New York Times / September 18, 2007

Green Berets Face Hearing on Killing of Suspect in Afghan Village

By PAUL von ZIELBAUER

FORT BRAGG, N.C., Sept. 17 — From his position about 100 yards away, Master Sgt. Troy Anderson had a clear shot at the Afghan man standing outside a residential compound in a village near the Pakistan border last October. When Capt. Dave Staffel, the Special Forces officer in charge, gave the order to shoot, Sergeant Anderson fired a bullet into the man’s head, killing him.

In June, Captain Staffel and Sergeant Anderson were charged with premeditated murder. On Tuesday, in a rare public examination of the rules that govern the actions of Special Operations troops in  Afghanistan, a military hearing will convene at Fort Bragg to weigh the evidence against the two men, both Green Berets.

The case revolves around differing interpretations of the kind of force that the Special Forces team that hunted and killed the man, Nawab Buntangyar, were allowed to use once they found him, apparently unarmed.

To the Special Forces soldiers and their 12-man detachment, the shooting, near the village of Ster Kalay, was a textbook example of a classified mission completed in accordance with the American rules of engagement. They said those rules allowed the killing of Mr. Buntangyar, whom the American Special Operations Command here has called an “enemy combatant.”

Mr. Buntangyar had organized suicide and roadside bomb attacks, Captain Staffel’s lawyer said.

But to the two-star general in charge of the Special Operations forces in Afghanistan at the time, Frank H. Kearney, who has since become a three-star general, the episode appeared to be an unauthorized, illegal killing. In June, after two military investigations, General Kearney moved to have murder charges brought against Captain Staffel and Sergeant Anderson — respectively, the junior commissioned and senior noncommissioned officers of Operational Detachment Alpha 374, Third Battalion, Third Special Forces Group.

The soldiers’ cases also highlight the level of scrutiny that General Kearney, who also ordered swift investigations into an elite Marine unit accused of killing Afghan civilians last March, has given to the actions of some of the most specialized and independent American troops fighting Taliban and insurgent forces along the border with Pakistan.

Mark Waple, a civilian lawyer representing Captain Staffel, said the charges against his client and Sergeant Anderson carry a whiff of “military politics.” In an interview, Mr. Waple said that General Kearney proceeded with murder charges against the two soldiers even after an investigation by the Army’s Criminal Investigation Command concluded in April that the shooting had been “justifiable homicide.”

A spokesman for Special Forces Command at Fort Bragg declined to comment on the shooting or the murder charges. Lt. Col. Lou Leto, the spokesman for General Kearney’s previous command, where the murder charges originated, also did not comment. General Kearney was promoted in July to lieutenant general and became deputy commander of Special Operations, where a spokesman declined to discuss the case.

On Oct. 13, 2006, when Captain Staffel learned that Mr. Buntangyar could be found in a home near the village where his detachment was guarding a medical convoy, he ordered a seven-man team to investigate the tip.

Driving toward Ster Kalay in two government vans, the Americans called the Afghan national police and border patrol officers to assist them, Mr. Waple said. Mr. Buntangyar had already been “vetted as a target” by American commanders, as an enemy combatant who could be legally killed once he was positively identified, Mr. Waple said.

After the Afghan police called Mr. Buntangyar outside and twice asked him to identify himself, they signaled, using a prearranged hand gesture, to Sergeant Anderson, concealed with a rifle about 100 yards away, Mr. Waple said.

From a vehicle a few hundred yards farther away, Captain Staffel radioed Sergeant Anderson, Mr. Waple said. “If you have a clear shot,” he told the sergeant, “take it.”

Confirming the order, Sergeant Anderson fired once, killing Mr. Buntangyar. The American team drove to the village center to explain to the local residents, “This is who we are, this is what we just did and this is why we did it,” Mr. Waple said.

The highest-ranking witness called to testify at the soldiers’ hearing Tuesday will be General Kearney, though it is unclear whether he will comply with the request.

Also scheduled to testify is Sgt. First Class Scott R. Haarer, a paralegal on General Kearney’s staff last October who, as part of the military justice procedure, signed the forms that charged Captain Staffel and Sergeant Anderson with murder.

In a notarized statement, Sergeant Haarer told defense lawyers last week that he would not have accused the soldiers of any crime if he had known that the Criminal Investigation Command had determined that the shooting was justified.