NCIS Report: 06OCT03-NWWH-0193-7GNA/C

U.S. Department of Justice United States Attorney Southern District of New York 86 Chambers Street, 5th Floor New York, New York 10007 November 30, 2004 By Federal Express Lawrence S. Lustberg, Esq. Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C. One Riverfront Plaza Newark, N.J. 07102 Re:AACLU, et al., v. Department of Defense, et al., No. 04 Civ. 4151 (AKH) Dear Mr. Lustberg: Enclosed please find approximately 300 pages of documents responsive to plaintiffs' Freedom of Information Act requests in the above-captioned case. These documents consist of closed investigative reports from the Department of the Navy Criminal Investigative Service ("NCIS"). Also enclosed is a cover letter from NCIS explaining its response. Very truly yours, DAVID N. KELLEY U' -d States Attotne By: SEAN H. LANE ( 4898) PETER M. SKINNER (PS-9745) Assistant United States Attorneys Telephone: (212) 637-2737 Enclosures DEPARTMENT OF THE NAVY HEADQUARTERS NAVAL CRIMINAL INVESTIGATIVE SERVICE 716 SICARD STREET SE SUITE 2000 WASHINGTON NAVY YARD DC 20388-5380 5720 F04-1069 SEROOLJF/4U0559 NOV 2 3 Jennifer Ching, Esq. Gibbons, Del Deo, Dolan, Griffmger & Vecchione One Riverfront Plaza Newark, NJ 07102 Dear Ms. Ching: This is in response to your Freedom of Information Act (FOIA) request, on behalf of the American Civil Liberties Union Foundation, for information concerning the treatment of individuals apprehended after September 11, 2001, and held in United States custody in military bases or detention facilities outside the United States ("Detainees"). Initially, a search for records originated/maintained by this Service located a total of fourteen reports of investigation and various agency records, i.e. electronic mail transmissions responsive to your request. Additional efforts produced one more closed investigative file not previously identified, making a total of fifteen investigative files. Of those investigations, nine remain in a pending status and are being denied in their entirety under the provisions of the FOIA, 5 U.S.C. § 552(b)(7)(A).. The release of these records or information could reasonably be expected to interfere with ongoing enforcement proceedings. Four investigative files that have been completed were located in our Records Department at Headquarters. Those files, including agent's notes and/or electronic mail transmissions, if any, pertaining to each investigation have been processed for release. All releasable information is provided at enclosures (1), (2), (3) and (4), along with an explanation of exemptions taken under 5 U.S.C. § 552(b)(2), (b)(6), (b)(7)(A), (b)(7)(C) and (b)(7)(E)• The remaining two investigative files have recently been completed by our field office in Bahrain and are being forwarded to Headquarters for final retention by the Records Department. Upon receipt of those files, we will process and make a supplemental release to you in the near future. Some of the information contained in our report indexed as enclosure (1) was provided to us by the Office of the Secretary of Defense (OSD). Because we do not have the authority to release F04-1069 cont'd information other than our own, we are referring portions of our report to the OSD for a release determination and direct response to you. Various electronic mail transmissions responsive to your request have been processed and are included in this release as enclosure (5). As the official responsible for the partial denial of your request, I am advising you of your right to appeal this determination. Your appeal must be postmarked within 60 calendar days from the date of this letter. An appeal should be addressed to the Secretary of the Navy's designee: Office of the Judge Advocate General, (Code 14), 1322 Patterson Avenue, S.E., Suite 300, Washington Navy Yard, D.C. 20374-5066. The envelope and letter should bear the annotation "FOIA Appeal". Falling below the automatic fee-waiver threshold, fees in this case have been waived. N. M. BROCK LCDR, JAGC, USN 10 USC 936 10 USC 1044a End: (1) CCN: 060C.T03-NWWH-0193-7HNA/C (2) CCN: 13JUNO3-SDPE-0125-7XMA/C (3) CCN: 09JUL03-MWPE-0149-7XMA/C (4) CCN: 31MAR03-MEBJ-0087-7XMA/C (5) NCIS Electronic Mail Transmissions EXPLANATION OF EXEMPTIONa FREEDOM OF /NFORHATIoN ACT (a U.S.C. 5552): (b) (1) protects from disclosure national security information concerning the national defense or foreign policy; (b) (2) related solely to internal personnel rules and practices, the release Of which would allow circumvention of a statute or rule; (b) (3) specifically exempt from disclosure by statute; (b) (4) trade secrets and commercial or financial information obtained from a private !source which would cause substantial competitive harm to the source.? (b)(5) pre-decisional opinions and recommendations, inter-agency. or intra­agency