Travesty of Justice: The Shocking Prosecution of Lt. Clint Lorance

by Don Brown

American troops were hand-strapped from firing, unless they could first determine “hostile intent,” which normally meant identifying a weapon on the attacker. Then, after determining the presence of “hostile intent,” our soldiers had to analyze the enemy for a potential “hostile act.”

The American soldier in 2012 was relegated to the role of battlefield lawyer, forced into a series of mental gymnastics to reach a legal conclusion about whether to fire in self-defense. All this in a war-torn battle zone, in a historically war-torn country, in the ancestral home of the Taliban.

By 2012, the same question had grown pervasive throughout American forces in Afghanistan. Would the American chain of command have your back?

But when the military found no weapons on the dead riders, Army officials decided to prosecute Clint Lorance for murder, arguing that he had violated the rules of engagement. It’s possible that the bike was strapped with explosives. We will never know. The locals took the bike off the street before the Army could secure it. The Army never recovered the motorcycle.

To appease Karzai, who now sought to appease the savage Taliban, with whom the United States was now negotiating, the U.S. military tightened the rules of engagement, making it much more difficult for U.S. forces to fire in a war zone. On the flipside, the tightened rules of engagement made it much easier for the Taliban to kill Americans. The effect: the United States elevated the importance of enemy lives over American lives.

As a direct result of the Kandahar massacre, the Army needed to prove to Karzai and others that civilian casualties would not be tolerated. Any soldiers found to have inflicted civilian casualties would be dealt with severely. Clint Lorance would become the Army’s first chance to make a point. Lorance would become a sacrificial scalp for the Army to hand to Karzai to prove how tough it would be on soldiers whose orders caused civilian deaths.

First, the soldier would have to decide whether the fast-approaching motorcycle displayed a “hostile intent.” Secondly, after making the determination that the fast-moving motorcycle displayed a “hostile intent,” the American soldier then had to make a battlefield determination as to whether the fast-moving inbound motorcycle constituted a “hostile act.” If, and only if, the American soldier made a battlefield determination of first, a “hostile intent,” and then, a “hostile act,” the American soldier would be free to defend himself. If you can’t figure it out in a split-second, and if you’re wrong, and do nothing, prepare to die, be blinded, lose an arm, or have your legs blown off.

In other words, these foolish, politically correct rules of engagement required American troops to sit back and commit suicide.

The morale problem was not indigenous to First Platoon. The morale problem extended across the board to all platoons. It stemmed from the tight, suicidal rules of engagement, from the Army’s new mission of serving as national police force for the Afghans, and from the un-soldier-like role of becoming recruiters for members the Afghan military and police force. The tightened rules, requiring battlefield lawyering at the moment of attack, made it much more difficult for soldiers to defend themselves. The strict rules had gotten so many Americans killed or had their limbs blown off, that Col. Mennes’ suspicions were spot on. Platoons were not anxious to patrol in heavily infested minefields, or get blown up by kamikaze riders on motorcycles. Many platoon commanders did not want to march their men through these death fields, running a high risk of having someone’s legs or knees blown off or their guts spilled all over the ground.

What happened to Hanes was a product of restrictive rules of engagement, and a change in American war strategy that called on American troops to become much more passive and less aggressive against the Taliban.

When Sgt. Herrmann had told him, a few minutes earlier, that he would “take care of it,” Clint was not sure what Herrmann meant. But now, he knew. Sgt. Herman had brought overwhelming firepower against the Taliban snipers. And frankly, after the debacle with Cpl. Hanes, Clint wanted to show the Taliban that any sniper shots, against any American, would be met with overwhelming force. Unfortunately, as will be seen, because of the softening rules of engagement, his command would not agree.

The law of proportional force was a watered-down product of Obama’s weakened rules of engagement, after unilateral announcement of the American pullout. These new rules embraced the notion that the weapons used by American forces to retaliate against the Taliban had to be just as weak as weapons that the Taliban tried to use in attacks against American forces.

Thus, from Leon’s sworn statement, we see that the Afghan National Army was “shooting toward the motorcycle.” As will later be seen, because of the prosecution’s unrestrained zeal to attain a conviction for murder against Clint, the prosecution went to great lengths to suppress this evidence, the testimony of Spec. Leon that the Afghans were firing first.

Even worse, to try to pin a murder conviction on Clint, the prosecution will later paint a false picture that the Afghans had not fired at all. But that not only contradicts Spec. Leon’s sworn statement, but also cuts against the sworn statement from another paratrooper, Pvt. First Class Zachary Thomas, who gave a sworn statement that both the ANA and the Americans were firing at the motorcycle.

