Apache Attack near Karbala

I (www.jamesphillipslaw.com) was on the Assault Command Post (ACP) with the 101st Airborne Division during the ground offensive during Operation Iraqi Freedom. For a JAG Officer, I couldn’t imagine a better position.  I was a relatively junior officer, a first term captain, and I had landed a gig where I was doing what almost every JAG Officer dreams about.  I was with the 101st, calling the legality of fires in combat and working in the Command Post with MG Petraeus.

The 101st, commanded by MG Petraeus at the time, had two command posts.  The more mobile post was the ACP which moved quickly from one position to another.  The ACP was designed to be a tactical command post that was minimally staffed, but able to command the 101st for a day or two, while the Main CP set up.  The less mobile main command post followed closely behind, but was harder to set up and took a longer time to position. So, MG Petraeus was with us for most of the actual fighting.

The ACP had one staff member for each section of the command.  S-1, S-2, fire team, etc…, were all represent by a relatively junior officer in the ACP. The artillery officer that briefed the fire missions in the ACP was appropriately name Maj. Gunn.  He was a barrel chested Hispanic man, who took some time to warm up to me initially.  Typical of any artillery officer, he couldn’t understand how a JAG a place in a combat command post.  I had to agree with him and eventually, he and I became friends. Over time, I became “Harm” named after the character on the TV show JAG.

After the first ten days of the war, we had convoyed up into Southern Iraq.  The 101st was following closely behind 3rd ID and we had set up our ACP  somewhere outside of the city of Karbala. 

Now, before we left Kuwait, my mom had sent me a care package and in that package was chocolate gold.  I had approximately two hundred chocolate covered coffee beans.  Since we were not allowed the normal stimulants, I was forced to use the magic beans to keep me awake, and that they did.  I kept them safely hidden away during our assault on Iraq, because I knew that at some point I would have to stay awake for a very long period of time.

I started a 48 hour shift in the ACP the day before the 101st was going to do a helicopter assault on Karbala.  The day before, an attack helicopter assault had taken place, and during the assault of their 32 helicopters, 29 had come back filled with holes.  I believe two of the helicopters were actually shot down and the others were inoperable after the attack.

The Apaches had been all hit by small arms ground fire.  The issue was that during the First Gulf  War, Saddam Hussein had learned a little trick.  When our helicopters were passing over, if everyone on the ground fired their weapons into the air, they could fill the sky with lead.  Shear volume of bullets was bound to cause damage to many of our Apaches.  This is what had happened to the first air assault.

The problem was that the reading of our Rules of Engagement (ROE) passed down from the all knowing CENTCOM command seemed to suggest that the only way we could fire on civilians or areas with civilian on the ground was in self-defense.  Now, I did not then or now believe that that was the only analysis that could be used.  The helicopter pilots during their tactical briefing prior to flying into Karbala believed that they could not fire their HELLFIRE missiles because it was a disproportionate response to the small arms fire from the ground.  I did not agree with this interpretation of the ROE.

When we planned our air assault mission, I was asked by MAJ Gunn what was the legality of a SEAD fire mission.  The purpose of a seed fire mission is to create a firing corridor for the Apache helicopters.  The essential idea is that artillery and air strikes are laid down just a couple of minutes prior to the air attack.  The blast from the artillery and the air strikes keeps all enemy combatants in their holes and heads down so the helicopters can pass overhead.  MAJ Gunn was unsure of the legality of a SEAD fire mission but he felt it was essential to the ultimate success of the mission.

I agreed that it was both necessary and legal.  Part of this analysis was helped by the fact that by the time I had to make the call, I had been eating chocolate covered coffees beans, one after another for over two hours.  I was wired. But for me, the basic idea was that for a helicopter, laying down SEAD fire was a measure of self defense.  If a helicopter, which is a fairly vulnerable weapon platform is moving to contact with the enemy, there is a necessity to getting it safely to position.  If it is known that the enemy will fire prior to them getting into position, there is an argument that a SEAD mission is a mission of self-defense.  There is also another argument and that is that SEAD missions are not designed to kill enemy combatants or civilians, although this may be collateral damage and had to be balanced with the need for the mission, the SEAD fire itself is only designed, at least for this particular mission, to keep the enemy combatants from being able to fire upward.  In the ROE, this was neither self-defense nor an anticipatory attack and had fallen into a loophole in the ROE analysis.  Now, this may have been fixed later, but at that time, the JAG lawyers had not resolved the problem.

