By SCOTT LINDLAW
The Associated Press
Wednesday, March 28, 2007; 7:21 PM
SAN JOSE, Calif. -- Two generals singled out for blame in the Pat Tillman case have retired since the Army Ranger was killed by friendly fire in Afghanistan, but they remain within reach of the military justice system.
Because they receive military pensions, Lt. Gen. Philip Kensinger and Brig. Gen. Gary Jones could be recalled to active duty and court-martialed, former and current military lawyers say.
Kensinger, the officer most heavily criticized in a Monday report from the Pentagon, could be charged with making false official statements. The maximum punishment if convicted is five years in prison, a dishonorable discharge and forfeiture of pay, said John Einwechter, who has been an Army commander and a military prosecutor.
Commanders reviewing the case "might say the harm done to the Army and the Tillman family is so significant it warrants discipline," Einwechter said. Such a step would be highly unusual, he said. Other experts said a court-martial was unlikely.
The Pentagon announced Monday that nine Army officers, including four generals, made errors in reporting the friendly fire death to their superiors and to Tillman's family. Defense officials said one or more of the officers who provided misleading information during the shooting investigation could be charged with a crime.
Gen. William Wallace, who oversees training for the Army, is examining the officers' actions and is to provide a report on possible punishments by late April.
The Tillman family rejected the military's findings, saying they were an extension of the cover-up that began when Tillman was killed April 22, 2004, after his Army Ranger comrades were ambushed in eastern Afghanistan. His family seeks a congressional inquiry that would have the power to subpoena officers and soldiers involved.
A central issue in the case is why the Army waited about five weeks after it suspected Tillman's death was friendly fire before telling his family.
The Defense Department said Kensinger knew the truth well before telling the Tillmans and provided misleading testimony to investigators.
Kensinger, a three-star general, was in charge of Army special operations.
Jones, also now retired, conducted the third Tillman investigation ending in 2005. The Pentagon found numerous shortcomings with his report.
Scott Silliman, a former high-ranking Air Force attorney, said hauling retired officers back onto active-duty for disciplinary action is rare. Silliman doubted that would happen in this case, pointing out that the enlisted soldiers who actually shot Tillman were exonerated by the reports issued Monday.
Silliman said he anticipates the high-ranking officers will face lighter penalties, if any.
"You don't usually use a sledgehammer to do it if you can do it with something of less severity," said Silliman, now executive director of Duke Law School's Center on Law, Ethics and National Security. He speculated that the officers singled out by the Pentagon would receive administrative sanctions and nothing more.
Jones declined to comment Wednesday through his military lawyer, Army Lt. Col. Michelle Crawford.
Kensinger did not return calls from The Associated Press.
Two other generals singled out in the report are still on active duty.
One was Lt. Gen. Stanley McChrystal, commander of the Joint Special Operations Command, whose forces include the Army's clandestine counterterrorism unit, Delta Force. He was named "accountable for the inaccurate and misleading assertions" contained in papers recommending that Tillman get a Silver Star award.
Now-Brig. Gen. James C. Nixon was criticized for failing to ensure Tillman's family was told that friendly fire was suspected. Nixon is now director of operations at the Center for Special Operations at MacDill Air Force Base in Florida.