In clearing soldiers in 2004 Iraq shooting, U.S. report leaves contradictions unaddressed

New York, May 24, 2007—A U.S. military report that exonerated U.S. troops in the killings of two Al-Arabiya journalists at a Baghdad checkpoint in 2004 failed to address contradictory witness reports, including statements from Al-Arabiya employees that at least two U.S. soldiers fired directly on the journalists’ vehicle, newly declassified records show.

The report, disclosed in response to a Freedom of Information Act request from the Committee to Protect Journalists, describes a chaotic scene in which the soldiers targeted a white Volvo that had failed to slow down as it neared the checkpoint. The 117-page report concluded that Al-Arabiya journalists Ali Abdul Aziz and Ali al-Khateeb were killed accidentally in the crossfire and that troops had properly followed the military’s rules of engagement.

But the report does not reconcile statements from Al-Arabiya employees that U.S. soldiers fired directly on the journalists’ vehicle, a Kia Sportage, while other soldiers were firing at the Volvo. Neither does the report address a statement—taken from the Al-Arabiya Baghdad bureau chief and relayed by a U.S. Army colonel to her superiors—that a U.S. tank may have briefly collided with the press vehicle moments before soldiers opened fire. The report also fails to reconcile statements from Al-Arabiya employees that the checkpoint was poorly illuminated, assertions that contradict the military’s conclusions.

The witness statements are indexed as exhibits in the overall report, the conclusions of which are outlined in a one-page executive summary. U.S. Navy Lt. Kyung L. Choi, a spokesman for the U.S. Central Command, which oversaw the investigation, declined to answer written questions from CPJ seeking comment on the discrepancies.

“We welcome the release of this investigative report, which sheds light on a tragic incident,” CPJ Executive Director Joel Simon said today. “However, the report’s failure to fully reconcile the varying witness accounts is troubling and leaves open the possibility that potentially damaging information was ignored or not fully considered.

“Disclosing this report is an important step in an open and frank discussion that can lead to improved safety for journalists covering the conflict in Iraq, the deadliest for the press in a generation,” said Simon. “But more is needed. Most of the cases in which journalists have been killed by U.S. forces’ fire have either not been fully investigated or the findings were not made public. We call on the military to engage in a full discussion of this shooting and make public as much information as possible on the other cases.”

Fourteen journalists and two media support workers have been killed by U.S. forces’ fire in Iraq since the beginning of the war, according to CPJ research. CPJ has not found evidence to conclude that U.S. troops targeted journalists in these cases, although it continues to investigate. A total of 104 journalists and 39 media support workers have died in Iraq, most at the hands of insurgents or members of other armed groups who have targeted them.

Three years in coming
A chronology included in the report indicates that the investigation was completed within one week of the March 18, 2004, shooting. The conclusions of the investigation were made public on March 29, 2004, but the written report and the related investigative documents were not disclosed. While three previous U.S. military investigative reports on press-related cases were released within about a year of completion, this report and its exhibits were not released until this month, more than three years after CPJ submitted a formal request to the U.S. Central Command. The documents are now posted on CPJ’s Web site.

The U.S. Army investigation exonerated the U.S. soldiers involved, saying the shooting “was justified within the current ROE [rules of engagement] and that the injury to the Al Arabiya employees was coincident to the justified engagement and unintentional,” according to the report’s executive summary. The report’s exhibits include testimony from U.S. soldiers and Al-Arabiya employees, an e-mail message from a U.S. Army colonel, original Arabic and English translations of Iraqi police reports, autopsy reports, diagrams, and aerial photos. Most names attached to the witness statements were redacted before their release to CPJ.

The newly revealed testimony, combined with CPJ interviews of surviving Al-Arabiya employees at the time of the 2004 shooting, further establishes details of the incident. Al-Arabiya journalists in two vehicles—a gray Kia Sportage and a van with a satellite dish— drove toward the Burj Al-Hayat Hotel in Baghdad after the hotel had come under rocket attack. U.S. soldiers had cordoned off the area, and the Al-Arabiya press vehicles stopped of their own accord on a road in front of the German embassy, within sight of the U.S. military checkpoint. It was about 9:30 p.m. A cameraman and reporter from Al-Arabiya, each wearing press credentials, walked toward the site of the rocket attack. The reporter, who was bilingual, spoke with U.S. soldiers for about 10 minutes, the Kia driver, who survived the shooting, told Iraqi police.

An e-mail sent a day after the attack by U.S. Col. Jill E. Morgenthaler, a public affairs officer with the Combined Joint Task Force 7, described a similar scene. “The [cameraman] Ali Abdel Aziz and the journalist Ali Al-Khatib got out of the car and spoke to the soldiers showing their press credentials around their necks,” Morgenthaler stated in her e-mail to superiors, basing her description on a telephone conversation with Al-Arabiya’s Baghdad bureau chief.

The Kia driver told Iraqi police that he left the car’s lights on so the parked vehicle would be visible to U.S. soldiers. When the reporter returned, the driver said, he told the crew to pack up and begin moving to the site of another attack. Just as the Kia and satellite van began to pull away from the side of the road in front of the German embassy, a white Volvo passed them, heading toward the military checkpoint.

