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

by Don Brown

The prosecution carefully hid from the jury all evidence of shootings on the west side of the village, obviously to fool the jury into thinking this was not a war zone, when, at all times, an Army report concluded that Lorance’s platoon was being scouted for an impending attack or ambush, and that at least one insurgent was confirmed killed in

Every bit of this evidence had been hidden from the defense counsel, and even more seriously, had been hidden from the military jury. The Army’s railroad job against Lt. Clint Lorance had been borderline criminal. No prosecutor should ever, under any circumstances, hide and or conceal exonerating evidence from a jury in order to gain at conviction for the sake of political expediency. But John Maher knew at this point that this is exactly what had happened in the prosecution of Clint Lorance. The prosecution did not seek justice in Clint’s case, but only a symbolic head on a silver platter, the full facts and the truth be damned.

All this biometric evidence, linking these motorcycle-riding Afghans to bombs designed to kill Americans, was deliberately hidden from the defense, and from the military jury. The jury had no clue that the motorcycle-rider Ghamai’s bomb had killed

Staff Sgt. Nuanes. The jury had no clue that the motorcycle-rider Karimullah had planted multiple bombs, targeting Americans. The jury had no clue that Mohamad Rahim, who was captured on the west side of the village and was good friends with the motorcycle-rider Haji Karimullah, had explosive bomb residue on his hands.

The prosecution’s deliberate decision to hide biometric evidence of bombmaking by the motorcycle riders from the defense, and to hide that evidence from the military jury, all was part of an out-of-control and zealous determination to convict an American officer in order to satisfy a political debt to the Afghans, and is borderline criminal.

“Criminal” needs no modifier here.

But the government coverup of evidence that would have exonerated Clint only gets worse.

And not one word of this was ever disclosed the military jury. Not one word. Why? Because the prosecution knew that it would be a cold day in hell before the military jury would ever convict Clint Lorance if they knew that Clint’s men shot at bombmakers, and were in a firefight with bombmakers all over the village that morning. That’s why.

But to John Maher’s surprise and disappointment, the Army’s high brass dug in their heels and defended the flawed result of the trial rather than make it right. They didn’t want to face facts that exonerated Clint, as the facts would interfere with an agenda.

It is important to note that the Army Court of Criminal Appeals did not ever deny the authenticity of the biometrics evidence. Nor did the attorneys representing the prosecution on appeal. Rather, they responded that Clint would have had no way of knowing that these men were enemy combatants ahead of time and therefore, the evidence was “irrelevant.” The Army Court agreed with the government.

Given that demented response from the Army Court of Criminal Appeals, no soldier who ever shot at a Taliban insurgent in Afghanistan would ever know ahead of time, because they all dress in the same garb as local farmers. They wear that garb when they plant bombs and kill Americans. They all look the same, and they all dress the same, which is by design.

Recall also that Clint’s platoon was targeted for an impending ambush, and that at least one enemy insurgent was reported as “killed in action,” in a report that was neither disclosed to the defense nor the military jury.

Had the biometric information that the riders left their fingerprints or DNA on bombs been disclosed to him, Clint could have made the following strong defense: the paratrooper who fired at the riders complied with the rules of engagement and the shots from the gun truck were fired based on that ROE-compliant threat assessment. In other words, they were shooting at the enemy.

Had Clint not ordered the fire—and the motorcycle detonated as one did in Faryab Province, killing members of the Buckeye Brigade—Clint would have been court-martialed for willful dereliction of duty. Leavenworth casts a long shadow.

Throughout the entire handling of Clint’s matter, the prosecutor’s conduct, and the conduct of certain members of the Army judiciary, have been so outrageous, and appalling, in demonstrating a coordinated effort to railroad Clint Lorance above all considerations of justice, that their actions have brought a stain upon the military justice system.

In Clint’s case, perhaps the biggest, criminal, hide-the-ball of all involves the prosecution’s refusal to reveal a Significant Activities Report, or SIGACT report, showing the true danger and the true threat assessment of the village of Payenzai at the time Clint’s platoon stepped off on their patrol on the morning of July 2, 2012.

Beginning at around 5:30 a.m., intelligence officers at Gariban started intercepting radio messages from the Taliban in and around the village of Sarenzai. The radio traffic indicated that Clint’s platoon at Payenzai was about to be ambushed. In other words, the Taliban had targeted Clint’s patrol for an ambush from the moment they stepped off on their mission that morning. The radio traffic from Taliban sources about the ambush to Clint’s platoon, started at 6:19 a.m.

