David “Bo” Bolgiano, J.D., M.S.S., is a retired military officer and former Baltimore police officer with over 34 years of combined service. He has served in multiple combat deployments with Special Operations Forces and the 82nd Airborne Division in Iraq and Afghanistan, and last served as a Faculty Member at the U.S. Army War College. He is author of Combat Self-Defense: Saving America’s Warriors from Risk Averse Commanders and their Lawyersand co-author, with Jim Patterson, of Fighting Today’s Wars: How America’s Leaders Have Failed Our Warriors. He currently trains, lectures and testifies as a recognized use of force expert for police and military clients and audiences.
Build a Bigger Army? Think Again
By
Lieutenant Colonel David G. Bolgiano, USAF (Ret.)
U.S. Army Secretary Mark T. Esper recently spoke about the importance of growing the
Army in a difficult recruiting environment. His remarks highlighted challenges to the
Trump Administration’s stated plan to increase the size of the Army to over 500,000
soldiers. One of the biggest hurdles Esper and the President will face in convincing
parents and young recruits that the Army is a viable career option is the perception that
the United States will demand that the potential recruits risk their lives for their country
then abandon them when they faithfully execute their duties in combat. Military parents,
like the author, have legitimate concerns. The Army easily sends young American
soldiers to Leavenworth, yet seems incapable of trying and executing the likes of Khalid
Sheik Mohammad.
The enemies of our Republic today recognize — just as communist General Giap did in
Vietnam — the strategic value of sowing mistrust amongst the American public over both
the value and legitimacy of the American war effort. The Taliban, for example, are so
effective at ringing the “noncombatant casualty” bell in Afghanistan, that the first two
briefing slides shown at any International Security Assistance Force [ISAF] Command
briefing are dedicated to such meaningless and easily skewed statistics. This harmful and
fatally flawed approach demonstrates that concerns over injuries to noncombatants take
priority over any other element of military operations in theater, including the injury or
deaths of American military personnel.. Career bureaucrats in the military with no
intimate combat experience are demonstrably susceptible to the dangerous groupthink
that threatens our ability to kill the enemy and protect Americans both at home and in
combat zones. Army lawyers, known generally as JAGs, are similarly not immune to the
dangerous groupthink that threatens our sons and daughters in uniform.
With this reality as background, it well behooves both Esper and Secretary of Defense
Mattis to look beyond the legal advice they are getting from military lawyers concerning
the case of United States v. First Lieutenant Clint Lorance. This case represents a glaring
example of how the Army and its lawyers abandoned a brave, young American soldier
for the purpose of political expediency – and even gave tainted and arguably unethical
advice to his chain of command and senior civilian leadership.
In July 2012, First Lieutenant (1LT) Clint Lorance had just assumed duties as a Platoon
Leader in the 82nd Airborne Division in Kandahar Province, Afghanistan. Clint’s
predecessor, 1LT Dom Latino (a charismatic leader loved by his men) was wounded
severely in the same area Clint was assigned to patrol. Clint was leading a patrol when
one of his Soldiers fired on a motorcycle ridden by three military-aged men bearing down
on Clint’s Soldiers. The use of motorcycles as vehicle-borne IEDs was a known enemy
tactic at the time. Recognizing the encounter as fully consistent with local insurgents’
demonstrated ambush tactics, Clint made a split-second decision and ordered the other
members of his platoon to defend themselves by firing on the men. Clint’s platoon killed
two and one escaped. Initially, on the basis of false information they received, the men
thought they had mistakenly killed innocent village elders, and this led to a frenzied
attempt by both command and their lawyers to hold someone responsible. Why? Because
of other incidents involving noncombatant casualties in Afghanistan at the time. It was
apparently easier for them to deal with dead or wounded Americans than explain to their
political masters in Washington why another noncombatant was inadvertently killed.
To that end, nine of his platoon members – minus Lorance – were crammed into a
medium-sized tent and the Army lawyers and their criminal investigators, the CID agents,
told them they would all be charged with murder. Once these platoon members became a
captive audience facing the possibility of life imprisonment, Army officials then offered
the young soldiers the opportunity to save their own skins if they would agree to sacrifice
their platoon leader, 1LT Lorance. This is the same brand new platoon leader who they
had known only briefly and who had only just replaced their long time beloved former
platoon leader who had been wounded in combat.
The lawyers and CID said words to the effect, “However, if you testify against Lieutenant
Lorance, here are forms that immunize you from prosecution. What’s it gonna be?” The
content of the statements that resulted from that kind of coercion, under those
circumstances, was a foregone conclusion. Knowing that some of the platoon members
resented 1LT Lorance for instilling among his troops the tough discipline he earlier
learned as an enlisted noncommissioned officer, Army bureaucrats had selected an
unproblematic oblation for this Faustian exchange. In my view, this wrongful use of such
“immunized” testimony is nothing short of extortion. What is more, those nine Soldiers
were not only given immunity for murder, but also ordered to testify at the trial.
