This Army Memo for the Record describes results of investigation in to the allegations that there were photos taken of John Walker Lindh, an American captured while fighting for the Taliban in Afghanistan, while he was bound, blindfold and with a sign hung over him reading "Shithead". The memo also addresses the deletion of photos because it might "embarrass the command." Notes 5th Special Forces group was not trained in detainee handling.
AOSO-JA
4 February 2003
MEMORANDUM FOR Commander, United States Army Special Forces Command -(Airborne), .
Fort Bragg; North Carolina 28310
SUBJECT: Review of Informal 15-6 Investigation
1. I have reviewed the enclosed informal AR 15-6 investigation conducted by Brigadier General
David P: Burford and find it legally sufficient and in compliance with the requirements of AR 15-6,
paragraph 2-3b.
2.
The investigation complies with legal requirements.
3.
The investigation is complete, with the following exceptions:
a. Three statements from the MAJ investigation, included within the current
investigation, contain only the front side of the DA Form 2823, Thus, the statements exist as
unsigned, unsworn statements.
To the extent that diligent efforts have failed to produce signed,
sworn statements, these unsigned, unsworn statements will suffice. I find this error harmless and
without material effect on an individual's rights..
•
i4.(kslc-LC
b. The sworn statements from the MAJ VP"
investigation
in stigation attributed to SFC
SSG i
are missing from the file. Both of these soldiers were subsequently interviewed by BG *.
Burford as part of this investigation. There is no reason to believe that the earlier statements would
contain contrary information. I find this error harmless and without material effect on an
individual's rights.
•‘.
4.
Sufficient evidence supports the findings of the investigation.
5.
The Investigating Officer's recommendations are consistent with the findings. 6.. POC is the undersigned at 43211ln
P
PT, JA Deputy Staff Judge Advocate (Acting)
013563
: !:.
•
USASFC 15-6 Investigation of photographsl.by.01Special Forces Group (Abn) of John Walker Undh
Contents
1. Specific reponses to the allegations fin the 15-6 appointment order 0.22 April 2002
2.. Findings and Conclusions
'•;" . 41.1y
• 3. Narrative and Summary Tirife1ne'
---4. **"..'. • : •
4.
Facts that bear further considelitiGif.)6'''':
. •
5. .igaiiprys49.:#1,-1.• I
Recommendations
O. Enclosures and Exhibits
a)
Appointment memo for C61(11.1340ord of 22 April 2002
'4-
•
b) Initial 15-6 investiga 5P,SKGA of April 2002(i.e.; the MAJ
Report) .(includes theillitExhibits) c) koko;
Exhibits to Burford's 15-6
013564
Specific responses to the allegations in the 15-6 appointment
order of 22 April
Paragraph la
Regarding when, where, and why the photograph depicting Mr.
Lindh bound, and with the word "shithead" written across his
blindfold or headband, was taken: .),..1
b U-4 to -T.b 2,--;'
o Yes, SFC
photo on g of took the
he ODA's igita camera on 7 Dec 01 on or about
1320Z in the detainee's room at the "Turkish School House"
(initial detention point) just as prisoner transfer was to
occur. The photo was taken "as barracks humor." Mr. Lindh
was said to be "unaware" of the event or the photo.
o Binding and blindfolding a detainee is acceptable doctrinal
guidance as taught in Soldier Training Procedures (STP 191000-001) and FM 21-75, Chapter 6 under the "silence" and
"safeguard" headings of the 5 S's of EPW handling.
Patagraph lb
Regarding when, where, and under whose orders the photogra h in
iestion.
was removed, deleted, or otherwise destroyed by.
'
i9'''l
12 g' ?-
41-
o un.
ecifically, Team Sergeant, MSG
attempted the first deletion on
the camera
itse wit in 24-48 hours of the actual photo
after
discussion, agreement and at the
the Team
Commander, CPT
—.
/10
o No hardcopy of the photo was made at :OA4level.
41 b -l-c-Lf
o It wasn't until 5 April 02 (100 days) when MSG
-
interviewed by the DOJ / FBI and asked to turn any
to them that this question arose. As far as
MSG
and
knew up to that point in time - this photo-in-question
.
did not exist anymore after.
camera deletion.
6 ta"fi.-LF
o However, standard practice had each ODA's camera or its
"flashcard" memory device downloaded daily at the Group's
Support Center for archival purposes onto the Support
.
Center s
'
laptop hard drive. Once this has occurred, it is virtually
impossible to track the transmission or dissemination
1 013565
10
electronically. It is also virtually impossible to identify
all who may•have seen it.
o At least one other deletion did occur at Fort Campbell by
Battalion staff.... but
.
as a result of an operational security
concern by intelligence specialists since the faces of ODA
members were visible in the photo-in-question. These actions
P
redate the issuance or receipt•of the formal Preservation
Order and Discovery Motion delivered to
April 2002. Fort Campbell on 5
6-416-7-e---Lf
Later, menti• is made of "hard co
py° photo's printed for COL
review in early April but no mention is made of
how these were handled. It is possible that it is these that
were the ones turned over to the'DOJ / FBI at about that time.
Paragraph lc
Regarding when, where, and by whom the photograph was next
discovered by members of 5th Special Forces Group (Airborne):
i:),;-Q..
o .
1111111:members saw it on the camera's playback screen.
o Support Center personnel saw it on the Support Center (SupCen)
laptop hard drive.
o Other FOB personnel may have seen it-on other computers that
were electronically connected by "LAN" to the Support Center
laptop or on an "MWR" laptop in the FOB (not on a "LAN").
o At the initial screening
at Fort Campbell in late
-February 2002,. in response to the DOJ /
(after.the first FBI's initial request
by DOJ / FBI), a CD with this photo was
produced by SSG
and screened by CPTIIIIIVr
recommended -io -----. b.(0 4-1-11D3-c.-4
CPT
(3'd Battalion S2) that it be deleted
for operati al security re ns.
b Wlibqt.-ii .y
b 10 -' 41104-e-"f-
Paragraph id
Regarding when, where, by whom, and to whom the photograph has
been distributed; to include diStribution modes such as email,
hardcopy, accessing via a digital camera or computer screen:
o There are a number of soldiers interviewed who admit to seeing
this photo and perhaps more who say they did not. Likewise
013566
2
I I
common access to a certain laptop like the Support Center
laptop (" The entire Battalion S4 Section") or the MWR laptop
in a widely accessible common location ("the entire Battalion
Operations Section") do not seem to be direct determinants
. of
who did and who did not see this photo.