The Army knew that an ambush was planned against Clint’s platoon that morning, but prosecuted Clint anyway for murder. This despite the fact that unidentified Afghans charged their position on a motorcycle coming from a road, Old Chilliwack Road, a road controlled by the Taliban. The decision to bring charges under the circumstances makes no sense, unless explained within the context of the political prosecution for paying homage to the Afghans for the Kandahar massacre.

That combined patrol is Clint’s patrol, combined with the Americans of First Platoon, and a handful of ANA soldiers out front. Of course, 40-some minutes later, the motorcycle with Taliban bombmakers charged Clint’s platoon, and Clint ordered his men to open fire.

But the prosecution’s decision to hide the SIGACT report from the defense and the jury is yet another travesty in Clint’s case. As with the biometrics evidence, the SIGACT report was never turned over to the defense. So, the prosecution tries to make the fabricated claim that the motorcycle riders were civilian casualties, while at the same time, sat on a report showing that the Taliban was planning to ambush Clint’s patrol at the very time and that Clint’s men opened fire on the motorcycle charging his platoon from a Taliban-controlled road.

The military prosecutors against Clint, in an unrestrained zeal to obtain a conviction, deliberately hid this piece of evidence from the defense, depriving the defense of its right to submit this evidence to the military jury.

But in a hideous act of prosecutorial misconduct, both biometrics evidence proving that the motorcycle riders were bombmakers, and this Significant Activity Report, which showed that Clint’s patrol was about to be ambushed, were hidden from the defense, and thus, unavailable to the military jury in deciding Clint’s fate.

The Army Court of Criminal Appeals did not challenge the authenticity of the biometrics evidence, but instead, totally disregarded the biometrics evidence by claiming that Clint could not have known in advance that the motorcycle riders were enemy insurgents. Of course, to spew out such warped reasoning, the Army Court, led by Brig. Gen. Joseph B. Berger, III, had to ignore the fact that a) Clint was charged with shooting civilians, but these riders were wartime combatants and thus not civilians; b) the motorcycle came down a road (Old Chilliwack Road) controlled and used only by the Taliban; c) the platoon had been ambushed by sniper fire from that road less than 24 hours earlier; d) U.S. helicopters saw military-aged males gathering in the northwest corner of the village; e) Sgt. Herrmann’s men spotted Afghans with ICOM radios on the west side of the village; f) Clint had only a few seconds to react and gave the order from the bottom of an irrigation ditch between grape berms, unable to see anything other than an 8-foot-high wall of baked mud and grape leaves; g) suicide-by-motorcycle had become the murder tactic de jour by the Taliban for killing Americans and American-friendly Afghans; and h) the blimp operator at Combat Outpost Sia Choy observed three Taliban members, up armed with weapons and ICOM radios, shadowing Clint’s platoon on July 2 during the entire operation.

But every member of the Taliban in Afghanistan looks like a civilian. They all wear farmers garb, civilian and Taliban alike. That’s part of the Taliban’s game plan—to blend in with civilian farmers. The Taliban doesn’t wear military uniform. Following the Army Court’s demented logic, every American soldier who killed a Taliban terrorist in the war on terror should be prosecuted. Thousands of the Taliban have been killed. None wore uniforms.

Clint had to react on the best evidence he had within a split second. And thank God, he did act. The Army court was not able to reconcile its position with the plain fact that Clint was charged with shooting civilians, even though these guys simply were not civilians but were enemy combatants.

As will be seen, Brig. Gen. Berger, the Army’s chief judge, made public remarks that day that appeared to be designed to poison Clint’s appeal.

It appears, as will be seen, that Berger wanted to taint all the steps of the ladder above his court, to ensure that his court would never be reversed, and that true biometrics and other facts that exonerate Clint would never see the light of day.

In what can be interpreted as nothing other than an effort to intentionally sabotage Clint’s case, which at that time was before the Secretary of the Army, who had the power to dismiss it, Berger called Clint a “bad apple” in front of hundreds of people, with the media present, and said Clint had gone “off the rails,” likening him to Lt. William Calley, who was accused of the mass murder of 109 South Vietnamese civilians and convicted of mass murder of 22 South Vietnamese civilians.

Berger calls Clint a “bad apple,” calls him a “very aggressive lieutenant,” says he “goes off the rails,” and makes false claims about Clint violating the rules of engagement. In fact, Clint was not convicted of any rules of engagement violations and was acquitted of all ROE related charges. Berger doesn’t reveal the full truth about that, though.

Consider what the Federal Judicial Canons say about judges making public comments about cases. Rule 3(A)(6) of the Federal Judicial Canons is clear, stating, unequivocally that, “(6) A judge should not make public comment on the merits of a matter pending or impending in any court.”