As a result, Clint Lorance was convicted by a General Court-Martial at Fort Bragg of
supposedly murdering two noncombatants and attempting to murder another in
Afghanistan on a combat patrol in 2012. To railroad Lorance, the Army JAG bureaucrats
violated their sworn ethical obligations as well as its own legal rules by:
– Failing to disclose to Clint’s defense team that the three supposed noncombatants –
referred to 33 times by the prosecution in court as “civilian casualties” or “tribal elders” –
were in fact biometrically linked (left their fingerprints and DNA on bombs) to
manufacturing improvised explosive devices. The Army knew the names and histories of
the suspects on the motorcycle, yet crossed them out on the charging document to replace
them with “three males of apparent Afghan descent.” This is a gross violation of the
Constitution and landmark Supreme Court case of Brady v. Maryland, 373 U.S. 83
(1963), which requires the prosecution to disclose and not hide all exculpatory
information;
– Citing in its appellate opinion that Lorance “changed the rules of engagement” – a
charge of which trial court found him Not Guilty;
– Improperly and unethically inserting into the record of trial – without telling appellate
defense counsel – irrelevant and inadmissible newspaper articles that were critical of
Lorance. This record of trial was forwarded to the Secretary of the Army by the Office of
the Judge Advocate General for final action (approval) of the findings and sentence;
– Withholding from the defense critical situation reports written immediately post-
incident that showed, among other exculpatory things, that Lorance’s unit was being
shadowed and targeted for an “impending attack/ambush” and that at least one
“confirmed insurgent” was killed. In fact, in December 2015 at Bagram Airfield, the
enemy killed six American airmen by exploding a motorcycle suicide improvised
explosive device (IED). As a direct result of the fear of “getting into trouble” for firing at
suspects, none of the six Airmen fired their rifle and the rider road up on their foot patrol
detonating himself, killing all. Had Lieutenant Lorance led that patrol, the enemy
motorcyclist would have been killed, not Americans;
– Failing to tell the court that the so-called “civilian casualties” could have been targeted
and killed by American drones or aircraft for directly participating in hostilities. They
were in fact combatants, or in the terms of the Rules of Engagement, they were properly
defined as “hostile actors,” subject to attack at any time and in any location. The Army
knew their true status during the trial and yet these same attorneys – by commission or
negligence – repeatedly lied to the convening authority, court and the jury throughout the
trial;
– Misleading both an audience at the Center for Strategic and International Studies (CSIS)
about the underlying facts and legal principles of the case. A Brigadier General in the
Army JAG Corps who is also the Chief Judge of the Army Court of Criminal Appeals
violated basic ethics principles both by this deception and by even speaking about the
case in a public forum when the very case was being considered by the Secretary of the
Army and before final action on the case was even taken; and,
– Misleading members of Congress as to the underlying facts and legal principles in the
case. The Judge Advocate General of the Army was ignorant and uninformed enough to
tell a Congressman, “Lorance violated the rules of engagement.” The Army JAG Corps
seems more interested in patting itself on the back about stamping out war crimes, real
and imagined, than in following due process or prosecuting the real war criminals in
Guantanamo Bay and amongst the ranks of our enemies. In the last 10 years at
Guantanamo Bay, the JAG Corps has prosecuted only 8 of our enemies for war
crimes. At that rate Herman Goering would have died in prison of old age had the WWII
Nuremburg Trials proceeded at such a maddeningly slow pace. Why is it that the Army
is more interested, enthusiastic and effective about unfairly prosecuting the good guys
and not our enemies?