There is little testimony that indicates this photo was passed
around electronically and the vast majority of testimony that
says it wae.hardly ever seen in hard copy. There is also
limited mention of a few individuals who have seen it
subsequently in the pu tlic domain (internet sites).
6 Laylo
COL
was shown a hard copy in early April by LTC •
the Motion to Discover arrived at Fort Campbell,
as
had only returned to Fort Campbell in late March
and had not
the photo-
in-question up to that point in
time.
6 G -LLI 0--e-
Paragraph le
Regarding what training program was in effect prior to or during
5th
Special Forces Group (Airborne)'s deploYment into Afghan istan
as regards status and/or treatment of Prisoners of War and
Detainees:
o Prior
to deployment, the SF Soldiers routinely trained in
combat skills such as .Military Skill Level Tasks found in STP
191-000-0001 and FM 21-75, Chapter 6 (the 5's of EPW handling)
and ODA SOP Rehearsals.
o However, 'it should be pointed out that these skills focus
mostly on the doctrine we•have now, describing a more linear
battlefield where prisonerb might be taken captive but are
quickly turned over to a holding authority as the battle lines
adVance; a holding authority trained to hold'or inter them.
In fact, STP 191-000-001 and FM 21-75, Chapter 6 talk about
quickly "evacuating them to the MP collection point or holding
area" ... and to. "evacuate them as quickly as possible".
o Further, the diagrams in FM 19-10, Chapter 16 show just
such a
linear arrangement of the battlefield and the "orderly"
movement of EPWs to the rear ... and into MP custody.
o Factually, we train our
Military Policemen for the follow-on
part of EPW handling in
FM 19-4 and have dedicated units to
so. None
were nearby in Afghanistan. Consequently, we 0n 567
3
1 1),
begin to she how asymmetric warfare can be different and
doesfiLl.ftexactly in our current doctrine. While the ODA's
like...II/considered the possibility and trained themselves
to be ready to take prisoners, there are two significant
diversions;
•
First, these individual might be prisoners ... or they
might be detainees ... or maybe refugees;
•
And second, there was•no one to hand them off to.
o While trained
rovide capture in the first moments of
combat
was not trained to retain custody. None of
our combat soldiers are, to my knowledge.
b -a
o As a result,
became a defacto internment element,
without much training beyond the•"five S's" of EPW handling
for the first moments of combat: search, silence, segregate,
safeguard, and speed. Speed refers to hastening an EPW's
Movement into custodial control of battlefield MP's.
o All this being said, taking the photo
-
in-question of Mr. Lindh
was still an immature, sophomoric idea.
•
Paragraph' if
('
Regarding what training was actually received by 11111111,rior
p
to or during its contact with Mr.Lindh:
o None in evidence beyond that of initial soldier and 18series training in "detain and secure" as described in the
response above to Para le: search, silence, segregate,
safeguArd, and speed.
b -
6 However, su
ntal verbal guidance was given by LTC
provide food, water, medical
( treatment, and shelter IIIIIIIIIII,
-..to Mr. Lindh. b to - 14-/ 6 q-e._ -44 b Lo - '4/19 3c_-Lf
Paragraph lg
Regarding what status individual members of WMarabelieved
Mr. Lindh to have while in'their custody:
b
b -
o The team was not certain o his status ... neither were
.
legal scholars, but many
certainly approached thei
r
assignment with utmost caution and meticulous record
keeping from twice-hourly, ODA command-directed
013568
observations of Mr. Lindh in his room. The training in
4
STP 191-000-001 in paragtajoh 3 under the "segregate"
section trains our soldiers; "when ia doubt of a captive's
status - treat them like an 'EPW" as well as in.. FM 21-75,
Chapter 6.
o From FM 19-10, Military Police Law and Order Operations,
Chapter 16; "On the battlefield, MP's provide for the
temporary confinement and swift evacuation of US military
prisoners. MP confinement operations parallel, but are
separate from, the MP EPW internment and evacuation
system.."
o I am certain that few among us expected to find any
Americans•alongside the Taliban and Al Quaeda among those
armed and arrayed. against our forces on the ground. This
was clearly an undefined event.
In hindsight, I am not
.
sure we should expect
resolve this completely on
their own and make such a determinati
n Mr. Lindh's five
to six days at the Turkish Schoolhouse.
ba - a
1---2 - a
0 I do not know if -
was forewarned or anticipated the.
length of its custodial duties. More;likely, decision
makers either had not'made that decision or were unable to
implement their decision because of combat conditions
around Mazar-e-Sharif.
-...
„; .....::.v•.
...:
o ODAIIIIII1generosit t w
• .: .
M. Lindh was humbling as on
Day 1 of custody,
segregated Mr. Walker in the
Turkish Schoolhouse in a room, not a cell; out of concern
kz....;_i.
for the possibly unpredictable actions of other Taj.jhap430 '
QUaeda•detaiOees toward .Mr. Lindh. IIIIIVIEJTp their
own food and supplies to him for consumption and warmth,
confiscated,
an electric heater (FOB Supply Room) and even
another man's cot (SSG
for Mr. Lindh to use while
ba a.,--111111111continued to• Jeep on a concrete floor,
-yin a.
separate unheated r
----:-bu. -4/ ko 3-e... - Li-
•.
b 6 1-1.--4--e_--.14 .yb L0-4119--4-c•_-Lf
o Mr. Lindh wasgiven soap,
toothbrush, tooth aste and
towel for his personal hygiene and was permitted to
ractice religious beliefs whenever he was so moved.
even went so far as to manually heat water for
b D....._ Mr. Lindh in makeshift vessels so'that he could bathe in
the hot water.
