There is an interesting criminal investigation that seems to fulfill the Washington DC adage “One week on the cover of Time, next week doing time.” The point is that sometimes press is not a good thing. That would seem the case of Special Forces Maj. Matthew Golsteyn who went on Fox News for an interview. In the course of the interview, Golsteyn appears to admit to murdering a suspect in his custody in Afghanistan. Army investigators also watch television and immediately reopened the investigation into the death of the accused Taliban bombmaker.
The controversy highlights how fluid the standards have become in the age of “kill lists” and targeted killings. Golsteyn already admitted to killed the unarmed suspect after a polygraph test. However, the investigation was closed despite the fact that the suspected Taliban member was not on any “kill list.” The suggestion seemed to be that Golsteyn would have been free to kill the man if his name was on the list. Yet, he killed him anyway. The suspect had been captured during the battle of Marja in February 2010.
Since he was not found to be a bomb maker, he was supposed to be released. It is important to note that the rules of engagement err on the side of holding suspects so the ordered release of the man indicated that no hard evidence was found of his guilt. Golsteyn however was not satisfied with those rules of engagement. He was part of 3rd Special Forces Group and said that he was afraid that the suspect would target Afghans who were helping U.S. soldiers. In his interview with Bret Baier he said “There’s limits on how long you can hold guys. You realize quickly that you make things worse. It is an inevitable outcome that people who are cooperating with coalition forces, when identified, will suffer some terrible torture or be killed.” He then said that he decided to simply kill the man.
It is strange that the investigation was closed earlier if, as reported, Golsteyn admitted to killing the unarmed suspect. It is not clear what the new information might be unless Golsteyn suggested other mitigating circumstances that did not appear in his interview.
Golsteyn insisted in the interview that “I made a lawful engagement of a known enemy combatant on the battlefield.” He appears to be drawing a legal technicality that the suspect was not a “detainee” because he was “never processed.” So, he said he made a decision in line with his orders: “We were told that protecting the civilian population was priority number one, even at the cost of our own lives. I did that.” However, this was a man who under standing orders was to be released and was only suspected of being a bomb maker. In his post-polygraph interview, Golsteyn said that “had no qualms” about killing the man “because he couldn’t have lived with himself if (the alleged bombmaker) killed another soldier or marine.” Accordingly, he took the bombmaker off base, shot him and buried his remains.
His later conduct seems to indicate that, if he did not have moral qualms he certainly had legal concerns. He and two other soldiers dug up the remains and burned them in a pit used to dispose of trash. That would seem a conscious effort by all three soldiers to destroy evidence. Moreover, if we allow soldiers to simply kill unarmed people in custody without a charge, how do we know their true motivation? Any soldier can say he feared he was or would be a terrorist. If a soldier can simply ignore standing orders on detainees, when are such orders binding? The point of the rule of law is to preserve not only rules of engagement but good order and discipline in the ranks. Our military has long prided itself on its professionalism and adherence to the rule of law. Once that tradition becomes discretionary, the military becomes a collection of independent contractors or an irregular force. This investigation and trials are conducted by fellow soldiers. They discard neither the realities of the front line nor the obligations of professional soldiers.
Notably, none of the other soldiers would testify against Golsteyn, which might have been used as a rationale for dropping the case. It came be difficult to get in polygraph statements. Now however they have a public interview by Golsteyn himself.
Beyond the criminal procedures, the case highlights the very changed rules that US forces appear to be operating under. Not only was there an assumption that they could kill anyone on one of these kill lists without charge or trial (even if unarmed and in custody) but the suggestion is that the general orders allow for the killing of any unarmed suspect that soldiers deem a potential threat. That would allow for a wide array of extrajudicial killings. Nevertheless, many have rallied behind Golsteyn, including members of Congress.
What do you think?