memoranda or letters that show foreseeable harm if released. Also, attorney-client privilege and attorney-work product are covered; (b) (6) personnel and medical information, the release of which would result • in a clearly unwarranted invasion of personal privacy; (b) (7) investigatory records or information compiled for law enforcement purposes, which (A) could reasonably be expected to -interfere with enforcement proceeding's, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose investigative technigues, and/or (r) could reasonably be expected to endanger the life or . physical safety of any individual. PRIVACY ACT (5 tl.S.C. 5552a): (b) applies to information concerning other individuals which may not be released without their written consent; (j) (2) (A) applies to information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data, (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual, or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal lava; (k) (1) applies to information and material properly classified pursuant to en Executive Order in the interest of national defense or fbreign policy; .h . (k) (5) applies to investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, or access to classified information, release of which would a confident1 ,0 .=,--”•---c; and (k) (6) testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service, the release of which would compromise the' testing or examination process. DODDON 000001 . -3620 NCIS WHIDBEY ISLAND PAGE 02 1i/ib/2U4 08:40 360-2.V /7f ' -. -1 U.S. NAVAL CRIMINAL INVESTIGATIVE SERVICE REPORT OF INVESTIGATION (CLOSED) 18FEB04 ASSAULT (II)_CONTROL: 060CT03-NWWH-0193-7GNA/C I/NAS WHIDBEY ISLAND WA/ALLEGED ASSAULT OF IRAQI PRISONERS OF WAR COMMAND/BAVH0SP OAI( HARBOR WA/66097 MADE AT/NWWH/WHIDBEY ISLAND WA/_SPECIAL AGENT EXHIBITS (1) IA: Results of Interview of_andelb 41.1.11.111111111111111111.1111111/140CT03...(Copy All less NWBG/MWPE) (2) IA: Results of Interview with • 41111111,070CT03..(Copy All-leD8-NWBG/MWPE) (3) IA: Results of Interview with_070CT03- (Copy All less NWBG/MWPE) . (4) IA: Results of Interview with 080CT03.... (Copy All less NWBG/MWPE) (5)Sworn Statement of 111.11111111111.11.111111111111.1111080CT03.-(Copy All less NWBG/MWPE) (6)Military Suspect's Acknowledgement and Waiver of Rights/O8OCT03... (Copy AlL less NWBG/MWPE) (7)Sworn Statement of /080CT03-(Copy Al]. _less EMMG/MWM) • EXECUTIVE SUMMARY . eo 0 1 . Maya) Tfila - . . e mistreatment of one of more Enemy Prisoners of War (EPWs) by one of their Corpsman, identified as_, USN, while deployed to Iraq in support of USMC units in Operation Iraqi Freedom. Of the nine corpsman that deployed from NHOH, seven were available to interview. All of the remaining corpsman assigned to NHOH, minus 111111111..rere interviewed relative to any knowledge of the mistreatment of EPWs by any of their peers. One interviewee,41110 Illiiilbstated ll111111111 told him that he roughed, up some EPWs_while in frac'. VIIIIIMMIlwas interviewed and stated he never abused or assaulted any EPWs, but admitted to pushing one EPW's face in the dirt and tripping other difficult EPWs to put them on the ground. NCIS Field Office Marine West was contacted to determine if 111111111111111name surfaced in a separate investigation by that office involving the abuse of Iraqi EPWs, but there was no connection determined involving . The facts of this case and 'tatements were screened with the Trial Service Office West Det, NAS Whidbey Island, which indicated thatall..... actions would not merit disciplinary or prosecutive action. NQ further investigative activity will be performed by NCISRA Whidbey Island related to this case. Investigaton is closed. NARRATIVE 1. On 060ctol,_NHOH, reported he learned through a counseling session that a deployed Corpsman, while in Iraq, mistreated one or more EPWs. 111111111111111provided the last name of 1111111.1. the corpsman that allegedly "roughed up" some FOR °FRMBE ONLY WARNING CP DODDON 000002 zist_Loc¦EJNIsT .4AvicRimiN itfysmArIvE ERVICE Page 1 CONTENTS MAT BE DISCLOSED ONLY TO PERSONS' WHOSF OFFICIAL DUTIES REQUIRE ACCESS • NUlb WIllUbLY 15LAND_PAGE 03 u*J.,LA JUU GJI — JOGU uoviA LNWINH- U193 -Gy- SUBJ; I/RAS WHIDBEY ISL—f(ND WA//ALLEGED ASSAULT OF IRAQI PRISONERS OF U.S. NAVAL CRIMINAL INVESTIGATIVE SERVICE EPWs while in Iraq._was later identified as As background, nine corpsman from NHOH were informed on 29JANO3, that they were to be deployed to Iraq. On 31JANO3, the corpsman deployed to Camp Pendleton, CA. Subsequent to approximately three weeks of training in CA, the corpsman flew to Kuwait, where they were separated and assigned to different USMC companies within the 1st Marine Division. Seven of the nine Corpsman that deployed to Iraq are still assigned to-NHOH. One of the Corpsman, 1111.1111111111111111.1111. is now assigned to the NAVHOSP in Keflavik. Another CORPSMAN,_is now separated from the Navy. None of the Corpsmen served together in the same unit. 2. A complete list of the nine corpsman was obtained from 111111111110NROH. All of the remaining corpsman that are assigned to NHOH, minue4111111, were interviewed on 07OCT03. Five of the six corpsman interviewed, Could not cite specific information relating to the mistreatment of EPWs. Exhibits (1) through (4) pertain. 