As the mission started, I watched as each helicopter was in position and flew toward Karbala.  The SEAD mission blasted holes in the corridor and the helicopter pilots reported back that they were not receiving any ground fire.  All of our helicopters came back that night.  We lost no pilots, no aircraft and there were only a few bullet holes to fix.  As a JAG, I knew that the call I made was correct and essential.

I just didn’t sleep for the next week.

SSG Warner heads home

I (www.jamesphillipslaw.com) spoke to SSG Mitch Warner’s family on Monday morning.  They solidly stand behind Mitch and are now beginning to gather the evidence required for us to put on an appeal for SSG Warner.  In speaking to them, they spoke of their disappointment with the US Army and the decision-making that lead to the death of detainee Ali Mansur by LT Behenna.

SSG Warner is now headed to Fort Sill, OK, where he will serve the balance of his seventeen month sentence.  He will be close to home and at least he will finally be finished with his combat tours.

One of the questions taht I have never gotten an answer for in this case is Why did LT Behenna’s higher headquarters and unit release Ali Mansur to 5th platoon?  This seemed extremely odd to me.  5th platoon had lost soldiers and had several wounded just a couple weeks prior.  Ali Mansur was a suspect in those killings and that IED attack.  5th platoon had gone out and picked Ali Mansur and took him into the detainee detention facility as a suspect in the death of the soldiers.

So, why in the world, when the higher ups had decided that Ali Mansur had no information and couldn’t be held for the attack, did the chain of command use the same platoon that picked him up as a suspected terrorist to drop him off to the local population?  There are no good answers.  One answer would be that the Chain of Command wanted LT Behenna to have someone kill Ali Mansur.  If there was a deliberate and conscious knowledge of Ali Mansur’s alleged AQI association, the COC may have thought that LT Behenna would find a way to have Ali Mansur killed.  They could have dropped him off with those Iraqis that wanted him dead.  They could have faked an incident or escape.  The expectation may have been that 5th platoon would find a way to get the job done.

But, I am not much of a conspiracy theorist.  The more likely answer is that this was just stupid negligence.  The Chain of Command should have known that there would be an issue with the drop off of this detainee, but they were just too busy or distracted to think of the clear implications of this drop off.

Either way, this was an event that should have been avoided.  The command had a responsibility to know that soldiers that have been under attack and have suspected terrorist in detention for those attacks are not the soldiers that should drop that detainee off to the local populace.  This is a no brainer.

SSG Warner and LT Behenna are now both serving time for a death of a detainee.  The trials of both men were complicated by the fact that they each knew that Ali Mansur was a suspected AQI member.  LT Behenna did have justification for the killing, but it probably wasn’t the justification that the US Army wants to hear.  Regardless, this whole event should have been stopped before it ever got started.  Another platoon should have done the drop off.  The blame for the shots being fired can be laid at LT Behenna’s feet, but the death of Ali Mansur and the conviction of two US Infantrymen can be laid at the feet of the chain of command

Behenna’s Verdict

I (www.jamesphillipslaw.com) was not able to be at Fort Campbell to hear the members read the verdict in US v. Behenna.  My co-counsel in US v. Warner and I had made a few predictions about what we thought the verdict might be.  We both thought since the verdict of guilt had been a compromised verdict and the panel had not convicted LT Behenna of premeditated murder that the panel was looking for a way out of having to sentence LT Behenna to a lot of jail time.  My co-counsel thought the panel would give LT Behenna seven years of confinement.  I thought they would give him twelve years.  We were both wrong. The military panel sentenced LT Behenna to twenty five years of confinement.

I tend to have faith in juries and military panels to make right decisions.  I was surprised that the sentence was so high.  Despite the evidence that Ali Mansur was possibly a member of Al Queada and had involvement in the death of several of LT Behenna’s men, the panel made up of relatively younger officers decided to sentence LT Behenna to a sentence that was appropriate for murder.  They did not back away from the nuances of the case, but instead voted for what they saw.  This sentence shows that they considered the death of Ali Mansur to be a major crime.

In representing SSG Warner, we had considered taking our case to trial.  Since our client was not guilty of premeditated murder or accessory after the fact, this very well could have happened we not be able to come to an agreement with the Government. But, in going to trial, one of our concerns in representing SSG Warner was that the panel may look at the pictures of Ali Mansur’s dead burnt body and not be able to excuse the actions of our client.  We were concerned that looking at the horror of a killing the panel would want to assign blame and we did not want them to mistakenly assign it to our client.  We also didn’t want the panel to sentence our client because they may assign too much culpability.

