Note: This is part three of the untold story of the men from MARSOC Fox Company, and the leadership that failed them. You can read part one and two here. Although the comparison may seem odd at first, there are striking similarities between the MARSOC 7 case and another high-profile case that took place at the same time as the MARSOC court of inquiry (COI). That case involved the Duke University men’s lacrosse team. There is no comparison between Fox Company Marines and alleged rapists, but these two cases serve to highlight how two major, biased investigations of similar-age college students in 2006-2007 ended with completely different outcomes. As many will remember, the prosecutor in the Duke lacrosse case, Michael Nifong, withheld state’s evidence that exonerated the lacrosse players. When the nation became aware of this witch-hunt by Nifong, they were outraged that the government was not playing by the rules.
The Duke case also had obvious differences to the MARSOC case. The first is that, in place of Michael Nifong, the MARSOC case had Air Force Colonel Pat Pihana as the primary investigator, whose omission of testimonies, suppression of evidence, and tampering with evidence was very damning for Fred Galvin and his men, as they were falsely alleged by Pihana to have committed homicide and were subsequently kicked out of Afghanistan. Another difference was that the defendants in the Duke case were a group of very wealthy, privileged college athletes who sought the services of an exotic dancer to entertain their team. Again, there is no comparison in regards to Fox Company’s Marines, who almost to the man had enlisted right out of high school during a time of war to serve in the Marine Corps, and again volunteered for service in the infantry, then a third time volunteered for service in Force Recon and MARSOC, and had served on multiple combat deployments.
The Duke case’s mishandling of evidence by the lead investigator made headline news on every major channel and newspaper regardless of their leanings, whereas the MARSOC 7 received an official “gag order” preventing any communication with the media, and thus the control of information remained in the hands of the military—until now.
A biased investigation occurred in both cases, but the Duke case caught headlines and saved the students from going to jail when they were not guilty. The authorities came after Michael Nifong for making public statements that were “prejudicial to the administration of justice” and for engaging in “conduct involving dishonesty, fraud, deceit, or misrepresentation.” These two statements were exactly what Major General Kearney and Colonel Pihana both did twice—in the ODA 374 case and in the MARSOC case—but their outcomes were completely different. Kearney ended up being promoted to lieutenant general as well as extending his stay in sunny Tampa, Florida for several more years, and was placed in a position controlling even more special operators’ lives as the deputy commanding general of SOCOM. Pihana ended up being rewarded with a prestigious “end of tour” award from Kearney, then he also extended his stay in sunny Tampa and followed Kearney to SOCOM, where he was again rewarded with a prestigious O-6 command assignment with the 18th Air Support Operations Group, even after mishandling both the ODA 374 and MARSOC investigations.
Colonel Pihana had four major areas of reckless impact on the investigation, which are backed up by his testimony from the COI. He obstructed justice, suppressed evidence, tampered with evidence, and was derelict of his duties as the investigator by not even asking the 66th MPs who were immediately on the scene for any evidence from their 4 March, 2007 follow-on actions in Bati Kot. So why did Kearney select Pihana twice in a row to conduct these extremely high-visibility Law of War allegation cases, when Kearney had Colonel Burkholder, USMC, on his staff in his own personal command deck? The question that should also be asked is, why are the standards of honor, ethics, and accountability higher in the civilian justice system than in the U.S. armed services? Most Americans would undoubtedly expect the standards to be higher in the military, but in this case, they certainly weren’t.
As covered in part two of this series, LTG Kearney spoke of how the Marines were not ready for “prime time,” yet he selected an officer (Pihana) to investigate capital offense cases despite his openly admitting to having no combat experience. Pihana was certainly not ready for prime time. To further validate the caliber of Marines who comprised Fox Company, Colonel Petronzio’s testimony from the COI stands in stark contrast to Kearney’s assessment of those men. Furthermore, Kearney himself had not seen combat actions firsthand since a very brief moment in Panama many years prior, while Petronzio had just returned from high-intensity combat in Iraq, and was preparing to go back for more in Afghanistan.
