The cases of CPT Dave Staffel and MSG Troy Anderson seem very strange and the circumstances that led to their being charged with murder even stranger.
They are charged for the shooting of an Afghani male who had been identified and vetted by ODA 374 as a High Value Target and leader of a local terrorist cell. He was shot by MSG Anderson from approx. 100 yards on order from CPT Staffel. Both agreed they had positive identification (PID) of Nawab Buntangyar, and their Rules of Engagement (ROE) allowed them to use lethal force once they had PID of enemy forces or combatants. This standard was met and the hammer dropped.
The problem is the hammer was then dropped on these two gentlemen for this action seemingly in accordance with ROE. That is where the strangeness comes in. The ROE for detachments operating in the field is classified, but today I spoke with CPT Staffel's lawyer, Mr. Mike Waple. He has seen the ROE and was able to confirm that the standard in place was PID of a known enemy combatant. There is no argument about whether they got the right guy or whether they identified him properly. Mr. Waple states that it is "absolutely astonishing that charges were brought".
Some time after the event individuals either Afghani or American "raised red flags" about the incident and LTG Kearney ordered a 15-6 investigation to see if anything untoward had happened. This was conducted by an Air Force Colonel Pahana and he concluded that he saw no clear crime, and according to Mr. Waple, "That it was reasonable for ODA 374 to conclude that Nawab was a threat to the province and specifically an upcoming Medical Assistance mission they were going to conduct"
Because accusation had been made that possible violations of the Laws of Land Warfare had occurred, COL Pahana requested that Army CID conduct a criminal investigation to make a final determination. This investigation was conducted and the result was that CID concluded no violations of ROE or the Laws of Land Warfare were committed, they included a legal opinion from JAG concurring in this assessment. So then no problem for the two soldiers right?
Wrong, enter LTG Kearney. He was Commander of Special Ops Command- Central and he had final say on the disposition of this investigation and the lives of these two men. Against the judgment of two investigations he commissioned, he decided that murder charges were warranted. He believed that Nawab should have been captured rather than shot. There does not exist any order specifying that Nawab was to be captured, and having been vetted as a known terrorist he was subject to ventilation at any moment. Staffel and Anderson could not risk allowing a likely attempt to conduct a terror attack as they were trying to set up an upcoming medical treatment operation for villagers in the area.
That was a reasoned decision that should be and was made by a battlefield commander CPT Staffel. When Generals in offices over ride the decisions made in accordance with the applicable rules, we have a problem. This is not LTG Kearney's first instance of doing this either. He ejected the first Marine unit ever to deploy as part of Special Operations Command from Afghanistan after a vehicle ambush and shoot out. There was no clear cut answer as to what happened, but given conflicting US and Afghani statements LTG Kearney took the side of the Afghanis and sent the Marines home.
In this case he ignored his own experts and decided that the CPT on the ground made the wrong call. Mr. Waple called it "Inexcusable' for charges to be preferred. But they were and so there was an Art. 32 hearing in which the 15-6 investigation, the CID investigation and all other relevant factors were weighed and a recommendation to the Commander of Special Forces Command will be made as to whether charges should proceed or be dropped.
Mr. Waple said " We spent a day and a half arguing about whether he was right or correct in shooting the guy and we can't even all agree. That Captain had to make a decision immediately" The Art. 32 finished up yesterday and we will soon find out if our Special Ops troops can feel comfortable that their command has their backs or not. The jury is definitely out on LTG Kearney.
Disclaimer: I think I know MSG Anderson, although I haven't confirmed that.