Extreme Prejudice: Unethical conduct by NCIS and prosecutors to convict innocent Marines

This is part four of the untold story of the men from MARSOC Fox Company, and the leadership that failed them.

As covered in part 3 of this series, Colonel Pihana commenced his first interview of a Marine from MSOC Fox on 8 March 2007, as he testified in the COI. The NCIS Investigation registered that MSOC Fox was ordered out of Afghanistan the following day on 9 March 2007. However, Col Pihana’s Article 15-6 investigation was not completed until 5 April 2007, long after Fox Company had been expelled from Afghanistan. Fox Company’s leadership had been relieved with adverse fitness reports by LtCol Montanus based upon conjecture in the international media, as well as MARSOC Commander MajGen Hejlik sending eight different Fox Company Marines back to Camp Lejeune based upon hearsay as this report had not been completed until the eight Marines were already in Camp Lejeune.

The following document is Major General Kearney’s endorsement on the Article 15-6 investigation, which Col Pihana conducted on the actions of the MARSOC 7 Marines. The letter is dated 5 April 2007.

The Marines returned home to read the front page cover of the Washington Post, which contained statements from a member of Congress, Adam Smith (D-WA), who condemned the MARSOC 7 in front of their general, without the MARSOC Commander MajGen Hejlik exercising his moral courage by defending their constitutionally guaranteed right of presumption of innocence to Congress.

Together, the reports contain “more than sufficient evidence of wrongdoing” by the Marines, said Rep. Adam Smith (D-Wash.), chairman of the House panel that oversees U.S. Special Operations forces. “There is very troubling information in those reports that must be investigated,” said Smith, who was briefed Thursday by Maj. Gen. Dennis J. Hejlik, head of the Marine Corps Forces Special Operations Command. These unethical statements were publicly made by a member of Congress during an ongoing criminal investigation, which continued the premise of a very long, politically charged and extremely biased investigation started by the President of Afghanistan urging to remove Fox Company and was aggressively supported by Col Nicholson’s emotionally charged request to remove Fox Company.

One of the two NCIS agents who testified during the COI confirmed that following the Col Pihana preliminary investigation he received a warning order between 4-6 April 2007, which stated that their office would conduct a criminal investigation into the MARSOC case.

The second NCIS Agent testified at the COI that the investigation was directed from the top by their headquarters in Washington D.C. Of note, NCIS’ headquarters are in Quantico, VA. However, it is most likely true that influenced the conduct of this investigation that would come from within Washington D.C., as the NCIS Agent stated.

Below is the NCIS Investigative Plan, which they developed to focus on several key facts which describe bias.

NCIS immediately utilizes terms such as “victims” prior to departing from the United States, showing an immediate bias in their mindset of perceived victims during their planning stages of this investigation.

NCIS’ Investigative Plan repeatedly states the critical nature of conducting “expeditious and thorough interviews and documentation of evidence” at the death scene, or it will result in “degradation…ambiguity…and hamper definitive investigative conclusion.”

The lead NCIS Agent testified during the COI that they all departed for Kuwait, where Fox Company had been sent. The Marines became the first subject of interviews for NCIS throughout the month of April.

NCIS first flew to Kuwait to interrogate Fox Company as a captive audience at their camp, which was followed by arriving two months after the 4 March 2007 ambush to investigate the Afghan witnesses. The NCIS team finally arrived at the “death scene” of the ambush in Afghanistan on 9 May 2007. This clearly did not follow the NCIS plan of “expeditious and thorough interviews at the death scene.”

The NCIS Agent stated that once they finally arrived at the ambush site in Afghanistan they only had “60 minutes on the ground” to conduct their investigation, which went opposite of their plan for a “expeditious…thorough…documentation of all evidence.”

The NCIS Team in Afghanistan did determine the following findings of fact regarding the untruthfulness they experienced in interviewing the Afghan witnesses.

Regarding what they would likely encounter during their investigation, an intelligence source in Afghanistan met with NCIS notifying them of the Afghans lying, at the start of their investigation.

The lead NCIS Investigator recalls being briefed by an Army Staff Sergeant, while in Afghanistan, of the following intelligence report of the enemy threat in the Bati Kot District and Mar Koh Bizzaar.