Whereas Pihana’s testimony states that he started his first interview of the MARSOC 7 on 8 March, 2007, the NCIS investigation shown below proves that MSOC-Fox was ordered out of Afghanistan the following day, on 9 March, 2007. This shows a rush to judgment and raises concerns about how senior military leaders treat cases that should be allowed due process. As Pihana’s testimony stated, his investigation was completed on 8 April, 2007, yet MSOC Fox was told they were being expelled on 9 March (far before his investigation was anywhere near being completed).
When Col. Pihana arrived and briefed the men of Fox Company on 4 March, 2007, post-ambush patrol, he clearly stated to all of them, “You can call me ‘Pat’.” Fred Galvin states, “That comment was made to Marines of all ranks, from corporals to myself, in a group setting in our chapel on the night of 8 March, 2007.” Pihana went on to say, “I’m here to perform an investigation, and the sooner I complete the investigation, the sooner you can return to your mission.” According to Fred Galvin, “That sounded comforting since the bad news about us was already everywhere in the press.” The next part that Col. Pihana talked about was very concerning when he said, “If you don’t want to make a statement, that’s fine; I’ll just order you to make a statement.”
However, on the witness stand a year later, Col. Pihana was questioned by the panel members if he had introduced himself to the Marines and asked them to call him by his first name, to which Pihana stated, “Not that I recall.” Here again, Pihana seems to, as in Sergeant First Class Mero’s EOD testimony, have selective memory loss when it comes time to recollect comments that he made, many of which were grossly unprofessional. Here, a senior military officer requested enlisted Marines to fraternize with him, then completely omitted the military EOD expert’s report from his investigation. These two examples prove how biased his investigation was. Definitely a far cry from “equal justice under the law.”
Pihana stated that Fox Company was not trained in discriminating shooting standards or the risk of collateral damage. Fred Galvin stated in response that, “Fox Company’s Marines not only demonstrated mastery of precision shooting standards during the MARSOC Close-Quarter Battle Course and the Urban Sniper Course, but also during four separate occasions when MARSOC and the 26th MEU’s Interoperability and Certification Exercises were conducted, as well as three separate interoperability exercises with Pihana’s own AFSOC, Naval Special Warfare Command, and the 160th, all completed without any safety violation or comment on any Marines or corpsmen having issues of lack of proper mindset.” Pihana made this judgment based strictly on his unsubstantiated opinion.
After recently revisiting Pihana’s testimony, Steve Morgan had this to offer in response:
Pihana also alludes to the level of training and certifications the Marines underwent prior to deployment. Especially the ROE. So, really, Pihana flies in the face of Kearney’s allegation.
Pihana himself wasn’t “ready for prime time.” He was clueless or chose to ignore the Afghan penchant for lying. I worked closely with a provincial governor during my time in Afghanistan, and one of the most important lessons I took from him was his advice to me one afternoon that, “You must remember, Colonel Morgan, in Afghanistan, lying is the national pastime.”
Pihana had trouble believing the Marines took fire because there was so little impact damage to the convoy vehicles. And he doubted that the Afghans were so poor-sighted that they couldn’t hit their target. When in fact, the Afghans are notoriously bad shots because they have such poor eyesight. This is due to their poor diet, lack of vitamin A specifically, and also poor access to optometry services. That tidbit of information was in my predeployment brief. Pihana must have had a chief-of-staff waiver. I’m alive today because Afghans generally can’t shoot well at all—snipers excluded.
Pihana relies a lot on what I guess could be best described as “Pihana Logic.” He believes Marines have a lesser perception of reality than Afghan villagers. He believes Haji Qumandan Luwani doesn’t want to commit suicide. It’s just not logical, you see. I guess it was logical to fly planes into the Twin Towers and the Pentagon.
Oh! And the fertilizer? He seems to have forgotten that Tim McVeigh used a truckload of fertilizer to blow up the Murrow Federal Building. What the hell did he think a load of fertilizer was being used for? In Afghanistan, commercial fertilizer is an explosive component for some types of IEDs. More importantly, the average Afghan farmer can’t afford commercial fertilizer. In Afghanistan, fertilizer is an explosive component or used to fertilize narcotic-producing plants. They damn sure aren’t growing carrots.
Pihana’s lack of any depth of intellectual curiosity and no grasp or awareness of Afghan culture and norms is a clear indication, to me, that he was in no way, shape, or form “ready for prime time” in order to effectively conduct his investigation. But, hey, MSOC-F was just too Iraq-centric.”
