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Officer rules against court-martial in Afghanistan shooting death

By Kim Murphy, Los Angeles Times –

SEATTLE—An Army sergeant facing a charge of negligent homicide in the fatal shooting of a popular Afghan physician should not have to face court-martial, a military hearing officer concluded Thursday.

In a strongly worded report, Lt. Col. Alva Hart found in favor of Sgt. 1stt Class Walter Taylor on every point, saying there was insufficient evidence to support the charges against him. The shooting — in the wake of a confusing firefight in central Afghanistan — has raised questions about the strict rules of engagement to which U.S. soldiers are held in attempting to minimize civilian casualties.

The findings now go to a senior commander at Taylor’s home base in Bamberg, Germany, where they’re expected to play a substantial role in the decision on whether to drop the charges or proceed to a court-martial.

Taylor, a 13-year Army veteran with four combat deployments in Iraq and Afghanistan, has been facing the possibility of three years in prison as a result of the July 2011 firefight, when insurgents attacked a U.S. convoy on the main road between Kabul and Kandahar.

The firefight started when a roadside bomb blew up a heavily armored vehicle at the front of the convoy, seriously injuring five soldiers inside. Taylor and his men exchanged fire with insurgents who were fleeing in a pair of white cars.

Amid the gunfire, an unknown black car sped through the scene, coming to a halt near the command wire for the roadside bomb. After the white cars had escaped and the gunfire had stopped, an unidentified figure emerged from the car and moved toward its rear. Taylor and another soldier opened fire, later saying they believed the person to be an insurgent who might set off a second bomb or a suicide vest.

But it was a civilian woman: Dr. Aqilah Hikmat, head of the obstetrics and gynecology department at the local provincial hospital. Hikmat’s husband, who was injured in the firefight, said his family had unwittingly driven into the scene and was attempting to escape when their car came under fire.

Army officials opened a murder investigation and initially filed charges of manslaughter, later reducing the charges to negligent homicide and dereliction of duty. They presented their case in June in Bamberg, Germany, during a three-day hearing under Article 32 of the military justice code.

The case struck a chord among U.S. soldiers, many of whom have said the Army’s drive to minimize civilian casualties, although justified, has resulted in rules of engagement that make it increasingly difficult for soldiers to defend themselves in combat.

More than 5,600 people have signed on to a Facebook page in support of Taylor, who was seriously injured in a grenade attack a little more than a week after the firefight. The case has delayed his medical treatment in the U.S., needed to help repair his vision and reconstruct his face, which was severely disfigured in the attack.

Prosecutors said Taylor failed to comply with policies requiring soldiers to establish positive identification that a potential target is a combatant — and has demonstrated hostile intent — before firing.

Hart in his report found no fault with the rules of engagement nor with Taylor. He found that the 31-year-old noncommissioned officer had complied with rules as well as could be expected.

Several members of the convoy had opened fire on Hikmat’s car long before Taylor began approaching it, he noted, and at least one of them had positively identified it as hostile.

“By driving into the firefight, the vehicle operated in a manner inconsistent with the prior experience of any of the testifying members of the (platoon). Due to its unusual behavior, the potential threat posed by the vehicle as a possible (vehicle-borne improvised explosive device) should have increased in the minds of (platoon) members,” the officer found.

“Therefore, I find that a reasonable person, under these circumstances, with the training provided, and knowledge gained through daily operations, would determine that the vehicle’s actions were the prelude to an imminent use of force against (the platoon),” he said.

In any case, he added, positive identification of hostile combatants “is based on a reasonable certainty, … not a 100 percent mathematical certainty, and … requires balancing the risk of collateral damage with mission objectives and force protection.”

Hart also rejected one of the pieces of evidence chiefly used by the prosecution to argue that Taylor was guilty: a statement by one of his platoon soldiers, Sgt. Richard McKelvey.

According to that statement, Taylor smiled when he came upon Hikmat’s husband, who lay injured in the car, and yelled, “Yeah, that’s what you get.”

McKelvey was not to be trusted, Hart concluded, because he appeared to have a grudge against Taylor and was described by his superiors as “a person of weak personal integrity.”

“He was a man known to bend the truth to his needs when it was to his advantage,” the officer wrote.

Likewise, Hart rejected as evidence a statement Taylor allegedly made to one investigator from the Army’s Criminal Investigative Division, in which he said he was “very angry” and “out to get somebody” for the injuries inflicted on his soldiers by the roadside bomb.

Taylor has said he does not remember making such a statement and never would have, though he was under the influence of several strong pain-killing drugs at the time of the interview as a result of surgeries on his face.

Hart said the statement was “invalid” due to the “apparent mental incapacitation” of Taylor during the interview.

James Culp, Taylor’s civilian attorney, said he believed the hearing officer’s findings were forceful enough that the case would not proceed to court-martial.

“This is a recommendation on whether or not the case should proceed to trial. And this officer found he didn’t even have probable cause to find an offense had even taken place,” said Culp.

He said that, when Taylor heard the officer’s recommendations, he began weeping “for the first time” since the case began.

“I’m exceedingly pleased,” Culp said. “I’m not used to the right thing happening.”

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