May 3, 2007 — Marine Times

Lawyer: Marines Took Fire in Afghan Ambush

By C. Mark Brinkley and Trista Talton

JACKSONVILLE, N.C. - Hit by a car bomb and taking fire, members of a Marine special operations company deployed to Afghanistan in March escaped "a complex, planned attack," and a classified Army intelligence report confirms it, according to the civilian attorney for one Marine involved.

The lawyer's comments provide the first glimpse into the March 4 incident from the Marines' perspective and directly contradict earlier reports and comments from the top special operations general in the region, which claimed no evidence of incoming enemy fire could be found.

"We know they took fire because there are holes in the vehicles," said Charles Gittins, the civilian military attorney for a sergeant wounded during the attack, which caused an international stir after at least 10 Afghan civilians were killed in the fighting. "They were on the run from a complex, planned attack."

In April, one month after the incident, the company commander and senior enlisted adviser were relieved of their duties and sent home to Camp Lejeune, N.C., along with six other spec-ops Marines involved in the incident. The remainder of the 120-man special operations company - the first unit of its kind to deploy for real-world operations - was expelled from the country by Army Maj. Gen. Frank Kearney, commander of U.S. Special Operations Command-Central Command, and redeployed to an unspecified assignment. The company deployed with the 26th Marine Expeditionary Unit in January and entered Afghanistan in February.

In the April 8 edition of The Washington Post, Kearney said, "We found no brass that we can confirm that small-arms fire came at [the Marines]. We have testimony from Marines that is in conflict with unanimous testimony from civilians at the sites."

Kearney added that his investigating officer "believes those [Afghan civilians] were innocent. We were unable to find evidence that those were fighters." He made no mention of any Army intelligence report from the military police arriving on the scene after the ambush, but he did refer the matter to the Naval Criminal Investigative Service for further investigation.

Gittins' version of events is different. He said his client, a sergeant whose name is being withheld because no charges have been filed in the case, was wounded when a car bomb slammed into the convoy, causing the Marine unit to take defensive action. Gittins said the attack on the convoy was followed by small-arms fire, forcing the convoy to make a run for it.

The path was blocked by other traffic, Gittins said, causing the Marines to "escalate" the situation by "firing warning shots." He did not comment on whether any of those shots might have killed or wounded bystanders, but said that the moves were "within the rules of engagement."

Gittins said an intelligence report from the Army's 66th Military Police Company, members of which allegedly rolled into the firefight area after the Marines had left, observed the "headless, armless, legless torso" of a suicide bomber, as well as evidence of a complex ambush. He declined to provide a copy of that report.

Gittins did, however, provide a copy of his client's personnel report, which was written and approved by two officers in the Marine's command March 31.

"While conducting a combat reconnaissance patrol on March 4th, [the sergeant's] vehicle was struck by a suicide vehicle-borne [improvised explosive device] and subsequently engaged by a direct-fire enemy ambush from multiple directions," the report said. "After being knocked down by the blast of the SVBIED, [the sergeant] resumed his duties as his vehicle's gunner and repeatedly exposed himself to enemy fire in order to provide suppressive machine gun fire on the [enemy] forces and allow the patrol to break contact with no further casualties."

A separate report released by the Afghanistan Independent Human Rights Commission concluded that the Marines fired on civilians traveling by foot or in vehicles for 10 miles following the ambush. Victims and their families, eyewitnesses and local community leaders, as well as district authorities, local hospitals and clinics and representatives of the Afghan National Police, were interviewed by the commission, but the report does not include the Marines' accounts of that day.

However, the report does imply that the Marines might have been attacked in the manner Gittins described. "There is some limited physical evidence available suggesting that a complex ambush really took place at the site of the incident, but this evidence is far from conclusive," according to the commission's report.

"I think they fired to warn vehicles to move," Gittins said. "I don't think the indiscriminate shooting allegation is true. These guys are all force reconnaissance, most of whom had a tour in Iraq before."

Phillip Stackhouse, a civilian attorney representing a corporal with the unit, offered a similar accounting. "After they left the engagement area, my client didn't shoot his weapon," Stackhouse said.

On Friday, The New York Times reported that "Marine and civilian lawyers involved in the case have been told to expect charges against five to seven Marines involved in the shootings, possibly including one officer," according to an unnamed Marine official.

"That's a lie," Gittins said, adding that the Times' report was the first he had heard about any pending charges. "And the Marine Corps knows how to reach me."

Stackhouse also said he had not been contacted by the Marine Corps about possible charges.

"I haven't been told anything yet," he said. "Nobody's contacted us and told us anything was coming any time soon. I still find comments like that unfortunate when the investigation isn't completed yet."

Three more civilian attorneys believed to be involved in the case could not be reached for comment Tuesday afternoon. A sixth civilian attorney said he would have to first speak to his client before discussing the incident.

Officials with the unit's parent command, Marine Corps Forces Special Operations Command, have remained mostly quiet about the incident, deferring comment on the specifics of the case until the NCIS investigation is complete.

"We do not discuss the details of ongoing investigations because doing so could interfere with the investigative process," said Maj. Cliff Gilmore, a MarSOC spokesman. "We are absolutely committed to ensuring our Marines are treated justly and to preserving the presumption of their innocence."

In the meantime, Gittins said he wants his client's Purple Heart medal for injuries he sustained in the initial bombing to be awarded. "They claim they are holding it until he is cleared of all misconduct, which is bulls--," Gittins said. "He is entitled to it; it's not like there's a question about it."

Gilmore said MarSOC commander Maj. Gen. Dennis Hejlik is the awarding authority for any possible awards in this case, and will authorize awards in accordance with the law and Defense Department directives.

"Receipt of a Purple Heart award requires that a service member's actions following a distinguishing act are honorable," Gilmore said. "Maj. Gen. Hejlik will not make a final decision regarding possible presentation of personal awards in this situation until the investigation is complete."

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