Thus, Pvt. Thomas, who is the forward observer, and who was almost as close to the front of the column as Spec. Leon, gave an initial sworn statement that both the ANA (Afghan National Army) and ISAF (International Security Assistance Force—in this case, meaning the Americans), were both firing at the motorcycle. This, again, cuts against the position that the prosecution later falsely proffered at trial, by claiming that the Afghans did not fire, as part of its zealous quest to try to pin a murder conviction on Clint.

Sgt. Ayers could not see, as Clint could not see, and in fact most of the platoon who were in the irrigation ditches between the mud walls could not see anything. Clint relied on information being fed to him, making split-second decisions from the bottom of a grape row, where he could not even see. And the Army charges Clint with murder?

However, in an effort to serve Clint’s head to the Afghans on a silver platter, the Army would later threaten to prosecute Pvt. First Class Shiloh for murder, along with the other soldier in the gun truck, Spec. Reynoso, unless they testified against Clint. Pvt. Shiloh would be ordered to testify against Clint, under a grant of immunity.

Pvt. Skelton also was among the soldiers threatened with prosecution and then ordered to testify against Clint, under a grant of immunity from the commanding general.

Most likely, the motorcycle charge down Old Chilliwack Road, bordering the eastern side of the village, which had now been eliminated, had been a coordinated distraction planned by the Taliban while its main forces congregated on the west side of the village for a surprise attack.

Spec. Rivera’s sworn statement verifies that the troops were concerned for their safety because all this activity on the west side originated from a “known firing spot,” in other words, a place where the Taliban have been known to fire against First Platoon in the past. The direction is significant. The east is the direction from which the motorcycle charge occurred moments earlier—the same motorcycle charge that Lieutenant Lorance had ordered his troops to fire upon. This coordination of forces in the west and then the east of the village underscores the likelihood that the platoon had stepped out into a coordinated ambush that had been planned by the Taliban, coming from both the east and west sectors of the village.

Three insurgents had been riding on the motorcycle that morning. Two had been shot, and the third escaped. Clint later learned—but did not know at the time—that the two men shot had dismounted the motorcycle, and were walking toward the ANA at the time of the shooting. The third rider was later captured.

Wingo and Leon did not find any weapons on the bodies of the two insurgents, which—unbeknownst to Clint—the government would later use as an excuse to prosecute him for murder.

They could not verify either way if the motorcycle was rigged with bombs, because the villagers removed the bike from the street, and the Army never found ...

The prosecution in Clint’s court-martial would later hide valuable evidence from the military jury, and would try instead to paint these three Afghans motorcycle riders as if they were innocent choir boys singing the “Ave Maria” at a Catholic mass on Sunday morning.

In fact, evidence would soon surface that these guys, who the prosecution portrayed as innocent grape farmers, were, in fact, Taliban insurgents, and had their fingerprints on bombs that been used to kill American paratroopers.

Again, however, when the government decided to prosecute Clint for murder, the fact that explosive residue had been found on the hands of these Taliban operatives was hidden from the military jury. The battle on the west side was kept from the jury. The helicopter reports suspecting military-aged males on the west side, about to take action against Clint’s patrol, was kept from the jury. And the SIGACT showing intercepted radio messages that the Taliban planned to ambush Clint’s patrol, was hidden from the jury.

The government would paint a false picture that First Platoon had been on a leisurely Sunday stroll in the park, not on active hot battlefield, and that the motorcycle riders who Clint’s men shot, or who perhaps the ANA shot, were on some sort of morning joy ride. “No reason to be threatened by these leisurely motorcyclists,” the prosecution would have us believe.

But in hiding the true conditions of the hot battle zone from the jury, the prosecution created a false impression of a “Sunday stroll in the park” approach, to argue that Clint and his men were taking potshots against poor innocent farmers on a motorcycle out for a morning joyride with no reason to be concerned about danger. As will be seen, nothing could be farther from the truth.

The Obama administration needed a conviction, and painting a false impression of the battle space as far less dangerous than it was, became one of its deceptive means to get what they wanted: Clint Lorance’s scalp for murder.

Even since Clint had returned to Fort Bragg, in 2013, the Taliban had continued to kill by motorcycle bombs. As recently as June of that year, about 60 days before his trial began, two American soldiers, an Afghan policeman, and 10 children had been killed by a motorcycle suicide bomber. Before that, across the Afghan border in Pakistan, the Talban had killed 84 people in a powerful motorcycle bombing attack in January.

Or did they care more about the Taliban? It sure as hell sounded like somebody, somewhere, up the chain of command cared more about the Taliban, than about American lives. Which is why morale was sagging in the military.

Clint’s desire to leave the courthouse in his service dress uniform would not be granted. The lead military prosecutor, Capt. Kirk Otto, fresh off a conviction for murder, and in a petty move with no apparent motive other than heaping on more humiliation, ordered him out of his service dress blue uniform as a means of humiliating him as he was brought out before the cameras.