3. a friend of 1111.111111111111 stated_admitted to him, during a conversation they had after returning to the United States, that he roughed up some Iraqi EPws. Onilralilliaas the last of the corpsman to return back to the United States. Re returned in mid-SEP03, while some came back as early as JUNO3. Iiiiiiirelated thatOMINIONItold.himthat he forced .EPWs' heads-in the dirt -if they did-ndecomply with orders they were given to put their heads down on the ground. This action would occur when the EPWs were cuffed and laying on flu.. grouncl..____--Ac-G4a-rdi-ng---t-o— ­ said he had to set the EPWs straight if they were talking, moving, or not complying with orders directed at them. He said41111111111told him the first way to set EPWs straight is to yell at them, then resort to more physical means if required. mg 411111111111koldallnhe hit an EPW with an empty, tan, plastic, five­gallon water container for not complying with orders. 41111was unsure how many times the EPW was told to cease/correct his actions, and he was also unsure where the EPW was hit and how many times. MIN cited Ad appear e to have lost a significant amount of weight in Iraq. OM observed_as bitter, disgruntled and agitated upon returning from his deployment. Exhibit (5) provides further detail of the interview with 4. On 080CT03,111111111111111111was interviewed regarding his experience in Iraq and the allegations that he abused or assaulted any Iraqi EPWs. Subsequent to signing his Military Suspect's Acknowledgement and Waiver of Rights,4111111111111stated he never abused any EPWs. stated that of the eight other corpsman with which he deployed, h had regular contact with him while they were deployed. Subsequent to President HUSH declaring an end to the war, 41111111 stated he saw 4111111111111two or three times a week. 4111111paid he volunteered to assist the Marines in patting down EPWs after they Were taken into custody to ensure they were free of weapons or dangerous items. He volunteered for this duty to gain better acceptance of the Marines. Most of the Ent 11111ft DODDON 000003 encountered were looters. 4111111said he had to force some EPWs to FOR OFFICOSE ONLY WARNING THIS Do¢UIy1ENT IS THE ATHE NAVAL CRIMINAL tiVESTIGATIVE SERVICE Page 2 CONTENTS MAY BE OISCLosED ONI.T TO PERSONS WHOSE OFFICIAL DUTIES REQUIRE ACM!: HERETO, CONTENTS MAY NOT 8E DISCI Men Tn TUF D•cmvess ,.,...n`.........••••. .....•• •-••••••••••••• (3- . NClb Wt IVELY IbLANU_PAGE 04 tJtJ..00U-4jf .'-00.40 tUCTU -NWW110193 -7GN- SUDJ: I/NAS WHIDBEY ISLAND WA//ALLEGED ASSAULT OF IRAQI PRISONERS OP U.S. NAVAL CRIMINAL INVESTIGATIVE SERVICE the ground by tripping them. 4111111111offered he used a stick to tap the part of the body he wanted the EPW to move due to the language barrier- 11111111explained the use of the stick was as an intermediary device between verbal commands and direct manipulation of body parts. 011111said he stopped using the stick about JUNO3, after a general order from the Battalion Commander was disseminated ceasing the use of such objects. 111111111said he forced an EPW's face in the dirt to keep him from moving- did not admit to any incidents were he hurt an EPW and denied assaulting any EPWs. Exhibits (6) and (7) pertain. 5. The NCIS Field Office smarine west was contacted to determine if 61111111M name surfaced in a separate investigation by that office pertaining .to the abuse of Iraqi EPWs, which determined 1144..P0 role in events leading to the NCISFO Marine West investigation. The alleged events occurring during deployment to Iraq, were while augmenting the 1MARDIV based at Camp Pendleton, CA. 6. The facts of this case and statements made by 11111111.111were screened with_Ts0 West Det, Whidbey Island, WA, who indicated that actions do not merit prosecutive or disciplinary action. As such, no further investigation will be conducted by NCISRA Whidbey Island and this investigation is closed. -PARTICIPANTS-_-• allall11111111. Special Agent, NCISRA Whidbey Island, WA . Z special Agent, NCISRA Whidbey Island, WA Special Agent, NCISRA Whidbey Island, WA DISTRIBUTION NCISHQ: 0023B INFO: NWBG/MWPE/COMMAND (M) .4 I A DODDON 000004 °I USE ONLY WARNINGFOR 511:" THIS DOCUMENT IS THE PROPERTY OF THE NAVAL CRIMINAL I NVESTIGATIVE SERVICE Page 3.LAST am CONTENTS MAY eE DISCLOSED ONLY TO PERSONS WHOSE OFFICIAL DUTIES REWIRE ACCESS HERETO. CONTENT:: mar uns cc over,