Jack Zimmerman, Behenna’s lead counsel, was probably concerned about many of the same issues.  In his case, that appears to be what has taken place.  The military panel did not buy the repeated references to Ali Mansur being a “terrorist” and a “bad” man.  There was certainly evidence that this is exactly what he was, but there was also evidence that at the time he was shot, he was naked, in the control of LT Behenna and pleading for his life.

In the end, the panel had to decide whether or not LT Behenna had shot a human being point blank in the forehead or whether or not this was “just an Iraqi.”  The tempation for the defense is to say that this is just an Iraqi.  Who cares?  How many times has an Iraqi been killed in one combat operation or another?

In this case, the Iraqi was under the care and control of the US forces.  As CPT  Poirier, the lead prosecutor in our case, said in her closing argument in US v. Warner, this is the type of crime that requires that “we” send a message to soldiers not to commit these types of battlefield attorcities.  Now, in our case, I believed that she was wrongfully characterizing our client’s conduct, but the point was made nonetheless. Soldiers must follow the rules regardless of their personal vendettas.

In LT Behenna’s case, the panel seemed to send a message that officers cannot decide for themselves how they are going to distribute justice.  If we as a nation are going to occupy and administer justice in Iraq, then we will require our officers to follow the law.  No matter whether you agree with the panel’s decision to heavily sentence LT Behenna or not, there is certainly a requirement that we not lead Iraqi citizens into the desert, strip them naked and then shoot them point blank in the forehead.  The panel has sent that message loud and clear with a twenty five year sentence.

Of course, both US v. Warner and US v. Behenna will continue to play out through the appeal process and to some lesser extent in the media.  Jack Zimmerman and the defense in US v. Behenna have filed a motion for a mistrial, but based on this verdict from this panel, they may want to watch out what they ask for.  This panel looked like the best bet for a jury nullification.  Young officers, with relatively junior rank for a military panel, who were probably fairly independent, and yet in the end, they sentenced Behenna to 25 years.  A more senior officer panel may have given him more time.

More on SSG Mitch Warner and his appeal process

I am the lead counsel in US v. Warner. I am a military lawyer and nothing in this blog is meant to be construed as developing an attorney-client relationship between me and you.  If you want me to be your lawyer, contact either –www.jamesphillipslaw.com and www.ucmjlawyer.com.  Also, this update is written with the permission of my client SSG Mitch Warner.  He has consented to waive any attorney-client privilege to help clear his name.

For anyone who has read my blog on SSG Warner, you will know that I believe in SSG Warner as both a soldier and a citizen.  Over the time I have defended him in this Court-Martial, I have come to respect him as a person and as a combat veteran.  He deserves better than he is getting from the US Army.

Mitch Warner was convicted of several offenses and is currently beginning to serve his 17 month sentence.  He was convicted of the maltreatment of a suspected Al Queada member who may have been linked to the death of several members of SSG Warner’s platoon.  At trial, Ali Mansur, the Iraqi detainee that was ultimately killed, was made out by the government to be a humble citizen of Iraq who was unfairly treated by our US Soldiers.  There is evidence that this is just not true.  One of the reasons that this entire tragic event took place, which resulted in the killing of Ali Mansur by 1LT Behenna, was that Ali Mansur was suspected in participating in the killing of American Soldiers near COB Speicher.  5th Platoon, the platoon the both 1LT Behenna and SSG Warner, were assigned to, took significant casualties just a few weeks prior to the May 16, 2008 death of Ali Mansur.  Mr. Mansur was picked up by 5th Platoon and was detaineed as part of the investigation of those deaths.  For a reason unknown to the defense team, Ali Mansur was order to be released from custody and was to be returned to his home by 5th Platoon.  Now, it doesn’t take a genius to know this was probably not a good decision on the part of the chain of command.

For SSG Warner, these facts do not change the outcome of his trial.  He now must begin to ask for both clemency and to appeal his sentence.  In the Army, the appeals process is two-fold, (1) the convicted Soldier may appeal to the convening authority, and (2) after that, they may appeal to a higher level court.

The first part of the process is termed as 1105 and 1106 matters.  Essentially, this will allow the defense team to submit additional matters in mitigation to the “convening authority.”  In the military, a military judge makes a determination as to the appropriate sentence in every judge alone case.  After the verdict is read, it still must be approved by the convening authority.  In this case, the Commander of the 101st Airborne Division (AASLT) may take action on the case and has the option of lowering the sentence.  It is his discretion based on matters submitted by the defense and a recommendation submitted by the Staff Judge Advocate of the Post. 