o Mr. Lindh was afforded a visi from the Red Cross within 013560
the first -36 hours of
taking custody. Mr. Lindh
-
5 /4f
was also visited one ad itional time by the Red Cross while
under the care of
before his departure from
o Mr. Lindh was provided thr e (3) MRE meals a day and
bottled water•while
and the other SOF forces in the
Turkish Schoolhouse subsisted on one (1) MRE meal a day,
lus local rice and drank from the local water supply
1,-14 6 -4-c- Lic
6-LE I hie `f
o Mr. Lindh received a daily medi al evaluation from a
qualified physician, CPT
MD 3rd Battalion 5th SFGA
Surgeon, who treated Mr. Lindh's wounds and rovided 6(
e _tfib-4..c_Lf
medication daily. Dr.
also pressed higher
Headquarters to be ready to "preserve evidence" if John
Walker Lindh's leg wound was later to produce any fragments
or ballistic evidence during subsequent surgery. Further, persisted in asking higher Headquarters to make sure that Mr. Lindh received their hi hest medical bit 1-1-11D7d 1-fr
-
-
priorit once he was moved on beyond Dr.
care.
also kept a medical log separate from
ice-hourly A ournal that recounts in detail; the
meticul•us care Dr
ave Mr. Lindh.
•
6 tc,-4/by4
Paragraph lh
Regarding what rules individual members ofillillibelieved to
be in operation during their contact with Mr. Lindh: .
6.2-a
o As in Pata le, IIIIIIIr:nexpectedly became a defacto custodial
element for a detainee, without much training beyond the five
S's of basic soldier-skills intended for EPWs; search,
silence, segregate, safeguard, and speed.
o. The training in STP 191-000-001 in paragraph
,3 under the •
"segregate" section, trains our soldiers; "- when in doubt of
a captive's status - treat them like an EPW" as well as noted
in FM 21-75, Chapter 6
o However, his status as a "possible American" among the Talibqn
certainly fueled the extra caution and care that1111111,-- loa
rendered Mr. Walker as well as the iteticulous note-taking of
their every interaction with him, to include the support
described in Para lg above ... which went so far as to record
the weights and measure of his food and Mr. Lindh's use of his
confinement latrine, just before
cleaned it for him.
013570
6
Paragraph li
Regarding when individual members of 1111111111were interviewed
by any member of the Department of Justice or Federal Bureau of
.Investigation:
o Most
1.11111members were still •deployed OCONUS in February
and not contacted by the DOJ / FBI until April 2002.
Paragraph. •
a.
Regarding if the individual members of
were questioned
by DOJ or FBI concerning the existence of photographic evidence
of Mr. Lindh:
Yes, in April 2002 EMI
Paragraph 1k b 6-141 b.q-o_-
Regarding whether the individual members or IIIIIIIIIrevealed
the DOJ or FBI representatives the existence of the Photograph
of Mr. Lindh now in question:
T-..
--,li' o Yes, in April 2002, but most referred to participating by
., .- being in the photo of 7 December 2001 while they were still in
Mazar-e-Sharif, Afghanistan; but not seeing it afterward in
any'form beyond the on-camera playback on
.7 December, as
questioned in the'subsequent review a few months later during
the investigative interest.
Paragraph 11
Regarding whether any other member of the 5th Special Forces
Group (Airborne),. identified in the investigation as having
knowledge of the.
photograph of Mr. Lindh now in question, was
interviewed by DOJ or FBI:
o Yes, see multiple responses of several witnesses.
013571
7
Paragraph un
Regarding whether these members (ieferenced above) of 5
th
were questioned by DOJ or FBI concerning the existence of SFG(A)
photographic evidence of Mr. Lindh:
o Yes, there were those who saw this photo in Afghanistan beyond
•
--1/11111and perhaps a few who may have not been part of 5''
... as they could have seen it at FOB 53 on other business;
electronic versions of the photo'were reportedly seen on
laptops. But most were 5th SFGA soldiers who saw it within the
confines of their staff section laptops (SupCen.and OpCen) -
and a few who then saw it back at Fort Campbell afterward,
during the "search phase" after the initial DOJ / FBI requests
and visit to Fort Campbell
b ILD "4 I b -7-e_.--Li
o Of the first grouping (in Afghanistan); SSG.
example is an
as it was one of his jobs to daily login the digital
photos from all the ODA cameras and other data downloads in
the SupCen.
b t..--t- /b^1-c-4-.
bts--/4/1)?-c--q-.10 6 "1' \ b74- (I. -Li
o Of the later rouping (at Fo t Cam bell
AMIN CPT ); MAWIIIIIIIV, CPT
and COL
are,'exam les of those who
66-1..4/ say they saw it later. Some, like COLb..; c.,,..f been questioned by the DOJ or FBI q this da have never
o Also noting that COL
did not see the photo-in-
estion until early April, upon his return
when MAJ
. had to print off a hard copy for
to review.
1D1 -14/ b -4-e. L4
-12.6 -411Dq-0.-
Paragraph In
Regarding whether these members (referenced above) of 5
SFG(A)
threvealed to the POJ or FBI the existence of the photograph of
Mr. Lindh now in'question:
o Yes, those who saw it admitted such.
o However, I cannot find anyone one who came forward voluntaril
with an admission of having seen it .or anyone "accused" of y
seeing it who came forward later on
6 6-
o Further, all who were implicated by speculation
may
have seen it, since he had access to the SupCen laptop-ft)
claim they did not, s discussed in Narrative section below.
013572
8
/7
Paragraph lo
Regarding whether efforts were taken by any member of 5
th SFG(A)
to conceal or attempt to conceal the existence of the'photograph
of Mr. Lindh now in question:
b
o Yes, within 24 hours olf ODA taking the photo (-8 December) the
ODA Commander, CPT1111111, grey,/ uneasy, thinking it might
"embarrass the command" talked it over with the Team Sergeant,
MSG
and directed MSGillitto
.
"dele,:te it" from the camera.
66-14 /12-1-e--y
bth,"4
o Taking the photo
-
in-question was truly an immature and
sophomoric idea, and the team began to have doubts about it
almost immediately. Deleting the photo on the camera was
clearly in the interests of the team and the 5
th SFGA and shows
considerable good judgment (or good judgment-reborn it is
);
what we aspire to with our SOF leadership training.
first deletion was done in the Turkish Schoolhouse inThis
Afghanistan in December 2001, over 100 days prior to any
investigative interest.
o Later, a.