Before closing, we should consider what appears to be pressure against witnesses, by the Army, to change statements that would have helped Clint.

Latino was recovering from his injuries sustained in combat. In a typed sworn statement, Latino related that during his tenure as platoon leader, he would never let a motorcycle near First Platoon because of the deadly risk they posed. Specifically, Dominic V. Latino wrote, “We would not let a motorcycle into close proximity of our element due to current tactics, techniques, and procedures of enemy forces.” A review of Lt. Latino’s sworn statement, however, shows that the portion about not letting motorcycles near his platoon was later struck or lined out.

This sworn statement, that the Afghans fired first, is highly relevant on two points. First, it shows what a hot battle zone that First Platoon was operating in, and that the Afghans also considered the motorcycle to be a threat. It also raises questions as to whose bullets actually killed the Taliban operatives who were bomb-makers, and riding the motorcycle.

Even though Leon did not back off his statement that the Afghans fired first, the prosecutors deliberately did not ask him about it at Clint’s trial, and then carefully kept it out of evidence, out of earshot of the jury. The defense attorney, Mr. Womack, tried to get it into evidence at trial, but when the prosecutor objected, the military judge sustained the objection.

But despite the sworn statements of Leon and Thomas, the prosecutor looked at the military jury and claimed the Afghans did not fire. Here is what the prosecutor, Capt. Otto said, specifically, to the military jury, during his opening statement at the beginning of Clint’s trial: “The ANA are forward with a different vantage point coming up to the road. The ANA can see. The ANA do not engage.” Otto made this claim, that “the ANA do not engage,” despite knowing about the sworn statements of both Leon and Thomas, that the ANA fired, and according to Leon, the ANA fired first. Otto hid the ball. The jury would never know because the prosecution did not want them to know the full facts.

After Thomas made the initial sworn statement that a mix of both Afghan National Army and Americans fired first, he was interviewed three more times by high-ranking investigators within the same month after the shooting. By the end of July 2012, after investigators talked to Thomas the fourth time, Thomas walked back his statement about the Afghanis shooting first. By July 31, 2012, he had gone from saying under oath that it was a “mix of Afghan National Army and ISAF” forces firing first, to saying that he could no longer be sure who fired.

Even if the mysterious changes in the statements of Lt. Latino and Pvt. Thomas were simply coincidental and not orchestrated, and there is not a snowball’s chance in hell that the changes in either case were coincidental, the fact remains that the prosecution hid from the military jury evidence that the two soldiers closest to the action both gave sworn statements to investigators that the Afghans fired first. The prosecutor’s actions in hiding this fact deprive Clint of his rights to a fair trial under the due process clause of the Fifth Amendment, and his right to confront witnesses under the confrontation clause of the Sixth Amendment.

Prosecutors hid other things, too. They hid evidence of the shootings, by Staff Sgt. Hermann’s squad, on the west side of the village. They hid the full extent of radio reports that an attack was brewing on the west side of the village. They hid from the military jury the SIGACT report, showing intercepted messages some 40 minutes before Clint’s patrol commenced their mission that morning, that Clint’s patrol was likely to be ambushed. They hid biometrics evidence, proving that the motorcycle riders were Taliban bombmakers. And they claim all this is not relevant?

Here is what Mr. Huber wrote to reporter John Ramsey on Sept. 27, 2013, six weeks after the completion of the court-martial. From: Kevin Huber <krhuber13@yahoo.com> To: «ramseyj@fayobserver.com” <ramseyj@fayobserver.com> Sent: Friday, September 27, 2013 10:56:12 AM EDT Subject: RE: Lt. Lorance …. I was asked to look for his element because he was being followed by guys with a radio (ICOM) and binos. I guess it depends on what the actual ROE was on that day... and it changed fairly frequently. But in trying to find out about all this, I also reached out to his lawyer. If “spotting” or “scouting” with ICOM was deemed hostile intent under the ROE on that day, then he was justified... everything else that preceded that and whether or not he lied about anything before or after is irrelevant to me.

So, in addition to the Bales incident in March of 2012 (the Kandahar massacre), we now have another incident that got Hamid Karzai’s personal attention, which leads to even more pressure on the Army and the Obama administration to deliver a head on a platter to prove that the United States would get tough on civilian casualties.