The lead NCIS investigator testified during the COI that Afghans were told to lie to NCIS and the Americans in order to receive compensation.

The NCIS lead investigator testifies of his knowledge of more than one Afghan who was interviewed and told to lie in order to receive compensation.

The COI testimony below shows additional false claims of injuries made by the Afghans against the Marines to the NCIS Agent.

The lead NCIS Agent testifies that he made no effort to corroborate any interviews of Afghans with intelligence reports throughout their five week long investigation in Afghanistan, or throughout their nine month period investigative period prior to the COI.

The lead NCIS Agent testified very differently about their actions of researching the names of the Marines involved in this case prior to him departing North Carolina en route to Kuwait in April 2007. The first thing he did within six days of being assigned this investigation was to, “do various background checks on the Marines who were named.”

The NCIS lead investigator interviewed the driver of the Blue Prado, who had self-reported to NCIS of being a Mujahedeen, which was shot multiple times, and somehow did not find any of the following statements out of the ordinary.

During 2007, the US Dollar equivalent of 500,000 Afghani currency was valued at over $1,000,000. The driver of the vehicle, a self-proclaimed Mujahedeen, was not found by NCIS to be suspicious even though he says he had an unusual amount of money, equal to 20 years of an average Afghan’s salary, in his vehicle that morning along with a statement that “We are purchasing fuel and after we sale the fuel (sic).”

This same driver of the Prado made the following statement to NCIS, which was not corroborated by his earlier statement that the driver made to the New York Times.

The following question was addressed during the COI in regards to a contradictory statement that the driver of the Prado previously made to the New York Times regarding the explosion.

The driver of the vehicle made a statement during an interview with NCIS in May 2007 that he had a fourth passenger in his vehicle when the vehicle was shot, and that he was the only survivor. The driver’s testimony during the COI was that there were only two passengers in the vehicle and both had died. The decrease in the number of dead relatives killed in front of the driver in his own vehicle did not raise the suspicion of NCIS as being inconsistent or suspicious. This driver previously told Col Pihana that he purchased “fertilizer”, a main ingredient along with fuel, which he also admitted to purchasing that morning, in making car bombs. Additionally the driver told Col Pihana that he was on his way that morning to meet with a friend of his who had recently been released from Guantanamo Bay, Cuba. Despite all of these facts “Dick Tracy” down at NCIS failed to connect any of these dots and form any conclusion that Haji Liwani Qommandan was even a suspicious character, prior to allowing Colonel Nicholson to pay him a solatia payment equivalent to 4 years average Afghan’s salary to a terrorist known within the intelligence network as being active.

Retired USMC Master Sergeant James Crawford, a well-respected veteran of the intelligence community, had this to say about Haji Liwani’s background, “He was commonly, easily known in the intel community as a terrorist. Anyone within the intel community knew this. It was ignorance on the part of NCIS and the investigators to not notice this important fact. Just because they did not have direct access to look this information up on their own does not excuse them from the fact that they should have thought to contact someone in the intel community to verify Haji Liwani’s background. It should have been a no brainer.”

Crawford also added, “The first time I was interviewed by NCIS, in Kuwait, it was very apparent to me by their line of questioning that they were not seeking justice, but rather were trying to find proof of what they had already set their minds on. Their motives and the way they operated had a real “cowboy” feel to them. They had a very accusatory tone to everything they did. There were a few intel “sources” that were sympathetic to the NCIS agenda and they played ball, but after it became apparent that I wouldn’t play ball I was never asked to take the stand in the COI. There was a looming threat that NCIS would only bring in sources that they could find fault with.”

The lead NCIS Agent testified during the COI that he was, “not sure of anything” concerning the events surrounding the Prado and that the NCIS agent’s own statements were based on opinion and “not factual.”

The lead NCIS Agent testified regarding a summary of his findings regarding the Afghans, who he interviewed and took statements from, as “pretty consistent.”

PDF document of the 90 contradictory statements by the Afghan locals who NCIS interviewed.

