But the SEAL command cleared the members of SEAL Team 2 of wrongdoing, the Times said in a lengthy investigative reported published Thursday, using a closed disciplinary process that is typically used for minor infractions, despite recommendations from a Navy lawyer that the troops face assault charges and a possible court-martial.
“It’s unfathomable,” Donald J. Guter, a retired rear admiral and former judge advocate general of the Navy, told the Times. “It really does look like this was intended just to bury this.”
The Times report is based on interviews with victims, current and former military personnel, residents of the Afghan village near where the incident took place, and the four American soldiers who made the initial allegations of abuse. It also cites a Naval Criminal Investigative Service report on the case, obtained through a Freedom of Information Act request.
“What happened in Kalach involved just one death in a conflict that has taken thousands of lives, but it had broader consequences,” the Times reported. “Instead of winning over the local population, the goal of the mission, the reported abuse further alienated villagers. It drove some previously cooperative Afghans to leave for Taliban-controlled areas, residents said.”
The article continued: “Brushing away serious charges, military justice experts said, reflects a breakdown of accountability that feeds the perception that SEALs and other elite Special Operations units get undue leeway when it comes to discipline. In murky wars with unclear battle lines, they warned, that can corrode ethical clarity and undermine morale.”
SEAL Capt. Robert E. Smith, then in charge of SEALs based on the East Coast and who is now a military assistant to the secretary of the Navy, told the Times that he found inconsistencies in the soldiers’ accounts during questioning five months later and that conflicting statements from Army and Navy witnesses “did not give me enough confidence in their overall accuracy to hold the accused accountable for assaults or abuse, or warrant Article 32 proceedings.”
Article 32 proceedings are public hearings to determine whether a court-martial is justified.
Smith told the Times that it was “evident” that Afghan Local Police had mistreated detainees and that SEALS hadn’t reported the abuse, but he dismissed the charges for failing to make a report.
Navy officials defended the handling of the case, according to the Times, saying that Smith had full authority to decide it as he saw fit.
According to the Times and sworn statements included in the Navy report, a bomb had exploded at an Afghan Local Police checkpoint just after dawn on May 31, 2012. The blast killed an Afghan policeman, angering his comrades, and the search for suspects led them to the the market in the village of Kalach. There, they entered the stall of three itinerant scrap merchants and began to bludgeon them with rifle butts, the Times reported, before binding the men’s hands and marching them with several other detainees to the American outpost nearby.
The tiny base had been set up by Green Berets, according to the Times, but they were rotated out for SEAL Team 2 in early 2012. At the time of the incident, 15 people were left at the base: six Navy SEALs, four naval support personnel, four soldiers and an interpreter hired through a private contractor.
In interviews, service members at the base and Afghans living nearby told the Times that the arrival of the SEALs changed the atmosphere of the base; their relationships with Afghans became strained and discipline issues emerged among the soldiers.
When Afghan Local Police arrived at the base on May 31, three SEALs took the lead in interrogating the detainees, soldiers said in sworn statements included in the Navy investigative report. U.S. Army medic Specialist David Walker and staff Sgt. David Roschak, the Army squad leader at Kalach, were standing on the roof of the outpost’s meeting room for security, which gave them a view of the questioning. Other witnesses had different vantage points.
At first, the SEALs stood back as the policemen hit the men.
Such mistreatment is not entirely uncommon for Afghan police militias, the Times reported. Previously, the newspaper has reported that U.S. troops were ordered to ignore sexual abuse of children by top Afghan militiamen. Afghan Local Police have also been accused of rape, murder and theft in their villages, The Post has reported.
The heads of police militias hold enormous sway in parts of Afghanistan, where they essentially operate as judge, police chief and tax collector.
As the policemen attacked the detainees with sticks and antennas at the base near Kalach, one SEAL allegedly said “Enjoy the show!” according to a statement. The soldiers told investigators they then saw the SEALS kick prisoners, fire handguns near their faces, stand on top of the men’s heads, and throw rocks at their chests and groins. One soldier said he saw an American pour water on a prisoner who looked like he was choking.