CD was made back at Fort Campbell that had the photo-
in-question on it, but this CD was discarded after a new
CD,
minus this h to, was recreated during the initial inquiry by
Captains
and
o As Captains
and describedit - the
,
deletion was
recommended to be in the interests of protecting 5
documentation as this th SFGA's
particular photo was questionable from
an o perational
security point of view since it revealed/NI
member's identities as they stood alongside Mr. Lindh.
ACaptains
•.an
logical
hat; progression was likely
•
b - by-
Numerous other pictures were to be turned over to the DOJ /
FBI, illustrating Mr. Lindh's detention, along with very
•
This one photo
detailed written documentation,
-
in-question was unremarkable for showing
prisoner treatment as it was similar to other photos
showing Mr. Lindh's detention that were to be surrendered
to the DOJ that day,
•
This picture however was unique, in that it incl d
recognizable
team members standing alongside
Mr. Lindh which th eatens their "viability" and future
survivability on S F missions.
013573
1?
6,1-f/b3.-a
¦ This "success of logic" for Captains
an
in
turning over any photo's of Mr. Lindh's detention but
omitting this one, fit seamlessly with wha
aua
believed was the DOJ / FBI's intent on 21 February, an
them, omitting this one photo did not seem to impact the \310-14)
DOJ's implied requirements of; "gather evidence ... see what
you have."
610-4-/b--
Captains and
were operating at the limits of
their training but ostensibly as the leading vanguard of
the SF Battalion's operational security barrier. The SF
ODA's, Battalions and Group are expected to be their own
gatekeepers for deciding if classified / sensitive
information is to exit their SOF security umbrella.
When MAJ
concurred with the recommendation to
bqe---1, • .
delete this one photo, from among other similar hoto's"01.0_141
bL,
/
his concurrence confirmed Captains
an
b4c s .
"success of logic"; so the deletion occurred.
The "logic 673-C-41-
trail" here should be one for considerable debate at future
Professiona Development meetings at 5th SFGA. Captains
and
erred on the side of strict operational
securi y and are .not found to be motivated by concealing
evidence in my opinion.
¦ Statements indicate that soldiers all felt that the DOJ / FBI inquiry was friendly and informal and perhaps assumed that prosecution of Lindh was their only goal.
¦
To review some of the words attributed to and made in the
DOJ / FBI statements;.
o "we are just getting oriented on what happened"
(DOJ at Campbell on 21 Feb)
.14
• b6o CP was asked to "facilitate a meeting"
(DOJ with 5th SFGA soldiers)
o
"informal meetings with soldiers"
o
"to see what (evidence) you might have"
o DOJ indicated that "a (written) directive on this
should come down shortly"
•
DOJ seemed to understand on 21 February, at the departure
of its first delegation from Fort Campbell;
o "you have given us all you have for now"
o "the items handed over today, was just what could be
made ready today"
¦ DOJ stated that their intent was; "to return to get more
later (items / photos)".
013574
10
Paragraph 1p
Regarding what efforts were taken by the leadership of 5
th SFG(A)
to ensure all documentation and/or photographic evirdence of Mt.
Lindh was disclosed with requests from the DOJ or FBI:
¦ It should first be noted that the initial meeting of 21
b (.0"44/
February was arranged by FBI liaison, through Fort Campbell'
CID Agent 64.e... _ 7
, by direct phone contact with CP
at 5thSFGA. The Co
d element learned of the visit from CPT
•'pp
it develope ; the Co and element said to proceed.
• Emails of 21 February 2002 between LTC
(Commander of
5th SFGA Rear at Campbell) to COL Li it
(Commander of 5th
SFGA Forward, still in Afghanistan); communicating the
announcement of the DOJ / FBI vibit and directions to
cooperate, including "cc'd" copies of his email to several
but not all of their respective staff members; LTC
_ ,was keeping his Boss informed of an importadt event and
614
A both seem to start with a "let's cooperate° er ective,
including email intermediaries like MAJ
who .said;
"give them everything".
bt,--1-11b1:-yb
• Witness statement of LTC
to not delete anything
pertaining to John Walker Lindh", is corroborated by several
other interviews as a directive made to the entire unit,
called-out into formation. This statement appears'to have
been at about the time of the formal legal directives to do so
... and was also the causative factor for a unit recall for
formation, during.a weekend in April 2002; a highly unusual
1,6 military event( but speaks volumes of 'the importance that
bLO' .k/175r111111Wplaced on finding and producing this Lindh
V documentation for the DOJ / FBI.
sdk 10(.0-141 10 -3-e--LP
• On April 4, 2002 LTCIIIIIIralled all the Battalion
leadership into his office to pass along hislintent to comply
with the Motion to Discover, delivered to Fort Campbell, to
produce all documentation. It was at this meeting that
LTC
ked for and first saw the photo in printed format
(MA
b6-4be--14
10(4,-4/ b-+C--14
• There is one interviewee (SSGREIrwho
recalls LT;1111111111
making a similar statement "about two weeksafter" the 21
February 2002 visit to make "all data on Lindh available to
the DOJ".
013575
11
¦ On 8•April 2002 (possibility the Monday followin th
1A!-;
Battalion "recall formation"), JAG officer, CPT
electronically distributes the official DOJ Motion of
Discovery and official Preservation Order across the 5th SFGA
along with his comprehensive instructions on how this should
proceed and how data is to be collected. His instructive
wording includes; "search all ... for any
materials-
do.not delete or shred any materials."
6201;\
Counseling on the concerns caused by the photo, be an within
24 hours of 7 December 2001 by the ODA 'leadership
, b(4-4y/
and continued throughout the ODA, Battalion and Group.
1,03-e._ eq.
-
chains of command as they learned of the event.
b
Editorial Note: As Commander of
stationed
within the Turkish Schoolhouse throw hout December bL9 -4/
2001 and into January 2002, LTC
apparently
Li
never saw nor heard of this photo. In the other
Editorial Note at the end of the Narrative Section, I
too stayed at the Turkish Schoolhouse in January 2001
and was not aware of it or even any mention of it.
