 6, 2004

The lawyer for Air National Guard Maj. Harry Schmidt has filed the first written argument in preparation for an administrative hearing, saying the F-16 pilot was the victim of poor command structure when he mistakenly bombed Canadian troops in Afghanistan.

Maj. Schmidt last month asked the Air Force not to court-martial him, as planned, on charges of dereliction of duty. Instead, he agreed to submit to an Article 15 hearing later this month before Lt. Gen. Gen. Bruce Carlson at Barksdale Air Force Base, La.

His civilian attorney, Charles Gittins, said the officer agreed to the hearing — and possible fines and house arrest if found guilty — after winning a commitment that he would not be dismissed from the service, guaranteeing that he can reach the 20-year retirement mark.

Mr. Gittins filed a 68-page briefing contending that his client is innocent. The lawyer argues that Maj. Schmidt acted in self-defense when he mistook the gunfire at a training range near Kandahar as anti-aircraft guns. He dropped a laser-guided bomb on the site, killing four Canadian soldiers.

Mr. Gittins’ brief also criticizes the Air Force for what it calls a flawed chain of command that failed to notify Maj. Schmidt that the Canadians were training on the range that night.

“Early allegations and insinuations in this case that Maj. Schmidt was some sort of rogue pilot trolling the Afghan skies looking for something — anything — to drop a bomb on have been proven to be as absurd in fact as they were when they were first uttered,” Mr. Gittins said in his July 1 filing.

“Instead, investigation has show that on 16 April 2002, Maj. Schmidt stepped not only into his plane, but into a situation populated by information gaps, substandard practices, systems inadequate to timely respond to his calls for assistance, misguided operational priorities and, in some cases, outright negligence.”

A dereliction of duty charge against Maj. Schmidt reads, “You, who knew of your duties as an aircraft commander and the wingman in a two-ship flight of F-16 aircraft, in the vicinity of Kandahar, Afghanistan … were derelict in the performance of those duties in that you negligently failed to ensure that the target you attacked was not friendly forces, as it was your duty to do.”

But Mr. Gittins said the Air Force is trying to criminalize what was a rational decision by a seasoned pilot to defend himself.

He quotes from an Air Force pilot who is on record as characterizing Maj. Schmidt’s flight from Kuwait to Afghanistan and back as “the most demanding and difficult missions in the airplane I’ve ever flown.”

“Maj. Schmidt truly believed that what he observed was a hostile act threatening [his wingman] which required his immediate response in the defense … It is my opinion that he acted reasonably.”

An air planner at the Kuwait base, Capt. Brett Paola, stated that Maj. Schmidt’s actions “were reasonable given the knowledge he possessed at the time and his training and experience as a veteran combat flight pilot.”

A third pilot, Lt. Col. Michael Loida, said, “With no knowledge of friendly live fire training being conducted, it was a reasonable option for him to declare self-defense, in according with the [rules of engagement] and to neutralize the perceived threat.”

Mr. Gittins also cited the difficulty of the 10-hour, round-trip mission.

“These missions were so physically demanding that Maj. Schmidt, like all the other pilots in theater, were given schedule II controlled drugs — amphetamines — just to be able to stay alert enough to complete his missions,” the brief states.

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