The following is a chronological list involving statements from Col. Pihana during the COI, using the recently declassified and released information from MARCENT (25 Jan., 2016) as the source.
- As part of his COI testimony, Col. Pihana confirms that he was the SOCCENT chief of staff for Kearney, and that he arrived at Bagram, Afghanistan on the 6th of March, and took his first statement from the Marines in Jalalabad on the 8th of March, which is interesting because the NCIS investigation claims Fox Company was expelled from Afghanistan on the 9th of March.
- From Pihana’s sworn testimony, “As I recall, the first statement that I recorded with MSOC-F was on the 8th of March.”
- Pihana states that he conducted a similar investigation in the fall of ’06, which resulted in a criminal investigation.
- The NY Times article from March 5th shows the pressure that Karzai was receiving from protestors, who were shouting, “Death to America, death to Karzai.”
- The Washington Examiner’s 23 March article shows that the top general in Afghanistan agreed with Karzai that he would remove Fox Company.
- Pihana states that his last interview with MSOC Fox was on the 26th of March, and that the date on the final investigation he submitted to Kearney was “8 April, 2007, you are correct.” This proves that President Hamid Karzai was under great pressure, the generals concurred and made press statements on 23 March to the international media, Fox Company was ordered out nearly instantly, and yet Pihana’s investigation was not completed until 8 April, 2007, weeks after the Marines had been kicked out of Afghanistan and Fox Company’s leadership had been formally relieved of command.
- COI question to Pihana: “How are they trained, what did they understand of the Law of Armed Conflict (LOAC), Law of War (LOW), and rules of engagement (ROE)?” A: “All of the Marines were able to almost repeat back verbatim their training. You could tell they had been, at least in my impression, well trained on how they were supposed to react in those scenarios…so overall impressions were that they knew their jobs well. They knew what they were trained to do.”
- “Some of the MSOC-F Marines recall not seeing children and women…they did what they were supposed to, number two vehicle pulls into a herringbone…then he believes he’s taking fire from the Prado on the left, opens up on that vehicle,” said Pihana.
- “I believe that I finally assessed they were there (ambush site) approximately eight minutes,” said Pihana.
- “After that, the convoy reported going through a crowded area where they wanted personnel to get out of the way. It was pretty crowded, so they fired warning shots up in the air. The crowd got out of the way,” said Pihana.
- “Afghans handed me several spent rounds, which appeared to be .50 cal rounds, and small arms ammunition, which I bagged and turned in…turned out to be a SLAP (.50 cal. armor-piercing) round,” said Pihana. It was proven prior to the COI that MSOC-F never utilized any SLAP rounds while in Afghanistan. Pihana was duped by the Afghan village elders without ever inspecting MSOC-F’s ammo allocation or ammo expenditure reports, and he conveniently never mentioned analyzing the “small arms” ammunition that he also collected. The Marines from the patrol testified that the jihadis were using AK-47s, which fire a 7.62mm small arms ammunition round.
- Pihana also stated the Afghans explained they recovered some of those rounds from the Prado SUV. This shows that some of the ammunition that Pihana was provided from the locals was actually collected from the Prado sports utility vehicle, the vehicle the Marines testified they received fire from and returned fire to. However, this ammunition did not receive Pihana’s scrutiny—only the .50 caliber rounds did. An analysis later proved that the.50 caliber rounds were “armor piercing,” which Fox Company was proven to have never used. These statements prove Pihana’s negligence as an investigator and his culpability by not providing information as to the results of analyzing the small arms ammunition.
- Captain Clancy (USN SJA assisting Lt. Gen. Yarmand’s Afghan investigation) states that Lt. Gen. Yarmand mentioned “the brass casings found inside the Prado.”
- Pihana: “I learned that Afghans will routinely say they had dropped off agricultural chemicals like fertilizer…to avoid—if their vehicles were swabbed—being accused of transporting explosives.”