What member of the jury would not want to know that Clint’s patrol had been shadowed by armed Taliban right up to the moment of the shooting? The prosecution’s failure to disclose this evidence to the defense, in addition to its failure to reveal crucial biometrics evidence to the defense, and its failure to disclose multiple Significant Activity Reports, further underscores the inexcusable conduct of the prosecution in its zeal to secure a conviction at all cost. Clint’s conviction should be overturned immediately, and he should be restored to active duty with full pay and benefits, with promotions commensurate with his time in grade.

“So, we got a kid up there, and he was a platoon leader at the time, and I think he is used as a scapegoat. And those guys turned against him because they ultimately thought that they were going to be court-martialed with him.” Lt. Col. Gurfein: “Well, they were told they were. They were accused of murder, and then, they were given immunity. We have letters where they were told that they will testify against him.”

“I told him straight up. I told him I don’t think that these guys deserve to get punished for anything. I told him, ‘I think it goes higher than Lt. Lorance.’ I told him, ‘If Lt. Lorance is getting court-martialed, why isn’t the company commander getting court-martialed? How come nothing is happening to the platoon sergeant? How come nothing happened to anybody else, but we are all just hammering on this guy?’ “Those guys down there … they were in a gunfight every day. They had a hostile environment. Lt. Lorance went down there, and then they try to say he was out of control. But, no, that’s not the way it was. There is more to it.”

The prosecution was not interested in the truth, but needed a single scapegoat to sacrifice to the Afghans. So, they went after the young lieutenant and let everyone else go. No one should have been prosecuted. Not the company commander, not the platoon sergeant, and not the 10 paratroopers they threatened to prosecute.

Above and beyond all that, even aside from the discovery of exonerating biometrics evidence and the efforts to hide evidence from the jury, and above and beyond the Army’s threats to prosecute Clint’s own men for murder if they didn’t throw him under the bus, it is a damn shame that an American paratrooper patrol in the midst of the most dangerous, Taliban-infested section of the world, the Zhari District, Kandahar Province, Afghanistan, would be subjected to interrogation like a bunch of criminal thugs on the southside of Chicago.

All that evidence—biometrics showing the motorcycle riders to be bombmakers, witness statements showing the Taliban fired first, clear warnings from intercepted radio messages that Clint’s platoon was about to be ambushed— all that was deliberately hidden from the military jury, by the prosecution, in a hell-bent effort to deliver Clint’s head on a silver platter at all costs

However, the treatment of Clint Lorance, an American hero, is an even larger disgrace, for reasons exactly opposite of the Bergdahl case. With Bergdahl, we had an American traitor, whose family came to the Rose Garden with the father praising Allah to the smiling, nodding delight of the 44th president, with the military justice system then letting the traitor Bergdahl, whose desertion cost the lives of six American soldiers, walk away with no time served.

With Clint, we have an American patriot who stuck his neck out for his men and who brought them all home alive, but who was railroaded by his government to pay homage to the Afghans for the Kandahar massacre and send a message to American troops under Obama, “Don’t shoot until you are blown up first.” The treatment of our soldiers in Afghanistan in 2012 was a national travesty.

In a symbol of supreme irony, on Sept. 15, 2012, only two months and 14 days after that hot, fateful morning of July 2, the day they relieved Clint of command of First Platoon and pulled First Platoon off the field permanently, the Secretary of the Army, through Clint’s Brigade Commander, awarded Clint the Army Commendation Medal. Think about that. Clint’s colonel thought so highly of his service as an officer that during the period of time in which the Army high command would decide to railroad him for murder, Col. Bryan Mennes awarded him the prestigious Army Commendation Medal, approved by the Secretary of the Army. The medal was awarded for meritorious service from March 1, 2012, through Sept. 15, 2012, with July 2, 2012 (the date of the alleged murder) being smack dab in the middle of that meritorious timeframe.

After Clint had been prosecuted for murder, the word had spread, loud and clear among U.S. forces in Afghanistan. “Protect yourself against suicide motorcyclists at your own risk. If you are wrong, they will prosecute you for murder.” Against this backdrop, the airmen could do nothing but watch as the Taliban motorcyclist revved his engine charged their position in front of the air base. The airmen could not fire—in self-defense—because they would be prosecuted for murder if they did. The fact that other American servicemen had been attacked and killed in this very manner, suicide-by-exploding-motorcycle, did not matter to the American chain of command, at least not under the Obama administration.

Six airmen lost their lives as a direct result of the message sent by the railroading of 1st Lt. Lorance. May everyone involved in this travesty find a special place in hell.

Because the Army high command had used him as a scapegoat, and prosecuted him for murder to make a political point, no American soldier in Afghanistan could ever protect themselves from this type of suicide attack, unless they were willing to face prosecution and serve 20 years or more in prison. What an impossible predicament!