DEPARTMENT of THE ARMY
US ARMY TRIAL DEFENSE SERVICE, REGION VII
UNIT 23, BOX 29901
APO AE 09086
|AETV JA RDC||1 April 2004|
MEMORANDUM FOR Staff Judge Advocate, Coalition Forces Land Component Command, Camp Doha, Kuwait APO AE 09304
SUBJECT: Rebuttal to AR 15-6 Investigation of the 800s' Military Police Brigade
1. Request that the findings and recommendations of the subject investigation relating to BG Janis L. Karpinski be set aside and no additional adverse action taken. The 800th Military Police (MP) Brigade (Bde) under the command of BG Karpinski successfully accomplished every mission assigned despite being under-strength and under-resourced.
2. I respectfully disagree with the findings and recommendations of the Investigating Officer. As will be shown below, the evidence contained in the report of investigation does not support the findings critical of BG Karpinski. Because the evidence does not support the findings the recommendations cannot be found to be consistent or supportable. (Paragraph 2-3b(3) and (4), AR 15-6, Procedure for Investigations Officers and Boards of Officers). I thus respectfully disagree with the 14 March 2004, legal opinion of LTC MarK L. Johnson, Deputy Staff Judge Advocate.
3. Request that you re-review the report of investigation in light of the following comments and especially the additional statements attached to BG Karpinski's rebuttal statement. These statements are predominantly from individuals not interviewed by the Investigating Team and thus not previously considered. They provide a vastly different perspective to the health of the command and the effectiveness of its Commander, BG Janis L. Karpinski.
a. The Investigating Officer relies heavily on the statements of COL Ralph Sabatino (Annex #47), LTC Robert P. Walters (Annex #50), and the Psychological Assessment of COL Henry Nelson, USAF (Annex #1) and the undocumented observations of the Investigating Team in reaching the unfavorable findings. COL Sabatino, by his own admission, visited Abu Ghraib Prison approximately 10 times on matters relating not to the inner workings of the Bde, but to the administrative review of records dealing with detained individuals. His observations where not focused and are recollections based on casual observations. He did not live or work at the prison. His basis of knowledge is thus suspect and cannot possibly be provided the same weight as others. LTC Walters was only at Abu Ghraib Prison. He has no basis of knowledge to comment on matters of BG Karpinski's command climate, style or effectiveness aside from his limited observations of MPs assigned to that facility. COL Henry's Assessment is the opinion of a psychologist. It is not fact and cannot legally form the basis of any finding of fact, as it is not couched in the form of an opinion reliable to a medical certainty. Finally, the undocumented observations of members of the Investigating Team cannot legally form the basis for any finding of fact. Because the observations are not reduced to writing BG Karpinski cannot now or in the future refute what she does not know. She was not present during the Team's visits and interviews; she did not see what they saw or hear what they hear during conversations with individuals at the sites visited.
b. The Investigating Team arguably discounts as not creditable the statements of LTC Gary Maddocks, LTC McGlone, 1LT Elvis Mabry, CPT Lawrence Bush, CSM Joseph Arrison and other MP Leaders who served in the 8OOth MP Bde with BG Karpinski. Their statements are replete with praise and admiration of her clear guidance, firm, fair and common sense enforcement of standards, her caring for the Soldiers of the Bde and her constant visits to see the Soldiers where they lived and worked, often at great personal risk. They know she tried her best to obtain support and replacements. They know higher headquarters did not respond to these requests. The findings in this subject area and specifically the finding that BG Karpinski materially misleading investigators concerning her travels is completely without the requisite evidentiary support.
c. BG Karpinski's failure to relieve or otherwise replace LTC (P) Phillabaum because of his ineffectiveness as the Commander, 320th MP Bn ignores the fact, noted in other findings by the Investigative Team, that there was no replacement mechanism for Soldiers leaving the 800th MP Bde for whatever reason. BG Karpinski, LTC Chew, LTC Phillabaum and other leaders knew and accepted this and thus kept individuals in positions where they may have been struggling, but finding a way to succeed even with assistance. This is also true of the comments about the Bde S-1 and S-4, MAJs Hinzman and Green being dysfunctional. None of these individuals were incompetent. None of these individuals were stellar performers, but in an organization operating significantly below full strength, not getting replacements, and receiving additional missions, their continued service was essential to mission accomplishment.