- Pihana was not aware that the driver of the blue Prado SUV survived, since that driver was shown in the international media as being heavily engaged by Marine rifle rounds. The driver claimed during his COI testimony—from an American base—that he had 500,000 in Afghan currency in his glove compartment (equivalent to 20 years of the average Afghan salary). He expected the U.S. to repay him for the loss of the money and the damage to his vehicle. He also stated in the same testimony that he was on his way that morning to purchase fuel, and that he had fertilizer in his car. Pihana failed to connect the dots that the driver, a self-proclaimed mujahid with the name of “commander” (Qommandan), was well financed, transporting the two primary ingredients for making a large explosive device, and who claimed he was on his way to see a man recently released from Guantanamo Bay. The man’s original testimony to NCIS of having three relatives killed in his SUV that day was later changed on the witness stand to two relatives killed in his SUV. However, Pihana totally accepted the word of this tribal leader at face value and did not believe the unanimous testimonies of the Marines and corpsmen on the patrol.
- Pihana accuses a Fox Company Marine of firing a round through his turret, causing the vehicle damage instead of the enemy. This is one of four separate conclusions that Pihana determined to completely disregard all the sworn testimonies of the Marines, the two EOD experts’ report, and the Afghan interpreter. Furthermore, one of the Marines from the 4 March, 2007 patrol provided sworn testimony during the 2008 court of inquiry that proved the bullet that was in the turret glacis was still in the glacis when the patrol returned to base.
- Then Pihana distorted the truth in order to arrive at his own opinion that the Marines both their own vehicles to create the damage to vehicle two prior to leaving for the 4 March patrol and also during the 4 March patrol.
- Pihana states that bullet damage to a Fox Company vehicle existed prior to the Bati Kot ambush. Pihana states that he received this information from a “team member,” but that “team member” was an “intelligence Marine” who was not in that vehicle. However, that “intelligence Marine’s” email on 4 March, 2007, immediately following the ambush from the NCIS investigation, stated, “It was indeed a complex ambush; we were shot at from both sides of the road.” This “intelligence Marine’s email from the NCIS investigation showed that he sent another email on 9 March stating, “We are going back to the boat, three hots and a cot.” This individual who Pihana interviewed was more than happy to leave Afghanistan and Pihana’s statement of damage to vehicle two strangely did not come from any of the five Marines sitting inside vehicle two, or the one vehicle mechanic that Fox Company had, or Major Ericksson, who was attached to Fox Company as the logistics officer. These six individuals would have known about any damage to Fox Company’s vehicles prior to departing that day, but Pihana illogically sought the opinion of someone who had no relation to the vehicle at all.
- The testimony of a United States Army Criminal Investigative Laboratory subject matter expert, during the 2008 COI, stated on six separate occasions during his sworn 2008 courtroom testimony that the damage to the window of vehicle two (images below) resulted from a round fired from either an AK or a Dragunov sniper rifle. Pihana opined the bullet impact occurred prior to the patrol leaving on 4 March, 2007. Again, Fox Company had not been issued any ammunition for either an AK or a Dragunov.
- The following sworn testimony is of the Army sergeant first class explosive ordnance disposal expert from Task Force Paladin, who wrote up the original investigation report on what caused the damage to the MSOC vehicle in the 4 March, 2007 incident. The sergeant first class was on a year tour as an EOD expert and had spent 10 years in the EOD field. Pihana, according to the following testimony, repeatedly attempted to coerce the witness to change his findings to support Pihana’s opinion that the Marines were not attacked. Following Pihana’s attempt to coerce the Army expert’s opinion, the evidence at the bullet impact site was altered, coincidentally after Pihana admitted on the courtroom record to tampering with the bullet impact site.
Pihana proved that he did not properly vet the driver of the Prado through any intel reports. The driver stated that he had fertilizer in the vehicle (Pihana already testified that he realized Afghans would state this in order to prevent a swabbing of their vehicle that could result in an explosives reading). The driver told Pihana that he was “heading to the (redacted name) house who was just released from Guantanamo Bay’s prison.”—NCIS Investigation Vol 3, Binder 1, pg 16.
- Pihana’s following statement during his sworn testimony indicates he was told by “OGA” in Afghanistan that fertilizer transportation essentially equates to bomb-making. Pihana goes on to state that Haji Liwani told him that he was transporting fertilizer. Pihana again takes the word of a known terrorist over the unanimous testimony of the Marines on the convoy.
