Investigator recommends against court-martial for soldier who killed Afghan civilian
By STEVEN BEARDSLEY | STARS AND STRIPES Published: August 2, 2012
GRAFENWÖHR, Germany — An Army investigating officer has recommended against court-martialing a soldier charged with negligent homicide in the fatal shooting of an unarmed Afghan civilian last year, concluding Sgt. 1st Class Walter Taylor properly identified multiple threats in the moments before he pulled the trigger.
“It’s good news for Sgt. Taylor,” his attorney, James Culp, said of the report. “I think it’s an accurate assessment of the evidence that was against him, and the (pre-trial) report exonerates him.”
The recommendation, which follows a June pre-trial hearing in the case, has been submitted to a senior commander in Bamberg, Germany, who can dismiss the case or forward it with his own recommendation to the general court-martial convening authority in Grafenwöhr for a final decision, Taylor’s lawyer said.
The Army charged Taylor, of the 54th Engineer Battalion in Bamberg, after he shot Afghan civilian Dr. Aqilah Hikmat immediately following a July 2011 firefight involving Taylor’s route clearance platoon in Wardak province.
In the pre-trial hearing, Taylor, 31, said he believed Hikmat was moments away from detonating a bomb when she stepped out of a car that had strayed into a firefight between U.S. troops and insurgents. Hikmat and her family, returning from a wedding, had attempted to drive around the firefight that erupted after Taylor’s platoon hit a massive roadside bomb, according to investigators.
The platoon fired on the vehicle, killing Hikmat’s son and niece and injuring her husband. Taylor and others later approached the vehicle as they traced what they thought was a command wire — often used to detonate roadside bombs — that appeared to run toward it.
Taylor was severely injured days later on another patrol, after a rocket-propelled grenade struck his vehicle. His face remains disfigured and in need of reconstructive surgery.
The case centered on the military’s rules of engagement and their application in the heat of combat: Does the instinct to defend oneself trump the stated rule that a soldier must positively identify a target before shooting?
Army attorneys argued Taylor failed to properly identify a threat when he pulled the trigger against Hikmat. Culp argued the Army was “Monday-morning quarterbacking” a split-second decision, and he suggested pressure from Afghan government officials led to the charges.
In a 10-page memorandum, investigating officer Lt. Col. Alva Hart of the 16th Sustainment Brigade in Bamberg rejected the Army’s arguments, determining Taylor faced a slew of potential threats, all of which were properly identified by either himself or his soldiers during the firefight and immediately after.
Taylor’s soldiers identified Hikmat’s car as a threat when it abruptly entered the firefight, Hart wrote. That threat — and its identification — continued even after the vehicle stopped and Hikmat suddenly emerged, and, with the presence of the command wire, became a threat for a possible suicide vest, vehicle-borne bomb or secondary improvised explosive device, Hart wrote.
With the combined threats, “[t]here are no reasonable grounds to believe that SFC Taylor negligently failed to obtain (proper identification) of Dr. Aqilah Hikmat as an imminent threat with the time and information he had readily available to him at the moment he fired his weapon.”
Citing the rules of engagement in Afghanistan and other military guidance, Hart wrote that positive identification was “only possible in hindsight.”
“As expressed throughout the documents in this case, (positive identification) is not a 100% certainty of hostile act or intent but a reasonable certainty based the information at hand (sic).”
Had Taylor waited to investigate further, it may have been too late, Hart determined, as his platoon was already within the blast radius of a bomb.
The investigating officer also dismissed two critical pieces of evidence against Taylor — testimony by a platoon member that Taylor smiled and taunted Hikmat’s husband after the shooting and Taylor’s original statement to a criminal investigating officer.
The account of the soldier, Sgt. Richard McKelvey, was undermined by the testimony of other soldiers who questioned McKelvey’s character and said they never heard Taylor’s supposed taunt.
Taylor’s statement to the investigator was questionable due to its inconsistencies, an indicator that the multiple pain medications Taylor was taking following his injuries had affected his ability to think clearly, Hart wrote.
Hart’s report and recommendations were submitted to Col. Darren Werner, the brigade commander. Werner can dismiss the case, according to Culp, or he can forward his own report to the general court-martial convening authority for the area, Col. Bryan Rudacille, of 7th Army Joint Multinational Training Center in Grafenwöhr.
Rudacille would then make the final decision as to Taylor’s case.
Should he ultimately be court-martialed and convicted on the homicide charge, Taylor could face three years in prison. He is also charged with dereliction of duty.
Eugene Fidell, a military law expert and professor at Yale University, said commanders do frequently go against investigators’ recommendations, so Thursday’s announcement does not mean Taylor is off the hook.
“It’s not uncommon to see those recommendations rejected either way, for or against a court martial,” he said. “It does give commanders some cover, if they decide to follow the recommendation, to say ‘I had this investigated and here’s what they said.’ But it’s not a total surprise to see them decide otherwise.”
Culp said he believed the report significantly lowered the likelihood of a court martial. He said Taylor was pleased by the news and eager to see the case dropped so he can continue medical treatment.
Taylor needs reconstructive surgery in San Antonio, but has been forced to wait due to the charges, Culp said.
“He would very much like to (transfer) to San Antonio with his family, get the reconstructive surgeries under way and continue serving in the Army,” Culp said. “I hope that’s possible with him.”
Stars and Stripes reporter Leo Shane contributed to this report.