After having the chance to review the source documents used in this article, Steve Morgan (one of the COI panel members) had this to say:

First of all, I’m disappointed in General Dunford’s responses to the congressional inquiries. At the heart of all of this is a Marine officer (Fred Galvin) trying to take care of his enlisted Marines. I simply do not believe that our former Commandant took the time to personally, “…carefully review(ing) this case.” My belief is the SJA wrote this up, the CMC reviewed the letter(s) and an admin gunny ran it through the CMC autopen. Given the time constraints Flag Officers are always under, I know this is a pretty standard response but it adds to the continued appearance of indifference of senior leaders toward our enlisted. And frankly, it kind of sullies the office of the Commandant. Unlike our sister services, Marines have a special reverence for our “High Leader”. These Marines deserved a better response. And so did the citizenry of our country, who technically the CMC was responding to, through their elected congress members.

As for the testimony of the NCIS agents and the supporting documents: Well, there the documents are, read them and weep. I remember being very uncomfortable when the NCIS agents testified. It just seemed to me that they were out to get a case on the Marines as opposed to getting at the truth of what really happened. As I recall the body language of the agents during testimony, they acted hinky about the whole thing. It was as if they were above being questioned and resented being challenged on their techniques and methods. It frustrated me to no end that all these investigators (most egregiously Pihana) were so easily taken in by so many Afghan lies, and disbelieved Marines who had no reason to lie. My frustration was, and still is, that we (military/diplomats/NGOs/et al.) continue to fail to recognize we’re dealing with an Eastern culture driven by a religion that condones lying to the infidel. Drunk Marines? Cruising down the avenue shooting women, children and seasoned citizens? Making poorly vetted solatia payments? Stains on our honor? Deeply ashamed? Perfect, let’s make a case against our Marines or Soldiers. Just fill in the blank. Afghanis exempted.

As for the young NCO who testified he would hesitate to fire his weapon? That was me that asked the question. As an officer and Marine who has had the privilege to stand in front of Marines and Soldiers in combat, my heart nearly broke to hear those words. These Marines were failed by a perfect storm of dirty officers.”

Meanwhile, the Marines provided their testimonies to NCIS throughout the investigation, and they were unanimous in the events which happened of entering the town of Bati Kot, a car bomb exploding, contact with the enemy on the south and then north side of the road, no Marines dismounting, moving out of the ambush site and receiving more gunfire followed by a crowd blocking the convoy’s path, gunfire being fired overhead to disperse the crowd and returning to base to conduct a debrief, and receiving immediate reports of this in the press. Each Marine and Corpsmen on the patrol stated the above facts, which were also reinforced with Major Galvin’s polygraph, but the NCIS team that was appointed from “D.C.” did not believe any of the testimony from the Marines. Instead NCIS accepted the inconsistent testimonies of the Afghans – some of which were admitted Mujehedeen – at face value.

The lead NCIS Agent testified during the COI that he developed his own conclusions regarding the Marines’ statements. In regards to whether they were involved in a complex attack he stated, “I personally do not believe that.”

The other NCIS Agent who testified at the COI provided his opinion that the Marine’s testimonies had “inconsistencies” based on how they viewed the men in the Prado shooting at the convoy.

The following statement from a Panel Member of the COI to the NCIS lead investigator also highlights NCIS’ bias in their view of the Marine’s providing “inconsistent statements.” The NCIS Agent testifies that he was, “requested to come up with some inconsistencies from reviewing the statements.” The premise of the COI was that it is by JAG instruction a, “fair, impartial and unbiased process” and the NCIS agent did not create any similar list of “inconsistent Afghan statements for the court.” The lead NCIS agent viewed Marines who elected to invoke their constitutionally protected rights under the 5^th amendment as being, “inconsistent.”

The line of questioning from the President and second senior panel member of the board to the NCIS Agent addressing his percieved inconsistencies with the Marines testimony who were shooting the Prado shows that the NCIS Agent’s assumption was entirely unsupported by any facts. This does show the biased treatment that the inconsistent statements of the Afghans were accepted at face value and the consistent statements of the Marines were rejected by the NCIS Special Agents. The following comment is to the NCIS Agent and his response that the Afghan statements are, “not factual statements.”