- The following response statement from Pihana registers that he interviewed Haji Liwani Qomanndan, who actually confessed to Pihana that he was a mujahid, and Pihana still took his word over the word of all the Marines. Also, Nicholson paid Liwani, a self-proclaimed mujahid, payments equivalent to four years of the average Afghan salary.
- Comments from the defense attorney on the ODA investigation proving that, while Pihana recommended two ODA (Green Beret) members be found guilty of homicide, he never even sought to hear the outcome of that case.
- The following sworn statement from Pihana demonstrates his indifference toward his investigation of two Army Green Berets who he recommended be charged of homicide for killing a known terrorist.
- Pihana states that his “lack of combat experience” actually helped the investigation, instead of hindering it.
- Questions to Pihana: “To this day, you never read any Marine their rights.” A: “That is correct.” Q: 17 Marines and one interpreter heard small arms fire. A: “No dispute.” Q: 10 Marines “saw small arms fire.” A: No dispute. Q: Eight Marines saw enemy shooters. A: No dispute. Q: How many Afghan witnesses did you talk to? A: There were probably 8-10.
- Pihana stated, “I believe that what the Marines tell me the statements…they think is the truth in their minds, but not mine.”
- Question to Pihana that proves he tampered with evidence on vehicle two: “SFC (redacted) said he was looking at photographs after you had examined the vehicles several times with him, that he noticed the damage to the turret had been altered.” Q: On the last day of your time I viewed the vehicle, the damaged part of the turret had been altered so that the damage appeared to have been caused from something from inside of the turret to the outside.”
- In regards to his level of expertise in the types of issues he had to investigate, Pihana stated, “No I’m not holding myself out as an expert.”
- Question to Pihana: When asked by the COI panel members about a statement of the MSOC-F Afghan interpreter, on the 4 March, 2007 patrol’s statement in Pihana’s report, “Where is it?” A: “I don’t recall.”
This shows key exculpatory testimonial evidence that was intentionally omitted by Col. Pihana from his investigation. The Afghan interpreter for MSOC Fox on 4 March, 2007 was born and raised in Afghanistan. The defense attorneys did not have any opportunity to question the Afghan interpreter prior to him providing his sworn testimony on the COI witness stand.
- Again, Pihana admits that the Prado SUV driver was a known mujahid in his answer to this question: “The Prado owner you determined him to be Mujahideen.” A. “According to his (the driver of the Prado) statement, correct.”
- Pihana was not available to attend the COI testimony of the driver of the Prado, who admitted during the COI that his name of “Qommandan” translates in Pashtu as “commander,” and that his other surname, “Liwani,” translates as “crazy.”
- Q: “With the exception of ROE and EOF training discussed, MSOC did not place a training focus on discriminating fires and the effects of misplaced fires and collateral damage. A: (Pihana) “Correct.”
- Statement from Colonel Petronzio (who had been with 2nd Force Recon Co and then became the MARSOC G-3 operations officer) regarding training of MSOC Fox, shoot/no shoot and training scenarios that required the Marines to “personally identify” (PID) any valid targets prior to engaging them.
- Question from the panel to Col. Petronzio about Pihana’s finding of fact that MSOC Fox did “not place a training focus on discriminating fires and collateral damage.” A: “No, I would consider that his opinion.”
- Below is an excerpt of COI testimony from then-Colonel (now Major General) Beaudreault USMC that discusses how he had to counsel Fred Galvin—when Galvin was still a captain with Force Recon, to not train his platoon so hard. Col. Beaudreault also testified on his observations of Fred Galvin’s past training and fire discipline:
The following are COI questions and answers with the Afghan interpreter for MSOC Fox who was on the 4 March, 2007 patrol during the ambush. Remember, Col. Pihana coincidentally omitted all his testimony from his investigation, while at the same time having no problem including testimony from self-admitted mujahideen as the primary source for alleging Marines committed capital offenses. The interpreter had made a statement, which was recorded, to Col. Pihana, who omitted it completely from his investigation. Kearney took to the Washington Post, stating, “My investigating officer does not believe those were fighters. We found…no brass that we can confirm that small arms fire came at them.”