Natrative.
10A-
As part of the Special Forces A-team's rou ine efforts to
document Team activities and as ordered by higher SOF
headquarters, digital photographs were to en of the detainee,
Mr. John Walker •indh by 5thSFGA's
during his detention
in Afgh
Afghanistan. Ond particular photo of 7 December 2001 showed
objectionable wordin , visi
y written on Mr. Lindh's blindfold.
The team Sergeant of
took steps to delete it wit in
24 hours (- 8 December) ... but the photo had alrOady. spread -
through electronic "legs", as it had already been downloaded
into the Support•Center laptop hard drive, as was daily SOP for
all ODA camera products. Back at Fort Campbell in February
2002, this photo was found on this Support Center laptop as well
as on the Operations Center laptop and at least one CD. The MWR
laptop was also referred to as having the photo at one time but
reported to have had a hard drive "crash" that was
unrecoverable.
013576
12
When federal authorities inquired about information and data
pertaining to Mr. John Walker Lindh in February of 2002, in
anticipation of prosecution, efforts were made to locate this
and other information within 5th SFGA on Mr. Lindh•as some of
the Group had by then, redeployed to Fort Campbell. However,
most of 5th SFGA was still OCONUS at this time.
The photo-
in-question was variously reported by 5 th SFGA 1)C2-0
individuals as;
•
Non-existent / never saw it / never heard of it
•
Heard about it ... but never saw it 111111111V— bto-
• Lffbl-ti.
Most soldiers implicated through speculation by others
(" XXXXX might have seen it, since he had access to ZZZ
section's laptop") stated they had not seen it
• Viewed on-screen only
o Viewed on-screen in Afghanistan
• At the FOB (Battalion Head arters) OpsCen
(Operations Center)
b c2 -1
• On the Battalion SupCen laptop (Logistical
Support Center)
#1) — b U-t-1-yc
• SupCen laptop was on a, LAN but not Internet
capable
• On the Battalion SupCen MWR laptop
• MWR laptop was on the Internet but not LAN -
capable (MWR hard drive re orted to have
crashed while OCONUS)
#2 b 6-4164-c- Lf
o Viewed on screen during the archival process
o Viewed on Screen in or
to s for potentially
classified information
• Viewed and saved on the hard drive but not
a removable copy
bloy, initial) •
Viewed and later saved onto a disk / CD / flashcard
subsequent)
• Viewed but location unknown (several)
/
•
Viewed but not kept
• Viewed but deleted (all
151,2-c.
•
View on TV newscast at a much later date mu b to
All of whom seem to have been truthful;. to wit; each individual
truthfully reported what he knew to be true, as all had
different experiences related to the photo-in-question.
01 577
13
There were actions taken with the photo
-
in-question to delete it
but several preceded redeployment. Once back at Fort Campbell,
further actions to limit the spread of this photo-in-question
preceded the initial contact by federal officials and therefore,
were not prejudiced by any need to conceal or delete anything
for other than for routine operational security, customary to
SOF.
k) -
It is noted that several actions were taken by 'in a
self-policing fashion and by others to limit the spread and
storage of this particular photo-in-question due to it's
possibly offensive nature. Despite their best efforts, not all
these efforts proved to be successful. In addition, it is not
indicated that
ever knew later on, that the photo was in
other electronic loca ions and hard drives.
6
Delivery to an electronic device that has multiple access ... like
a staff section computer with several authorized users or an
Internet connection by any means whether electronic or physical
-severely limits the effectiveness of any efforts to "capture
the photo-in-question". Consequently, the photo
-
in-question may
well have traveled beyond 5 th Group's electronic perimeter into
the private or public domains.
Since the photo-
in-question was not produced nor consistently
alluded to in initial interviews ... but was delivered to federal
prosecutors at a later date, there was some initial speculation
by the prosecutors that this was in an attempt to conceal this
particular photo. I do not find this to be true, nor do I see
this as a "cause and effect" relationship with DOJ's visit;
i.e.; the initiai.:DOJ visit did not cause the photo to
disappear, other than the one CD version reviewed for
operaticinal security, customary to SOF operational protections.
Statements and the chronology of events point more strongly
toward the facts-that;
• The photo-
in-question was not known to all who were
interviewed
• It was not available to all who sought it
•
The federal authorities saw their search as an iterative
process and their statements indicate that they planned
"subsequent visits" to Fort Campbell; apparently accepting
the fact that the search and subsequent discovery events
0135 8
would take some time and multiple visits
14 23
• The photo-
in-question was delivered to the prosection when
u
it was'described as a crucial item with Mr. Lindh'
s defense
counsel's Motion for Discovery.
• Discussions about the Photo-in-question's possible
offensive nature by members of 5th SFGA gave way to Command
Guidance b
that everything be turned over and
that nothing should be deleted. Although he did not talk
Jr-y
to the Prosecuting Attorney's'team until April 2002, -
LTC
guidance was
0
iven sometime after their first
visit to Fort. Campbell in gFebrua
1-1-ry and
after
the second contact by federal officialsperh aps again
(telephonic) at an
unusual "recall" formation on a weekend ... its issuance
clearl
eded LTC
-1-.
first meeting with Prosecutors
in April 2002 and the importance supported by the highly
-9
unusual "weekend recall formation" of the unit.
—q
• Consequently, I surmise that LTC
.
guidance was
driven by the 5th SFGA
ers
s "good faith" estimate of
the situation, as the transfer of this articular photo of
Mr. Lindh very closely followed the delivery of the
official Discovery Motion on or about 5 April 2002.
Editorial Note:
The 15-6 investigator here ... then
COL(P)(Burford'-actually stayed in the Turkish School
House in Mazar
e-Sharif in January 2002 fo
-veral
days - within 3-4 weeks of the photo
LT and bc:2
were still there and COLaiurford never
hard of it nor heard it referred to by anyone.
6674/ b-3-e--Lf
013579
15
Summary Timeline
2 December .2001 .
-NI
'.P John Walker Lindh was taken into US custody by
at
the Quali Jangi Prison after the intense combat there and
significant loss of life, including CIA Agent
b6-1
transferred Mr. Lindh into the care of
at the
"Turkish Schoolhouse" in Mazai-e-Sharif
to P.---A.,
7 December 2001 b a
.