During the nearly one-year case, NCIS and the government prosecution utilized 45 criminal investigators, investigative specialists and government attorneys in their attempt to prosecute the two Marine officers in Fox Company. This resulted in bringing the two senior officers from Fox Company into legal offices at Camp Lejeune on Friday night, 19 October 2007, and informing them both for the first time that they would be named parties in a Court of Inquiry, which the government intended to start within two weeks on 1 November 2007.

The evening of the Marine officers being notified that they would be sent to a Court of Inquiry in two weeks, they received multiple boxes with binders filled with 4,500 pages of the NCIS investigation to review over the next two weeks, as evidenced in the below statement of the prosecuting attorney during the COI. The two Marine officers who were defendants also received a “protective order” stating that the COI was to be a “fair and impartial hearing” and that the parties in the COI were “prohibited” from making any release of information to the media. This gag order, combined with issuing 4,500 pages of information to the named defense parties, led to a delay as the prosecuting attorneys had not factored in that the civilian attorneys would require obtaining a security clearance. This evening in October 2007 was the first time that either officer being accused was afforded any military defense counsel. The following MARCENT document describes how the COI was directed to be a, “fair and impartial hearing,” and also describe the intention of MARCENT to gag the personnel involved in the process from providing information to the media.

This delay of the trial from 1 November 2007 to 7 January 2008 to allow the civilian defense counselors two months to obtain their security clearances also allowed the government prosecuting attorneys to continue to interrogate Marines in a way that crossed all ethical boundaries as well as the Convening Authorities lawful “order” of a “fair and impartial hearing.” Two Fox Company Marines who legally immigrated to the United States and voluntarily signed up to serve during a time of war were ethnically intimidated repeatedly during multiple interrogations in December 2008.

These Marines testified to this during the Court of Inquiry, and have also testified to this on television since the Court of Inquiry.

This same Marine, when questioned by a senior panel member of the COI, further described how NCIS intimidated him and coerced his statements throughout multiple unethical interrogations.

Another Marine of Latino descent was unlawfully lied to by the prosecuting attorneys who very aggressively focused on him to take a polygraph test after he was notified that taking a polygraph in your non-native language will likely lead to a false reading of deception indicated for the test. This testimony again shows that NCIS and the prosecuting attorneys disobeyed both the JAG instructions and the Convening Authorities’ direct and lawful order of conducting this in a “fair and impartial” manner. This witness confirms that the prosecuting attorneys participated in and conducted their interrogations.

This witness continues to describe how a Marine Colonel participated in his interrogations, and how NCIS and the prosecutors accepted the Afghans statements at face value but the Marines were interrogated with extreme prejudice. This is clear by reviewing how the following interrogation of a Marine from Latino descent was anything but, “fair, impartial or unbiased.”

Another Marine also testified when asked the following question in the COI by the prosecuting attorney that he was interviewed by the prosecutor when he was at NCIS.

As the Court of Inquiry began on 7 January 2008 in Camp Lejeune, the defense attorney raised the issue that they submitted requests since December 2007 to observe the audio and video tapes of the NCIS interrogations, which have continually been denied by MARCENT and NCIS to this day, over 8 years later.

From the first day of the defense testimony on 7 Jan 2008, the COI states, “NCIS has refused to provide those video tapes… they (NCIS) had no hesitation with providing us with video tapes that they made of Afghani citizens…but for this particular matter, for some reason, they’re not going to give us that. And it’s a very simple reason why we want it. Because we have summaries of these interviews, that are not transcripts.”

Throughout the trial the release of these NCIS tapes was repeatedly addressed, as discussed in the following testimony during the questioning of the lead NCIS Agent by the defense attorneys. To this day, despite years of request through private attorneys HQMC, MARCENT and NCIS have continually refused to produce any of these interview tapes of the Marines from Fox Company.

The following opening remarks by the defense counsel show the biased approach that was utilized by the prosecution and NCIS in their failure to follow Judge Advocate General (JAG) Instructions 5830.1A as of 31 October 2005 governing Boards and Courts of Inquiry, which mandated that Courts of Inquiry shall proceed in a, “fair and unbiased” manner, yet the prosecuting attorneys interrogated Marines using coercion and deception in complete violation of the ethical guidelines of Marine officers and staff judge advocates.