Below are questions from the court of inquiry to the Afghan interpreter for MSOC Fox who was on the 4 March, 2007 patrol, which confirm several things: The interpreter was indeed born and raised in Afghanistan, he was, in fact, sitting in the third vehicle on March 4th, and he was 100 percent certain the sound of the rounds fired at the Marines were from small arms (AK-47s).
- Q: “Where were you born?” A: “I was born in Afghanistan.”
Q: “Now growing up in Afghanistan, did you ever have the opportunity to hear gunfire?” A: “Yes.”
Q: “Where and under what circumstances?” A: “Sir, through childhood when I was growing up where the town was, there was fighting going on. You hear gunfire at nighttimes [sic]. I mean the whole time I grew up it was nothing but fighting when the Russians were there.”
- Additional question from the court of inquiry to the Afghan interpreter for MSOC Fox who was on the 4 March, 2007 patrol. Q: “[With] what degree of certainty [do] you believe [the gunfire] to be [from an] AK-47?” A: “One hundred percent.”
- When asked about the ambush patrol, the interpreter stated, “And, you know, there was a gun battle, a lot of commotion, a lot of firing.” Q: “What would you hear?” A: “Noise of gunfire, bullets.”
- COI question to the Afghan interpreter for MSOC Fox:
Q: “What were the people doing?” A: “The people were no kids or women or anything like that.”
- Q: “Can you explain what you heard at that time?” A: “I heard small arms fire. Q) What did it sound like? A) It sounds like a Kalashnikov, AK-47.”
- Q: “What did you hear next?” A: “As the shooting continued, I started hearing the small arms fire. It was, like, you know the single shots was coming. The next I heard bigger shots were fired. And it looked like HMMWV #2 was shooting.”
- Q: “All you could tell is it was coming from an AK-47.” A: “It was coming from an AK-47…The sound is familiar…I am familiar with the sound of an AK.”
- Q: “Specifically, do you remember ever being asked any questions by an Air Force Colonel by the name of Colonel (redacted)?” A: “I believe so, I think the name is familiar, Colonel (redacted) that is the investigator that came in and talked to me.”
- Q: “Do you remember providing any statement to him?” A: “Yes.”
- Q: “The American reaction to the attack…did you think there was anything strange about it?” A: “No, sir.”
- Q: “So you don’t think anything strange at all about what happened?” A: “No.”
- Q: “The enemy there in the area, was it Taliban, was it al-Qaeda, or someone else?” A: “The locals briefed us in this area that the Taliban and also the HIG people in that, the sympathizers of the people in that area.”
- Q: “So when you hear the media reports of 19 or 50 Afghans killed, what did you think?” A: “I would say it’s a false report. It is just a false statement.”
- The following statements from the President of the Court of Inquiry confirm that Col Pihana omitted the Afghan interpreter’s entire statement from his investigation.
- Question from the COI Panel Members to the Afghan interpreter: A: “(in regards to Afghans often falsifying reports of civilian casualties) everywhere this is a problem…they ask for money, claiming things which is not correct. You know, we have been in that kind of situation before.”
The testimony of the Afghan interpreter was not the only one in which Col. Pihana recorded and asked the individual to sign Pihana’s statement after the interview. It happened to others as well. This also shows two other points: first, that the Afghan interpreter who continued to deploy in support of U.S. military combat operations in Afghanistan had a great deal to lose by providing his testimony of what happened and of the Afghan culture. And second, that Col. Pihana, after receiving this unbiased testimony, chose to omit this exculpatory evidence in his investigation to Kearney. Again, in Kearney’s current lecture circuit, he is paid to make speeches where he proclaims, “You need to leave your warm FOBs” to inspect what is going on, yet that apparently rejects evidence of his own prior actions, in which he recommended charges of homicide—punishable by the death penalty—in a second case against special operators in a six-month period of time.
Ultimately, Colonel Pat Pihana’s COI testimony showed the following actions on his part as an investigator for this case, which ultimately prove his obstruction of justice:
- Evidence was suppressed.
- Witnesses were coerced.
- Evidence was tampered with.
- The colonel showed negligence in not seeking to vet witnesses (especially when they mention they are mujahideen, purchased fertilizer, and were visiting Gitmo parolees that morning.)
Part 4 – NCIS investigation and interrogation roadblocks
Part 5 – Major Ukeiley: The internal assassin
Featured image courtesy of Fred Galvin.