$1. The photo-in-question was taken by
at the time of
transfer of Mr. Lindh; •
• Mr..Lindh was delivered out of MM. responsibility
into MP.custod at the.
MES airfield for air transport;
concluding
custodial internment assignment
• b
8 December 200
Team Ser•ean , MSGIIIIIKiberately deletes the
photo from
digital camera but the flash-card
storage device from that camera has already been sent to
the 3'1 13attalion's Support Center for .archival purposes (as
is daily routine); photo is downloaded into the Battalion
archives onto the hard drive of the SupCen laptop computer
(as is daily,routine)
January 2002
Eletents of 5th SFGA begin to redeploy to Fort Campbell
01353;0
-
1 S
Early February 2002
• Initial coordination
com= direct from the FB to Fort
Campbell's CID Agent
who called CPT
at 5th SFGA direct
• First
phone call from the US Attorney's of
-14;ySFGA, to 5th
was directly to CPT 11111,---bte
-LE/ b7C---11
0-4 CPT
assumes POC
duties for the US Attorneys;
CPT begins
coordination for setting up
b -.Q.
o CPT
informs LTC
Rear) (Commander, th Group
b -tx, -4 b4 c_
-
o LTC IIIII1Finforms COL th
OCONUS) by email 0 Gro p Forward,
•
Initial search for information begins within 5
Fort Campbell th SFGA at
-21 February 2002
•
Electronic messages from 5th SFGA at Campbell to JSOTF-
Afghanistan (5th Group Forward) to gather everythin they
have on Mr. Lindh, particularly focusing on
• items-
First visit to Fort Campbell by US;Attorneys
• First face-to-face meetings with 5th SFGA soldiers
•
First items
of-evidence turned over to US Attorneys
o S.
finds the photo-in-question, among
others, on the SupCen laptop hardIfIrli,
v%t_tv_Li
o Concerned about security, 41111110—Mgcesia
brings CD to CPT-copy and
o CPT takes the CD to
CPT
(Battalion S2)
to inquire about security
. • and recommends deleting
this•.
Particular photo but
no others
o CPT
asks MAJ
and MAJ
o CP
cuts another CD
without the p oto-in-
question
10 CP --
Li .
o NOTE: It is likely that e photo-in-question now
resides on both SSG.
101.0 SupCen laptop and now
_11 CPT
hard drive though the re
-
cutting of a
b-l .1 new CD ( copy content / delete one file
ce-1-
(the photo) / recut a new CD)
o The fate of the original 'CD from SSG 1111111with
photo-in-the
question) is not certain but is referred
by more than one person as "probably destroyed" to
013531
'17
9.(0
o US Attorney's depart Campbell on 21 February with a
number of items but are reported to have said;
"We know we may need to come back..."
Late February 2002
•
First mention of finding the photo-in-question elsewhere
within 5th SFGA at Fort Campbell begin to emerge*
•
, Commander to 3rd Bn / 5th SFGA at Fort
"Do not delete anything"
(oLiyt-1-
21 March 2002
• Telephonic interviews by US
.
Attorneys (virtual visit to
Fort Campbell) (second visit)
• Additional materials and items sent to US.Attorneys
4 April 2002
US Army Special Forces Command (USASFC) receives the formal
Discovery Motion and Preservation Order dated 13 March 2002
5 April 2002
Discovery Motion and Preservation Order sent from USASFC
are received electronically at Fort Campbell by 5th SFGA JA
officer CPT.
and distributed electronically within
5
th Group with explici
instructions as to the importance
and sensitivity of this
ssue
6 & 7 (Weekend) April 2002 ¦ *LTC
directs a weekend recall formation and
announces; "Do not delete anything"
¦ LTCIIIIM also calls all available 5 th SFGA leadershipinto his office and says; "Do not delete anything"
• LT
also directs that the detailed JAG guidelines
of 5 April be strictly followed
fve' f)
zio')4
18
19(4? -°
8 April 2002
MAJ
appointed as the AR.15-6 Investigating Officer
by 5th Group Commander (Rear)(Monday, following the .weekend
recall formation)
10 - 18 April 2002.
.
BAJ .
conducts his investigation
12 April 2002
The photo-
in-question is found and turned over to US
Attorneys by 5th SFGA
16 April b Le-a..
MAJ
finishes the 15-6 Chronology of Events
17 April 2002
MAJ ubmits final draft for legal review to 5th SFGA
JAG section
18 April 2002
MAJ
¦
submits his 15-6 Conclusions and
Recommendations as an MFR to the 5th SFGA Group Commander
. Group Commander acknowledges receipt by rendering-hisrecommendations ... but 5th SFGA Group Commander's comments
are not dated in Section VIII (Actions
Appointing
Authority) of the DA Form 1574 to
15-6
submittal (Report of Proceedings)
66-
22 April 2002
Burford appointed as 15-6 investigator by CG, USASFC;
Burford meets with USASFC legal advisor (MAJ
Late April 2002
First mention of possible Obstruction of Justice charges
against 5th SFGA individuals
013583
19
DOD-015537
29 May 2002 106.-a
•
15-6 arrives at USASFC by FAX from SGTIalrof
SFGA COMMCEN but is classified SECRET (SCI)
15-6 exhibits are found to be mislabeled or
misplaced;
b --Lt
1)Exhibit 11ggaLuallythat of SSG 1111111r
(not SSG )
as listed
b (-14 I
2)Exhibit Q and Exhibit A are missing
(listed as
and
‘044,--416 -3-a-LI
Early June 2002
Members of 5th SFGA are called
to Virginia by US Attorneys
to assist in the Prosecution'spreparation of their case
and
3 June 2002
Memorandum from CG, USASFC to Chairman, Joint
. Chiefs of
Staff-LC (Legal Counsel) to notify the CJCS's office that
two of the statements had to be redacted
before the
.15-6 could be distributed e
' as-needed
and o notify CJSC that USASFC would iolderts
own
USASCF-level 1 -6 Investigation
Mid - June 2002 6L -41193--c-9-
US Attorneyirequest other witnesses from 5 th SFGA to attend
upcoming Lindh trial -
Early July 2002
US Attorneys. return to Fort Campbell and conduct multiple
interviews of 5th SFGA to assist in the preparation of the
prosecution's case
9 July 2002
Burford meets again with USASFC replacement legal advisor,
CPT
\01.Q_""
