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Investigations in Bales case still not public

More than nine months have passed since Staff Sgt. Robert Bales was sentenced to life in prison for killing 16 Afghan civilians, but the Army still will not release its investigations into the massacre he perpetrated while serving with a Joint Base Lewis-McChord Stryker brigade.

The Army is adhering to a judicial process that technically does not end until a three-star general at JBLM considers the full record of Bales’ court-martial and any requests that might be submitted to grant him clemency, said I Corps spokesman Col. Dave Johnson.

As a result, the Army won’t disclose its reports on Bales until September at the earliest — 13 months after the married father of two from Lake Tapps was sent to prison at Fort Leavenworth, Kansas. The timeline could be extended depending on when the Army receives Bales’ clemency bid.

News organizations requested the documents after Bales’ court-martial in August. It’s not clear what’s in the reports; they were not discussed much in court.

They were commissioned by a four-star general in Afghanistan just after the massacre to look into whether anything could have been done by the soldiers around Bales to prevent the slaughter.

The Army moved much more quickly to release a similar report that followed the prosecution of four JBLM soldiers, led by then Staff Sgt. Calvin Gibbs, who murdered three Afghan civilians in 2010.

That report explained how commanders missed signs of a marijuana-smoking, rogue Stryker Brigade platoon. It revealed career-ending sanctions for some leaders, and it was released through the Freedom of Information Act four months after the last “kill team” case concluded.

For some reason, the process of resolving unanswered questions about Bales’ war crimes is unfolding more slowly.

“The military is (its) own worst enemy on these kinds of things,” said Eugene R. Fidell, who teaches military law at Yale University. “This kind of foot dragging fuels curious suspicion and mistrust. The military should recognize that how it deals with requests like this does have an impact on the public’s perception of the administration of justice.”

Fourth deployment

Bales, an Ohio native on his fourth combat deployment with a JBLM Stryker brigade, murdered Afghan villagers, mostly women and children, on March 11, 2012. He slipped away from his base in southern Afghanistan to attack two nearby villages during predawn raids.

“There’s not a good reason in the world for why I did the horrible things I did,” he confessed in court as part of a plea agreement sparing him the death penalty.

The military presumably viewed Bales’ massacre as an isolated incident. Several Army leaders in Bales’ chain of command have been promoted or retired and continue to work with the military as civilians.

No one above the rank of first sergeant in Bales’ chain of command from JBLM testified at his court-martial or pretrial hearings. The command investigation the Army is withholding could include an assessment of morale and discipline at the small Special Forces outpost where Bales was stationed on the night of the killings.

Military courts are far less open than civilian ones, where court filings, transcripts and other documents are available to the public — even before a trial takes place.

The Army does not release court filings. Any information that reaches the public prior to a court-martial is either released through defense attorneys or aired in court at pretrial hearings.

At key points, senior Army commanders consider whether to proceed with a court-martial. They decide whether the evidence merits a trial and what kind of punishment the defendant should face.

For a high-profile case, those calls rest with JBLM’s I Corps commander. That’s Lt. Gen. Stephen Lanza, who will decide whether Bales should receive clemency.

Lanza and his predecessor, Lt. Gen. Robert Brown, would have access to any command or criminal report on Bales’ killings. It’s unclear to military law experts how releasing the investigations after the court-martial could influence the senior officers.

“I just don’t see what the problem is,” Fidell said. “Is the problem the command would find out about something it doesn’t already know? I find that hard to believe.”

Bales’ lead attorney, John Henry Browne, said in an email that he is working on a clemency motion for his client.

'Kill team'

The Army did not wait for a clemency hearing to release documents about the so-called “kill team” in 2012 when a series of courts-martial concluded regarding the murders of the three Afghan civilians by JBLM Stryker soldiers.

The main trial in the “kill team” investigation took place in November 2011 when a court-martial panel sentenced Gibbs to life in prison for orchestrating the three murders.

The final case wrapped up in February 2012 when the Army dropped a murder charge against accused “kill team” participant Spc. Michael Wagnon.

Reporters who requested the Army investigation into Gibbs’ commanders received the report in June 2012, four months after Wagnon’s case ended.

Clemency requests apparently did not weigh on the decision to release the “kill team” investigation. Lt. Gen. Brown rejected Gibbs’ bid for clemency in November 2013 — 17 months after the release of the command investigation.

Gibbs’ attorney, former Marine lawyer Phil Stackhouse, could not think of a reason for the military to hold on to the Bales reports so long after the trial.

“I’m not sure how that investigation would affect the clemency matters,” he said.

One difference between Gibbs’ and Bales’ reports could be the branch of the military that considers itself the “owner” of the command investigation.

Gibbs’ report was requested by former I Corps Commander Gen. Curtis Scaparrotti when the soldiers had returned to JBLM from Afghanistan. It was released by JBLM authorities.

Bales’ report was requested in March 2012 by Marine Gen. John Allen, the former commander of international forces in Afghanistan. The Pentagon’s Central Command, which manages military operations in the Middle East, holds the Bales investigation and has refused to release it through the Freedom of Information Act until I Corps completes Lanza’s final review of the soldier’s sentence.

JBLM attorneys told Johnson the case should be resolved this summer, setting up the release of the document for later this year.

“There’s a process we’re involved in. All parties have to review this. We don’t take it lightly,” Johnson said. “There’s not a stopwatch on it.”

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