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Troops often left to decide whether suspicious activity warrants detention

By JAMES FOLEY | STARS AND STRIPES Published: February 20, 2011

EDITOR'S NOTE:

On the front page of February 21 editions, Stars and Stripes published a photograph showing an Afghan detainee under arrest by U.S. forces. Although editors digitally obscured the detainee’s face to render him unidentifiable, we have since been informed by ISAF public affairs officials in Afghanistan that the mere taking of this photograph was a violation of U.S. military rules governing reporters embedded with U.S. forces. Stars and Stripes apologizes for the error. All photographs associated with this story have been removed on stripes.com.

HAYBATI, Afghanistan — Two D-cell battery packs wrapped in yellow tape with wires sticking from one end lay on the melting snow amid the goat droppings. They’d been found, along with a can of mortar charges, inside a rough shelter adjoining a family home. An Afghan stooped against the clay wall of his qalat, waiting for the American and Afghan soldiers to decide what to do with him.

It was hardly a cache worth writing home about, considering the soldiers of Whiskey Company, 2nd Battalion, 506th Infantry Regiment of the 101st Airborne had been trudging from compound to compound, clearing houses since first light. The residents of Haybati had been known to harbor Taliban and had never been visited by the current district subgovernor.

But the question of what to do with an Afghan male suspected of handling bomb-making materials cuts to the issue of how a U.S. commanding officer on the ground decides whether there’s enough evidence to take a man away from his family.

The rules regarding the taking of detainees are prescribed generally by ISAF but leave much to the discretion of the commander on the ground.

In cases of suspicious materials, like this one, a commander can detain a suspect if he believes the suspect has weapons or presents a security threat to coalition forces, according to the 4th Brigade Combat Team of the 101st Division.

With the late afternoon sun melting snow in the Sarobi Valley, Paktika province, on the border with Pakistan, Capt. Michael Hess hurried up the ridge to the compound where two Afghans were surrounded by one of Hess’ platoons and their partnered Afghan National Army soldiers. Staff Sgt. Sean King pointed to two battery packs and a can of mortar charges.

“The ANA found the mortar charge up in the roof and the batteries in the back of the barn, under a blanket,” King said.

The man who lived in the compound, his long beard flecked with gray, hunched against the wall of his qalat looking down. His goats bustled into the muddy courtyard. The older man who had been hunched next to him, shooed them off while the man’s daughters wailed from the hallway behind partially covered faces.

“We’ve heard several stories,” King, 37, told Hess. “His wife said she found the [can of mortar charges] in the mountains, and the batteries are used for a tape recorder.”

Hess nodded.

“Yeah, and I yanked one of those out of the ground after one of those almost blew me up,” he said.

As for the “in the mountains” story, Hess, 27, of Texas, has heard it many times.

Whiskey Company had sustained two direct IED blasts, both using the same taped-up battery packs connected to a homemade pressure plate, wired to explosives.

This wasn’t Hess’ first time finding possible bomb-making materials and people claiming to be innocent.

“My experiences in Iraq have been grilled into my memory,” he said later in a phone interview. “When we find something out of the ordinary, we think, ‘What is the disposition of the people in the house?’ If there are suspicious items, it’s generally an indicator to do a more thorough search. We approach the owner of the home to see what stories he comes up with, and how he changes the stories. Because we’ve now been in this area a good amount of time, we can more easily call a B.S. story.”

He gathered his interpreter, who also functions as his cultural adviser, and his ANA partners to weigh the pros and cons.

“What do you guys think?” he asked.

“The wife said [the batteries] were used in the house,” said Wahid, an Afghan lieutenant. “They use these a lot.”

The company’s most trusted Afghan interpreter, whom they’ve nicknamed “John,” agreed.

Judgment and restraint

But it was hard for any U.S. soldier to look at these objects and think anything other than, “These are the things that blow us up.” Hess began to employ a kind of investigative logic. His company had cleared many such villages in Sarobi district, he told Stars and Stripes, and 70 percent of the time they found something “not right.”

“We’ve been faced with people we feel are lying, but we’ve never taken someone without any physical evidence,” Hess said. Whiskey Company has taken about 20 detainees into custody, by his estimation.

“The fact is, they hid it somewhere,” Hess told his Afghan partners.