0 1353 4
20
15 July 2002
BG Burford, MAJ
and CPT
are at Fort
Campbell for the majority of their USASFC 15-6 interviews
17 Jitly 2002
Mr. Lindh pleads guilty
18 July 2002
BG Burford, MAJ
telephonically
interview DOJ attorney
Late July•2002
• Original USASFC legal advisor, MAJ
_
, PCS's to CGSC
• Officially replaced by USASFC
advisor CPT
5 AuguSt 2002 .
•.6
Email from CPT
(JAG USASFC) to CPT
(JAG 5th SFGA) trying to establish contact with 5 th SFGA
personnel, many. of whom are no longer at Campbell
23 August 2002
BG Burford and CPT
11111111111, conduct more telephonic
interviews
6 September 2002
• BG Burford and CPT
telpphonically interview
FBI agent
(0/b?-c-(40
BG Burford requests an
extension from USASFC that is
granted
eN5f-PP4
fl;-))z)
21
30
DOD-015539
25 September 2002
BG Burford meets-again with CPT 6 -
26 September 2002
First draft of USASFC 15-6 and form 1574 done by BG Burford
4 October 2002
Mr. Lindh is sentenced
7 October 2002
Letter dated
.
Information withheld - Exemption (bX5) - pursuant to a request from the Executive Office -of: the:UnitedStatile Attorney.
Late Nbvember / early December 2002
.
US Attorney's letter 'of 7 October 2002 arrives at USASFC
CG's office at Fort Bragg
•
CG USASFC shares a copy of the letter with USASFC 15-6
Investigating officer (Burford)
.
January 2003
Finalization of the 15-6 findings, recommendations and
exhibits
End of Summary Timeline
013586
y
.
22 31
Facts that bear further consideration:
The members of 5th SFGA deployed to Afghanistan without
anticipating any extraordinary requirements to be custodial
caretakers of captured combatants but maintained the training
provided under FM 27-100 on the Law of War (..." regardless of the
nature of the conflict") and applying the five basic skills of
search, silence, segregate, safeguard, and speed - the
guidelines of STP 191-000-0001 training.
It is noted that this
training is focused on the moment of capture and initial
handling of EPWs and not so much on long term care or
confinement. Long-term confinement is a basic Military Police
function described.fully in FM 19-40, FM 19-4 and AR 190-8. In
fact, it was MP's that took Mr. Lindh into custody from
at the IIPIAirfield for transport by C-130 on 7 December 2001.
Additionally, the uncertain status of individuals like Mr. Lindh
was second only to our surprise to find Americans on the
battlefield - needing a continuing lengthy legal -debate that
ensued at the highest legal and political ,levels that partly
continues today;
EPWs? ... detainees?_ unwillin ombatants?
passively interested (but armed) observers?
was left
on the battlefield to determine a great deal of this on their
own. I feel they exercised an extraordinary sense of caution.
In the five or six da s at Mr. Walker was secured, safeguarded
and sustained by
, members of the ODA and 3rd Battalion
Medical staff went well out of their way to improve the health
and welfare-
of Mr, John Walker Lindh. This •is evidenced by the
daily examination by the Battalion Surgeon and fact that Mr.
Lindh was able to move on hiS own after this period ... as
compared to his capture when he was unable to move on his own at
all and initially had to be carried into the Turkish Schoolhouse
on a stretcher.
It is not widely reported ... but members of
5th SFGA and others in
gave up their own food, cots, heaters and sleeping gear
to Mr. Lindh in order ta sustain him and support his recovery
while at the Turkish Schoolhouse. Meticulous daily logs kept by
the team attest to this hourly occurrence. The members
of
even went so far as to manually heat water in makeshift vessels for Mr. Lindh to be able to bathe with hot water - on 0 1 3 5 S
more than one occasion.
23
The
Information withheld - Exemption (b)(5) - pursuant to a request from the Executive Office of the United States Attorney.
Upon their phased redeployment to CONUS, the members of 5
th SFGA
responded to the very first request for information in February
quickly and completely ... to the best of their individual
abilities without delay or trepidation. Many of the members of
5th
SFGA did not return to Fort Campbell until later — and some
not-until much later in April. It should be noted that there
was limited involvement from military legal staff in the very
important initial search in February.
A generic request for DOJ / FBI to
see what you have
was
not interpreted as an official demand, nor a complete statement
of intent ... nor certainly as a potential legal risk by those who
responded. To state later that "soldiers should have known" is
to disregard the vast difference in expertise there is
in this
area between a lawyer ... and a soldier/sailor/airman ... and was
perhaps unintentional to turn knowledge of the law against the
soldiers'
goodwill, and naive spirit of cooperation.
‘DU-1-4-1bqc-t-i
Coun eling abo th
photo began within 24 hours of its origin,
focu ing on ho inap o riate it was, between the two leaders of
and
That counseling continued at each
leve of command, as that level became aware of it, and reached
done the entire chain of command, again and again, to those in-
charge at ODA, Company and Battalion.
013538
24
Initial contact points for federal officials to meet with 5
th
SFGA personnel were neither through legal channels mor Command
channels, but started through Fort Campbell's CID office, direct
to a point of contact (CPTIIIIT), and c2ptinued this way for
sometime;
66-4 k fl L-4
•
Initial contact was represented by both federal
representatives and 5th SFGA as "cordial"
•
The DOJ representatives were heard to say;
o
"please facilitate a mee ing (with soldiers)
for us"
(to CPT fall, — b‘, -14
t--f
o
"- informal meetings -"
o
"_ we are just getting oriented - as to what
happened"
(with Mr. Lindh)
• Initial contact by federal representatives was not preceded
by any formalities nor any in-brief as to their intentions
-when coordinating the visit to the points of contact nor
during the initial visit with individual unit members nor
later to the Command element.