In Mitch Warner’s case, we will ask the convening authority to lower the sentence.  SSG Warner has distinguished himself as a soldier and in this case, based on the nature of the offenses, SSG Warner should not serve any additional time in confinement.  SSG Warner has an impeccable service record, to include Air Assault instructor, three tours in Iraq, numerous firefights and heroic actions in combat.  In addition, he has spent the past months defending himself against a charge of premeditated murder that he was not guilty of.

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or significant confinement, the case is reviewed by the Army Court of Criminal Appeals.  In this case, both the type of discharge and the amount of confinement warrant an appeal.  Although SSG Warner would be afforded a military lawyer for his appellate defense, we would like for him to be represented by a team of civilian lawyers.  If you want to help with this endeavor and participate in the ongoing legal defense of SSG Warner, you may donate money to the Phillips Law, PLLC Trust Account.  Call our office at (931) 552-5679 for instructions on how to get involved in this case.  Get the word out to everyone you know.  This is a soldier that we should not forget and the more the better.

Miranda in Iraq

Right after Bush announced “Mission Accomplished,” in 2003, I was serving with the 101st as a JAG in Iraq.  After securing Baghdad, Gen. Petraeus convoyed the division North to Mosul.  By July, I was heading up what we had facetiously dubbed the Mosul Office of Judicial Operations (the MOJO). Our mission was to reestablish a judiciary in Northern Iraq.  www.jamesphillipslaw.com

My day to day operation consisted of going down to the Mosul courthouse to supervise the Iraqi judges (all BAATHISTs).  Funny enough, the statutory codes that the Iraqis had on the books were quite democratic.  They were based on the British System.  But, although the system looked good on paper, the actual workings of the judicial system was corrupt and about what a person would expect of Saddam’s regime.  Generally, a detainee or criminal would never get to the courthouse.  Once detained, the police would sweat the family for money by holding the prisoner at the local police station.  If the family couldn’t pay, eventually, he would make it to the courthouse.  There he would have an opportunity to tell his story to the judge or a panel of judges.

My job was to jump start the system and end decades of corruption.  Obviously this Quixotic quest was fraught with both peril and a cerain sense of futility.

The head judge was a big bellied arrogant man who had been a powerful member of the local Baath party.  Our presence scared him, but he didn’t want to lose his esteemed position so he did what we told him. 

In the late summer of 2003, after a lot of dangerous and hard work, my MOJO team had gotten the police to stop holding the prisoners in the jails and actually start sending the prisoners to the courthouse.  Of course, this created several logistical problems, too many prisoners at the court house, but we felt good at helping to move the wheels of justice forward.

Then, we got a message from the State Department and the Department of Justice back home.  In their infinite wisdom, they had determined that it was time to give the Iraqis several Americanized rights.  One of those rights was the right to remain silent.  The other right was the right to a lawyer.  Now, these lawyers from the State Department and the DOJ, weren’t in Iraq, and hadn’t a clue as to the effects this would produce.  They also probably didn’t realize that under the Saddam Regime, the Iraqis had a their own British System of justice.  A system of justice that does not rely on Miranda, the watershed case granting Americans the right to remain silent and the right to a lawyer.

The day after we were given the order to institute the new changes to the Iraqi law, in the form of a Coalition Order, we went down to the Mosul Courthouse and explained the need for Miranda to the Head Judge.  He seemed perplexed but called all the lawyers together, about fifty of them in Ninevah province and explained what we would be doing.   They did not agree with the changes, nor understand the need for them.

What happened next was mind boggling.  Within days, the entire judicial system in Northern Iraq shut down.  The Courthouse became an engine of inefficiency.  Criminals were angry.  Lawyers were frustrated.  Average citizens were confused.

The criminals hated the idea of remaining silent.  They wanted to tell their side of the story.  There is a tradition in Iraq that you get to lie about the crime you committed.  Criminals in Iraq believe they have the right to tell the judge how they have been wrongfully detained and that weren’t at the scene.  They have thousands of stories ready for the judge and happily change each and every version as they go along.  The idea that they would not be able to lie to the judge was repulsive to them.

Second, waiting for the appointment of a lawyer, was not a satisfactory answer.  The criminals hated lawyers, even defense lawyers.  They didn’t trust the lawyers and felt as though this was a way to railroad them into prison. 

Essentially, Miranda had taken away their right to defend themselves.

Also, since there wasn’t enough lawyers because there had never been a right to a lawyer before and the DOJ and State Department had not funded court-appointed lawyers.  No one had the money or inclination to hire a lawyer.  The Courts didn’t have the money to pay for the lawyers.  So, without a mandated lawyer, the system shut down.

The ideals were good, but it was a fiasco in practice.  The Iraqis were not appreciative nor ready for the American ideals.  Sadly, they are probably still not ready for those same ideals.