d. The investigating Officer finds the lack of a brigade level METL for operating a correctional facility and training to the METL significant. The simple response to this concern is that this is a non-doctrinal mission for the 800th MP Bde. The 800th Bde's mission is to deal with EPWs. This is completely different from housing Iraqi criminals and High Value Detainees. Upon receipt of the confinement mission, the 800th MP Bde developed and implemented a 15 June 2003 Iraqi Confinement Concept. This plan provided subordinate units the necessary guidance to conduct individual site planning and training leading to mission success. At the individual site level, the 800th MP Bde succeeded by relying on Soldiers with civilian correction system backgrounds and individual initiative to lead the training. As BG Karpinski said many times in her testimony to the Investigating Team, the magnificent Soldiers and subordinate units of the 800th MP Bde found a way to succeed despite numerous hurtles.
e. The Investigating Officer highlights LTG Ricardo Sanchez's 17 January 2004 written admonishment of BG Karpinski as further proof of her ineffectiveness and deficiency as a commander. This admonishment, from a senior leader who at the time was and continues to be outside her rating chain, was completely unsupported by any documentary evidence or other justification or explanation. It is not specific and thus fails to provide any basis upon which a subordinate could make a performance correction. It is fatally flawed and should not be considered by the Investigating Officer.
f. The findings of a lack of continuous Geneva Convention training, SOPs on dealing with detainees, and basic Soldier proficiency are without merit. Testimony from LTC O'Hare, LTC Maddocks, LTC McGlone, MAJ Proietto, 2LT Osterhout, and others note the training Soldiers received both at the mobilization site and during the course of the deployment. The actions of the Soldiers facing court martial charges for abusing HVDs and other detainees are so far out of the norm, that to conclude that additional training would have prevented the actions is ludicrous. It was 800th MP Soldiers who reported the Abu Ghriab and earlier Camp Bucca abuse to appropriate authority for investigation. This, in and of itself, proves than the Soldiers were trained and move importantly respected and observed the detainees basic fundamental human rights of dignity and respect.
g. The finding of a failure to articulate and enforce standards and the examples listed result from a misunderstanding of testimony and an interesting spin on the result of a commander disciplining her Soldiers. MPs were allowed to wear civilian clothes after duty hours. This was a decision to hopefully boost morale and give Soldier's a break from the routine of always being in uniform. Leaders, such as CSM Arrison, in his testimony noted that he and others at Abu Gbriab used common sense in correcting uniform and appearance deficiencies as there was no barber or tailor on site, the 165th MI Bn's LRS routinely won non-regulatory items while on duty with the implied consent of MI leaders. It is odd to list 12 separate disciplinary actions BG Karpinski initiated or completed against members of her command as proof of a failure to enforce standards. Such a "spin" is not in keeping with a common sense approach to documenting an effort to maintain good order and discipline. Once again the adherent behavior of a few should not be the basis for a generalized finding of no articulate or enforceable standards. Finally, the finding of soldiers writing poems and other sayings on their helmets and soft caps is void of documented evidence.
4. This investigation occurred after the bulk of the Bde had either packed up for redeployment and demobilization or had actually redeployed anal demobilized. The inability of witnesses to produce reports, unit journals, logs and SOPs at the time of their interviews can be attributed to these redeployment activities. It was impossible to produce the documents requested. Attached to BG Karpinski's rebuttal are numerous reports and plans that support the assertion that while not perfect, the 800th MP Bde operated successfully during Operation Iraqi Freedom, up to, including and after President Bush's declaration of the conclusion of major offensive operations.
5. Because the findings are flawed, the recommendations to relieve BG Karpinski from command and to issue her a General Officer Memorandum of Reprimand for 11 different acts are not consistent with the findings. Of particular note the recommendation to relieve and reprimand her for failing to obey an order from the CFLCC Commander regarding withholding disciplinary actions is not supported by a finding. Such a finding, if it existed, is not supportable, as the report of investigation contains no evidence of this order's existence, BG Karpinski's knowledge of it or her failure to obey it. As noted above, recommendations must be based on findings supported by evidence in the report of investigation. This regulatory requirement of AR 15-6 is not waivable. Any adverse action based on this legally insufficient investigation will also be legally insufficient.
6. BG Janis L. Karpinski is the first and only female general officer to lead soldiers in combat: She is a hero to the men and women of the 800th Military Police Brigade. As the successes of the Brigade are told around the country with the return of the Brigade's Citizen-Soldiers to their homes, she will become a hero to the American public as well.
7. PAC this memorandum is the undersigned at DSN: XXX XXX XXXX or e mail at firstname.lastname@example.org.
FRED P. TAYLOR
Regional Defense Counsel
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