The decision to parade Clint in front of television cameras in a gray T-shirt and black shorts was emblematic of the pettiness and vindictiveness of the Army prosecutors, who, as will be shown, were so zealous to frame Clint and gain a conviction that they hid exonerating evidence from the jury.

Clint did not pick up a gun, did not pull the trigger, did not pick up a knife, did not physically rape anyone, and did not physically upload classified materials to WikiLeaks. He had never seen the alleged victims for whom he was convicted of murder, did not know their names beforehand, and acted on information, to the best of his ability, in a split-second, believing that his men were in danger in a red-hot war zone. And for that, his name would be added to the roles of the notorious. All because of a split-second decision to try and save his men. American lives matter.

Based upon on the record, the prosecution’s conduct had been questionable on several points. For one thing, prosecutors deliberately avoided showing any evidence to the jury that a firefight had occurred on the west side of the village, moments after the shooting of the three Afghans in the motorcycle.

platoon was operating in a hot situation. Obviously, the prosecution wanted to portray First Platoon’s mission as a “Sunday stroll in the park,” where there was no reason to be concerned about three Afghans charging the platoon’s position on a motorcycle.

And even though two paratroopers from First Platoon—including Spec. Reyler Leon, who was physically closest to the shooting, had given sworn statements that the Afghan National Army had fired first at the three motorcycle riders—the prosecutor worked hard to deliberately keep this information away from the jury.

When the defense counsel tried to enter this information at trial, that the Afghan National Army had fired first, the prosecutor objected based upon hearsay, and the judge sustained that objection. The defense counsel, Mr. Womack, could have cited several exceptions to the hearsay rule to get the evidence before the jury, but for whatever reason, elected not to try.

First off, bullets from the Afghan National Army might have killed the two Afghan motorcycle riders, and not bullets from Clint’s platoon. No autopsies were done, so we don’t know what bullets killed the riders. But the prosecutor decided to hide this information from the jury, in his unbridled zeal to convict Clint Lorance.

it shows that the Afghan National Army also viewed the motorcycle to be a mortal threat, so much so that they, too, opened fire. The Afghans also knew that Old Chilliwack Road, the motorcycle’s route of approach, was a Taliban-controlled road.

had the firefight on the west side of the village been revealed to the jury, would have given the jury at least some idea of how hot and dangerous the situation was fa...

The prosecution’s concerted attempt to hide the sworn statements of witnesses that the Afghans fired first, and its attempt to hide from the jury the firefight on the west side of the small village, minutes after the firing on the motorcycle, marked at least two deliberate “hide-the-ball” tactics employed by the prosecution that John had discovered so far, all to ensure that Clint’s head got delivered on a silver platter.

Here, John Maher is referring to the fact that the military prosecutor had physically crossed out the names of the Afghan “victims,” who were on the motorcycle, from the charge sheet. The charge sheet is the equivalent of the military’s version of a criminal indictment, officially telling an accused what crime he is being charged with. In this case, they charged Clint with murder of the unnamed Afghans. However, Maher found the names of the “victims” in other parts of the record of trial, which were not crossed out, but which the jury never saw.

The Army had also refused to let CID continue to interview witnesses, per Capt. Patten, the command legal advisor. The CID agent activity reports note that Capt. Patten would not authorize, nor would the command authorize, the CID to finish its interviews. That meant that witnesses who would exonerate Clint would not be interviewed.

Little did he realize at the time that his top-secret assignment in early 2013 would eventually lead to the smoking-gun evidence of the prosecution’s inexcusable cover-up in hiding exonerating evidence in its case against Clint Lorance. That revelation would come later.

But, then again, Capt. Otto had lined out the Afghan names on the charge sheet. He did that for a reason not explained in the record. Had he run the biometrics and determined they were terrorists, and decided to conceal their identities?

As far as John was concerned, this report was a smoking-gun hot potato, both politically and legally, that cast inexcusable shame and wrongdoing at the feet of the prosecution. Either the prosecution had deliberately withheld exonerating evidence, or had been criminally negligent in failing to turn over exonerating evidence that should have been made available to the defense—and the military jury—from the beginning. Carney must have discovered this, too, as soon as he ran the search.

Of the men riding on the motorcycle, two of the three left their prints and DNA on IEDs at GRID coordinates where American soldiers were killed or wounded. In other words, at least two of the three motorcycle riders that Clint’s men opened fire on were enemy combatants.

This fact, that at least two of the motorcycle riders were enemy combatants, was withheld from the defense and the jury. And the third rider left his prints and DNA on IEDs.

The prosecution led the military jury to believe that the men were merely civilian casualties, with no interest in the war effort, completely innocent and sho...