At one point, the SEALs told the soldiers to stand down, they said in their statements. The men complied, in part because they didn’t want to see anymore, several people told the Times.
The detainees were allowed to leave that afternoon, but the three scrap merchants struggled to make it up a hillside where they were ordered to walk. One of the men, Muhammad Hashem, collapsed a short distance from the base; he was bleeding from his skull and his back was injured, according to the Times.
One of the other men, Assadullah (like many Afghans, he goes by only one name), said that some Americans came over with water and a stretcher — he wasn’t sure who they were. He and the third detainee, Faisal Rehmat, lifted Hashem onto a stretcher and tried to walk. While resting under a tree, Hashem fell silent, Assadullah told the Times. He died shortly after, leaving behind a wife and a newborn son.
The day after, soldiers said in statements, the Taliban began to threaten reprisal attacks. When Roschak went to two of the SEALs about it, he told the Times, he was told: “Tell your guys not to talk to anyone about what happened outside of this camp. You know, no one needs to know we were involved.”
The Americans withdrew from the Kalach base shortly after, and Roschak wrote to his superior, “My squad is being involved in a cover-up regarding the possible killing of detainees.”
Cmdr. Mike Hayes, the officer in charge of SEAL Team 2 and head of a Special Operations task force in southeastern Afghanistan, called in the Naval Criminal Investigative Service and ordered the guns taken away from the four accused SEALs, according to the Times. The soldiers were then interviewed by Navy investigators, to whom they gave closely matching sworn statements. The four Team 2 members declined to speak to investigators and asked for lawyers.
Others from the outpost were also interviewed; several gave statements that they had seen some kind of mistreatment by both Afghans and Americans, while one said he saw no abuse by American personnel. Many provided “benign explanations for what happened,” the Times said. The group’s interpreter first told investigators he only saw abuses by the Afghan police, but in a later sworn statement said he had witnessed a more tumultuous scene.
An Afghan militiaman and a local shopkeeper who was among the detainees corroborated the soldiers’ reports, according to the Times.
The accused men — David Swarts and Daniel D’Ambrosio, who were petty officers first class, and Xavier Silva, a petty officer second class, as well as lieutenant junior grade named Jason Webb, who was mostly engaged elsewhere at the base while the alleged abuse took place — were sent back to their base in Little Creek, Va., according to the Times, for superiors to handle the disciplinary proceedings.
Webb and Swarts declined to comment to the Times, while D’Ambrosio could not be reached by phone. Silva said only, “If you knew what it was like on the ground, it would look different,” according to the Times.
A Navy lawyer reviewing the Navy investigation in August 2012 recommended that Smith, then in charge of SEALs based on the East Coast, charge the three enlisted men with assault and failure to report abuse by the Afghans and that he further investigate their lieutenant. But Smith could also handle the matter internally with a disciplinary procedure known as a captain’s mast, which the Times said is typically used for minor infractions like fistfights among sailors.
Military experts who reviewed the report for the Times said that allegations as serious as the ones detailed in the Naval Criminal Investigative Service report warranted an Article 32 hearing to determine whether a court-martial was called for.
After a series of hearings and question sessions involving the four soldiers, Smith decided not to pursue assault charges and brought up only the charge of failure to report abuse at the captain’s mast hearing in November 2012.
Geoffrey S. Corn, a former military lawyer who was the Army’s senior expert adviser on the law of war, described the captain’s mast procedure as “like ‘The People’s Court.'” The hearing is closed and not recorded; there is no impartial officer presiding, no prosecutor and no defense counsel, according to the Times.
Smith dismissed the only charges, opting to give the SEALs non-punitive “letters of instruction.” In a statement to the Times, he said that the SEALs believed their actions “de-escalated what was developing into a very dangerous situation,” and said that soldiers may have misinterpreted what they saw from a distance and didn’t see everything in their accounts firsthand.
Assadullah, one of the three men who was detained, told the Times he still feels pain from his beating in 2012, but he cannot afford a doctor of medicine.
“I want the Afghan government to ask why they were beating men who were innocent,” he said of the Afghan police. But “we can’t do anything to those American soldiers,” he told the Times. “They are very far away.”