The following slides visually depict the Army’s treachery here:
1LT LORANCE’S PLATOON OPERATED IN ZHARI
“THE HEART OF DARKNESS”
(BIRTH PLACE OF THE TALIBAN)
2007 to 2014
Kandahar Province:
2,630 IED Events
Zhari District:
785 IED Events (30%)
75% of Taliban Bomb
Makers in Kandahar
have been identi>ied
in Zhari District
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 1 2
Afghanistan
30 Days Prior to 2 Jul 12: 28 IED Events in Zhari District
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
KIA
Covin Fitts Sitton Jones Bell Olivas Lallier Neal
Watts Dickhut Bear Batista Berry Hernandez Povoliatis Morgado
Jun Jul
1LT Clint Lorance replaced 1LT Dominic Latino,
the Platoon Leader, who was medically-evacuated
with wounds to his
eyes, face, and
abdomen from
an IED Blast
LORANCE
MAR – AUG 2012: U.S. Army Suffered16 KIAs & Dozens of WIAs
AN ROE COMPLIANT ENGAGEMENT
NOT “MURDER” OR “ATTEMPTED MURDER”
3 AFGHAN MEN ON
ONE MOTORCYCLE
approach 1LT
Lorance’s exposed
platoon at a high
rate of speed
PFC SKELTON
observes the 3 men
and, in compliance
with the ROEs, ?ires
at them, but misses
(Testimony)
1LT LORANCE,
unable to observe
the 3 men or ?ire his
weapon, orders his
overwatch vehicle to
engage (Testimony)
OVERWATCH
VEHICLE,
engages within
seconds and kills 2
of the 3 riders
(5 witnesses)
4th AFGHAN MAN is
wounded by 1LT
Lorance’s Platoon,
after motorcycle
engagement, on the
same combat patrol
LORANCE
1 2 3 4 5
Fingerprints and DNA
from US Army databases
revealed 3 of the 4 Afghan
men (Ghamai, Karimullah,
and Rahim) as enemy
combatants/insurgents,
NOT civilians
RAHIM KARIMULLLA
H
GHAMA
I ASLAM
E-KIA
E-KIA
E-WIA
1LT CLINT LORANCE’S PLATOON: 2 JUL 12
ESCAPED
1LT Lorance
unlawfully
was
convicted of
murdering 2
“civilians” and
attempting to
murder a 3rd
He is serving 19-
.
years in prison
This incident occurred in the hot and uncertain realm of combat. . In an analogous
context, almost 30 years ago, the United States Supreme Court wisely and realistically
said, “ … such reasonableness must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight … the calculus of
reasonableness must embody allowance for the fact that police officers are often forced
to make split-second judgments about the amount of force that is necessary in a
particular situation in circumstances that are tense, uncertain, and rapidly evolving.” –
Graham v. Connor, 490 U.S. 386 (1989). Clint Lorance was never afforded this same
reasonableness standard of review afforded to every law enforcement officer in America
nor was it explained to the jury.
The Court of Appeals of the Armed Forces even refused to hear Clint Lorance’s appeal,
deliberately eliminating his chances of taking it to a fair and impartial tribunal: the
Supreme Court of the United States. Criminal defendants in the Article III (civilian)
judicial system have an automatic right to appeal to federal courts of appeal and then a
right to petition the Supreme Court for final review. In contrast, defendants in military
cases may not appeal their cases to the U.S. Supreme Court unless the highest military
court, the CAAF, grants discretionary review in the case. By CAAF’s fiat, a warrior is
provided less due process than a drug dealer or murderer in civilian courts.
Accordingly, the Commander-in-Chief needs to be informed of this gross miscarriage of
justice so he can rightfully stand behind this junior officer subordinate and right a wrong
that the military justice system has allowed to happen. Not to do so would be detrimental
to the good order, discipline and morale of our Republic’s warriors. Moreover, parents of
military-aged men and women will be less inclined to send their loved ones off to war in
light of how this case was handled.
PROSECUTOR WITHHELD THE FOLLOWING EVIDENCE
WHICH 1LT LORANCE COULD HAVE USED TO DEFEND HIMSELF
On 2 JUL 12,
1LT Lorance’s Platoon:
Was being scouted
for “an impending
ambush/attack“
and
Killed an insurgent
on the battle?ield
RAHIM GHAM
AI ASLAM KARIMULLLA
H
Fingerprint and DNA
Evidence identifying GHAMAI,
KARIMULLAH & RAHIM
as enemy combatants when the
prosecution claimed they were
“civilians”
The Commanding General gave
9 U.S. Soldiers
immunity from murder charges and
ordered them to testify
BIOMETRIC EVIDENCE** US ARMY REPORT CG’s IMMUNITY
LORANCE
IMMUNITY FOR 9 U.S. SOLDIERS
**NOTE: The U.S. Army claims DNA and ?ingerprint evidence is irrelevant and inadmissible. However, the law allows this evidence:
1) to rebut prosecution’s theory that killings were unlawful because targets were “civilians;”
2) as mitigation to lessen appropriate criminal offense and lessen or eliminate punishment; and
3) as “evidence material to the preparation of the defense,” i.e., for any number of theories to defend 1Lt Lorance.
E-KIA
E-KIA
ESCAPED
E-WIA
E-KIA
If the United States is so concerned about injuring or killing true noncombatants, it ought
not to have sent its military to conduct the precision surgery best left to the Department of
State or other agencies. Moreover, senior leaders in Afghanistan routinely target such
bomb makers with drone and bomb strikes, often times killing many more noncombatants
than those at the tip of the spear might. Why is a young man who made such a call under
the stresses of combat held to a differing standard? Lorance is yet another casualty of a
war that needed to end in April 2002. Good luck, Secretary Esper, in building a bigger
volunteer Army when that very entity gives more deference to our enemies than our sons
and daughters in uniform.