This is part three of the untold story of the men from MARSOC Fox Company, and the leadership that failed them.
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.
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This is part three of the untold story of the men from MARSOC Fox Company, and the leadership that failed them.
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.
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.
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.
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).
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:
For more information on this case, you can read the full series here:
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