“Remember earlier today, when we were asking about Taliban? The people in the compound said, ‘We know not to go over there’? That was the direction of this compound,” Hess pointed out.

He mulled his options.

“If we take him to detention, he’s gonna live better than he does here. And if we release him back to the Sarobi District Center, the subgovernor will look like a hero to the people by showing his influence in releasing him.”

Such multiple considerations are things a battlefield commander must take into account, balancing an infantryman’s interest in getting potential bomb-makers off the battlefield with a politician’s instincts to think of the long-term perceptions of taking a potentially innocent man from the community, and how that will reflect on the subgovernor.

“We try to keep the ANA involved as much as possible,” Hess added. Of course after Hess made his points for detaining the Afghan, Wahid immediately agreed with him. But Hess claims that Wahid has disagreed with him over a potential detainee before.

“One time a guy had a bunch of physics formulas in his pockets, and as a soldier you think, ‘He makes [explosively formed projectiles],’ ” Hess said. “The ANA said he’s a student, that’s why he has this stuff. I was on the fence, but [the ANA are] not a subordinate force,” Hess said.

And sometimes the ANA are just not thorough enough, he said.

“Another time we had a suspect who had multiple cell phones who tried to run,” Hess said. “Wahid and the ANA made a cursory search of him, and said to let him go. We re-searched him and found more stuff and pointed out what they missed and why we have to keep him. It goes both ways. Sometimes I respect you guys and sometimes I stick to my guns,” Hess said.

‘Guardians of Peace’

This time, Hess’ arguments for detaining the individual prevailed. King placed zip cuffs on the man’s wrists, and the soldiers took him over the ridge and down to their vehicles while his daughters followed, crying. Surely they thought the Americans were taking their father away forever.

“Tell them I’m not trying to escape,” the detainee told John.

Hours later in his office at Orgun-E base, Hess shrugged.

“Aside from the direct fire engagement, there’s no black and white in Afghanistan. I trust John. He’s picked up weapons and fought with us in bad situations, but Afghans tend to be very kind people and tend to let each other off. … There’s too many things we could do to prove or deny his innocence (back on base), rather than just leave him there.”

“I continually try to point out to our guys we’re not judge and jury — we collect facts,” Hess said. Some Whiskey soldiers bet the man would be out within days.

Hess acknowledged the suspect could be totally innocent.

“We’re trying to drive in their heads this Guardians of Peace program,” Hess said, in which Afghans can report criminal or insurgent activity and get paid if the information is useful. Hess admitted that only a few Afghans had taken advantage of the program, and none in his area of operations.

The detention system

The 4th BCT has taken about 170 detainees in its six months in action in Paktika. About 40 have been sent up to the next echelon of detention at Bagram. About 30 have been sent to the Afghan National Directorate of Security to be prosecuted under Afghan law.

The rest have been released for lack of evidence.

The Haybati suspect was turned over to a Field Detention Center at Orgun-E. ISAF mandates all detainees be interrogated at an ISAF-approved facility.

Hess’ soldiers submitted sworn statements on how the materials had been found, and the accounts of their initial questioning of the suspect.

After the FDC guards take the suspect’s fingerprints and iris scans, he is medically screened and given any needed treatment. Next, he will be issued an orange jump suit and a cell.

According to ISAF rules, U.S. forces can hold the suspect for two days, during which time they can apply for a justification of 14 additional days to interrogate the suspect.

During the initial 14-day interrogation process, a military intelligence unit will question the suspect. “It’s pretty regimented what they can and can’t do,” said Sgt. 1st Class Cameron Regur, the brigade’s provost sergeant. The Orgun-E center holds about 10-12 detainees at a time.

By the 14th day, the suspect has to be released outright to the National Directorate of Security or sent for further questioning to the U.S. detention facility in Parwan province, with justification as to why he may have intelligence value beyond the 14-day limitation.

Whiskey Company’s most recent detainee has been interrogated for the past seven days. The brigade is preparing a case to send him to the defense facility in Parwan. NDS was also interested in his case, because possession of mortar charges is illegal under Afghan law.

Eight days later, his case was decided.

“He will be going to the NDS at FOB Rushmore on the 19th to be prosecuted in Afghan court,” Regur said in an e-mail. “This is one of the first guys NDS has actively asked us for custody for, which is a real improvement for them.”

foleyj@estripes.osd.mil