,
bl-e4ibR--c_-
• The Group Commander, COL
has never been
interviewed nor ever spoken with the Department of Justice
or FBI. 00T.J
did not see the photo-in-question
until early April upo his return CONUS when MAT
had
to print one off for m
b.Ley19.-a tog-e_-Lt-
The disk handed off to the DOJ representatives at the conclusion
of their very fir-St visit to Campbell on 21 February 2002 was
acknowledged by DOJ to be;
what 5th SFGA could lay their hands
on and prepare at this time
The DOJ representatives were
also heard to. say; "...(5th SFGA)- will get us more later-."
DOJ representatives did go back to Fort Campbell again in March
2002 but made numerous telephonic contacts over the intervening
months.
25y 3c1
Findings and Conclusions:
The•photo-inquestion was in fact, taken by SFC
on 7 December 2001 at -1320Z at the "Turkish School": in Mazar-e-
Sharif, Afghanistan, the safe house for Joint Coalition Special
'Operations Forces, in the moments just prior to the orderly.
transfer of John Walker Lindh into• the control of non-SOF US MP
forces.
The offending headband tape was removed from Mr. Lindh
'immediately after the photo was taken and this tape was not seen
elsewhere, other than on the photo-in-question.
No testimony was• offered that showed Mr. Lindh was aware of this
event, the photo or the wording. From Mr. Lindh's perspective,
he had received food, clothing, religious freedoms and even had
his latrine container cleaned for him by an ODA member. Six
-days after he had to be carried in on a stretcher, Mr. Lindh
walked out of the Turkish Schoolhouse on his own power for the
transfer event.
•
Steps were taken to limit the distribution of the photo-in
question within 24 hours of its existence, by the very same team
that. had taken it. This significantly pre-dates any legal or
judicial intervention.
Despite the•
ODA'best efforts to limit its existence,
dissemination of the photo-in-question did take place, primarily
electronically. .liowever, it was also transferred non-
electronically by 'physical means more than once as a stored
image on disk / CD./ camera flash card but was not found in any
printed format. These transfers cannot•be charted, tracked nor
cataloged as to time or electronic destination.
The staff and members of 5 th SFGA cooperated with federal
authorities on both visits to Fort Campbell and for telephonic
requests without delay or obfuscation. In addition; 5th SFGA
members rightfully assessed the confidentiality / classification
s r)rnfl
/ content of materials
-to-be-surrendered for operational
security preservation that is routine to SOF operations.
26
DOD-015544
Members of 5thSFGA who claimed innocence or "no knowledge" of the
photo-in-question or its disposition were truthful.,
Members of 5th SFGA involved here (and soldiers/sailors/airmen in
general) are not familiar with the complex legal rules
pertaining to evidentiary preservation nor the due process of
defense or prosecution. Statements by the US Attorney's
involved in the initial visits and interviews do not indicate
that these were described to 5 th SFGA members until the two
formal motions were delivered in April.
013591
27
0 ra-k-e 2?3
013592
• Although it is a common core task in basic soldier skill
training and included again during 18-series training for
Green Berets, additional training of ODA members and
SOF
staff in the handling of captured combatants and the
processing of captives / detainees is called for in light
of the non
linearity of today's battlefield ... and the
resulting difficulty of MP access through increased
emphasis on training for uncertainty, according to existing
regulations and manuals;
o AR 190-8
Enemy POW's, Retained Personnel,
Civilian Internees and other Detainees
o DA Pam 27-1
Treaties Gbverning Land Warfare
o FM 3-19.1
Military Police Operations
o FM 3-19.4
Military Police Leader's Handbook
o FM 3-19.40
Military Police Internment/Resettlement
Operations
o FM 19.4
MP Battlefield Circulation Control Area
Security and Enemy POW Operations
o FM 19-10
Military Police Law and Order
Operations
o FM 19.40
Enemy POW's, Civilian Internees and
other Detained Petsons
o FM 21-75
Combat Skills of the Soldier
o STP 19-95B1-SM
Soldier's Manual MOS 95B,
Military Police Skill
Level 1
o STP 19-95B24-SM Soldier
's Manual MOS 95B,
Military Police Skill Levels "2/3/4,
Trainer's Guide
o'STP 19-95C14-SM Soldier's Manual MOS 95C,
. Internment/Resettlement Specialist
Levels 12/3/4
o STP 21-1-SMCT
Conduct Combat Operatins
According to the Law of War
Task 181-906-1505
Selected topics and lessons should be reinforced through
counseling sessions, staff training and inclusion in future
Professional Development sessions.' .
013593
29
DOD-015547
•
As an addendum, federal authorities may have inadvertently
created an atmosphere of informal camaraderie with. 5
th SFGA
soldiers during their calls and visits that was"probably
mistaken for procedural informality. This may jeopardize
the soldier in a legal sense later on, if the other federal
agency assumes more formality or knows of more formality
-than it conveys to the soldier(s),
o If legal implications are even remotely possible
during such an encounter, the federal authorities have
a mandate of honor, if not a duty, to be truthful and
forthright ... to make the unit and individuals formally
aware of the gravity of the proceedings, the
consequences of their own' and unit actions and to
make legal counsel available beforehand as well as
during questioning, analogous to what is done in a
military Article 31 proceeding.
o The relationship of federal agency-to-military
contact, while l'comfortable° should not deprive the
subordinate agency of its rights; limit its actions
nor jeopardize an individual soldier, sailor or
airman's right. Likewise, the federal agency should
not insinuate itself as a friend ... then consider`
becoming a potential accuser.
•
Lastly, this, event ca have excellent training value,
through vignettes and the study of this particular
situation for
It should result in force-wide
review of oUr SOF thought process in understanding a combat
element's "detainee status determination" and the
addressing of what to do when a detainee is held for
unexpected periods by SOF elements.nr other combat elements
due to the Speed of the battle or the likelihood of
overwhelming numbers (like Desert Storm) or an inability to
effect a timely hand-off with custodial BP's. As such,
these events could lead to the need for a review of
possible doctrinal changes, added basic soldier skill
training, reinforcing 18-series training and
importantly, for repetitive refresher.emphasisper haps more
within Group
Professional Development training.
013594
30 7:1