The Marine Colonel who served as the Legal Advisor during the Court of Inquiry registers the different style of treatment that the MARSOC Marines were subjected to during their interrogations by NCIS and the prosecuting attorneys, completely different than the treatment that the Afghan witnesses received.

An ABC news video below shows how the Defense attorneys had requested NCIS interview video and audio tapes of their interrogations since 2007 and to this day, not one of these tapes has been provided. The following 25 Dec 2015 video from ABC shows why these NCIS interrogation tapes will likely never be released without media and political pressure. The footage from 4:10-4:28 shows how one Marine from the 4 March 2007 patrol had been threatened during the interrogations of having his family deported unless he cooperated with the interrogations.

http://abc7.com/news/marines-cleared-of-killing-afghan-civilians-say-murder-stigma-remains/1135963/

The following testimony from the COI again reiterates the fact that of how through the COI the prosecution and NCIS unfairly and in a partial manner coerced the Marines during multiple lengthy interrogations, ignored consistent testimony of the Marines, and fully accepted the inconsistent testimony of dozens of Afghan witnesses who lied.

The prosecuting attorneys throughout the entire trial showed their biased and partial tactics that were very apparent through their opinionated closing arguments, which urged the members of the court to ignore the facts and believe the Marines had the mindset of, “Go-fever” and pursued a passion for blood-lust.

For several years Major Fred Galvin officially requested to have the transcripts for the Court of Inquiry released by the convening authority MARCENT. He relentlessly contacted the MARCENT SJA about these transcripts and NCIS audio and video tapes to include hiring an attorney and working with multiple members of Congress for the past several years to assist in obtaining these records. Many of the records have now been released but the most crucial testimony of two key individuals during the trial, as well as the preceding NCIS interrogation tapes have not had their testimonies and e-mails released by MARCENT’s SJA office.

Major Galvin, following his retirement, has continued to set the record straight about what his Marines did in combat. He has sought the assistance of the four current US Senators from Kansas and Missouri, along with Congressman Jones who have all contacted the Commandant of the Marine Corps about these issues as recently as this past year.

Letter from KS and MO Senators to SECNAV Mabus and General Dunford

Congressman Walter Jones’ letter to General Dunford

General Dunford’s response to Senator Blunt’s letter

Maj Galvin (left) and PFC Meacham, a WWII Marine Raider who fought until the end of the war.

Fred Galvin takes exception to General Dunford’s response to multiple members of Congress, stating that the response from General Dunford (who now serves as the Chairman of the Joint Chiefs of Staff) to a member of Congress does not accurately represent the facts of this case as he responded to Senator Roy Blunt. Galvin disputes the General’s official statement and argues that citizens who read this article should examine for themselves if Dunford’s assessment of “I am confident that the Marine Corps’ investigative procedures worked effectively in this case and led to the appropriate conclusion.” Galvin also disagrees regarding another fact which has also not happened in that as Dunford stated on June 2015, “Once the review of approximately 6,000 pages in the COI record is completed all releasable documents will be available pursuant to the FOIA requests.” Finally, Galvin also disagrees with how the Marine Corps has responded to General Dunford’s response in regards to the prosecuting attorney’s conduct during the COI of “two Marine Corps judge advocates, I have directed my Staff Judge Advocate to obtain the specific allegations and to determine whether further inquiry or remedial action is warranted.”

The Staff Judge Advocate of the Marine Corps responded to Major Galvin on 14 Jan 2016, 7 months following Dunford’s response stating that he, “considered the information you provided and statements from the covered attorneys and their supervisors. After careful consideration, I determined the available evidence fails to support any finding that probable cause exists.” The SJA of the Marine Corps provided this response after seven months and without ever contacting a single Marine who was interrogated by the Marine attorneys.

Galvin requests that patriotic citizens address their concerns of the Marines who testified regarding their interrogation by the Marine prosecutors and their violations of the Convening Authorities’ lawful order of having a “fair and impartial” process. Those patriotic citizens can contact their congressmen and senators, and request a formal public hearing where the Fox Company Marines who were interrogated have the opportunity to publicly speak in front of the press regarding specifically how they were interrogated and the extent that the interrogations and libel has caused in their health, profession and families.

http://www.senate.gov/senators/contact/

http://www.house.gov/representatives/

Congressional switchboard: 202-224-3121