The Volvo was driven by an elderly man, surviving Al-Arabiya employees told CPJ at the time. U.S. military investigators later identified him as an Iraqi citizen. By all accounts, he failed to slow down as he approached the checkpoint. The Volvo was moving at a “normal speed for traveling on an open road,” one Al-Arabiya employee told a U.S. military investigator. “We saw a car coming at maybe 40 mph at us. It didn’t look like he was going to stop,” one U.S. soldier stationed at the checkpoint testified. After soldiers opened fire and shot the Volvo’s driver, witnesses said, the vehicle crashed into the checkpoint, hitting a metal barrier and a parked armored vehicle. Several soldiers testified that they sought cover, fearing the vehicle’s driver might be a suicide bomber. The company commander wrote in his own hand, “I order[ed] my team to take cover behind me in the rocks and bushes in case of an explosion.” No explosion ensued. Soldiers later told investigators they found no explosives in the car and determined there to be no threat. The report does not speculate as to why the Volvo’s driver did not slow down.

The driver of the Kia, meanwhile, seeing the Volvo heading unabated toward the checkpoint, said he tried to make a U-turn and drive in the opposite direction. In doing so, however, the Kia by all accounts moved directly behind the Volvo and into the line of U.S. forces’ fire. Al-Arabiya’s satellite van, a larger vehicle, made a three-point turn to follow the Kia and stayed out of the line of fire.

U.S. soldiers in their sworn statements to military investigators described the scene. “[A] white Volvo sedan approached the blocking position at speed and failed to slow down or heed warnings,” reads the executive summary of the U.S. Army report. “Believing that they were under attack, the soldiers engaged the vehicle with 80 rounds of 5.56mm [millimeter] and 7.62mm ammunition. During the course of the engagement, errant rounds unintentionally struck and killed two employees, Ali Abdul Aziz and Ali Al Khateeb, of the Al Arabiya Satellite Television Network. The vehicle that the Al Arabiya employees were traveling in inadvertently entered the beaten area while attempting to execute a U-turn.” Diagrams with notes in Arabic and English appear to support the account.

Questions about a tank and lighting
But there are several unresolved discrepancies in the U.S. military report. The e-mail sent by Col. Morgenthaler, the public affairs officer, based on her transcription of a phone conversation with the network’s bureau chief, reads: “The photographer and journalist jumped into the Kia to get away from the line of fire. As they drove off, a tank chased them soldiers shot at them thinking they were with the Volvo driver.” A line runs through the phrase, “a tank chased them,” in the printout that was released to CPJ, but the military spokesman declined in an interview to explain its meaning. The e-mail’s recipient was redacted from the printout, but it was copied to Brig. Gen. Mark Kimmitt, the deputy director for operations for coalition forces in Iraq

An initial statement given by the Kia driver to Iraqi police also describes some kind of interaction involving a U.S. tank. “When we left our car was collided with one of the American tanks by a minor hit, as a result of that the Americans started to shoot us,” the driver told Iraqi police the night of the incident. Yet a more comprehensive statement taken from the driver by Iraqi police two days later makes no mention of a collision or any other interaction with a U.S. tank. The records leave unclear why that detail was omitted.

The driver of Al-Arabiya’s satellite van was another eyewitness. In his interview with U.S. investigating officers, he made no mention of any collision involving a U.S. tank or armored vehicle and the Kia. But his statement, as paraphrased by the U.S. investigating officer in his “Notes of Interview with Al Arabiya Witnesses,” suggests that at least two U.S. soldiers directly targeted the Kia with fire while other soldiers were shooting at the Volvo.

“When the firing began, [the driver] backed the satellite van into another car parked near the German embassy. Seeing the soldiers at the blocking position firing at the white Volvo, he then attempted to execute a U-turn and move toward the major intersection to the west. As he turned the van, he observed that two soldiers on the north side of the blocking position had begun to engage the gray Kia. [The driver] stated that one soldier fired a few shots at the Kia then stopped, while another continued to fire at a sustained rate until the Kia had turned out of site to the north at the intersection. [The driver] negotiated the U-turn and proceeded north at the major intersection following the gray Kia, his vehicle was not hit by gunfire.”

Testimony from 17 U.S. soldiers involved in the incident, however, differs from that account. Sixteen of the U.S. Army soldiers manning the checkpoint were from C Company of the First Battalion of the 6th Infantry Regiment, and one was from Headquarters/Headquarters Company of the First Battalion of the 6th Infantry Regiment. With the exception of a soldier who was serving as an advance scout, they do not make any reference to the presence of the Kia or the satellite van. Most said they were aware only of the approaching Volvo. “I shot at the white Volvo after it had run the [roadblock warning area] and slammed into the [armored vehicle],” one U.S. soldier said. “There were no other vehicles that I was aware of at the time of the shooting.”

This led U.S. investigating officers to conclude in the findings of the U.S. military report: “The soldiers were unaware of the presence of the Al Arabiya vehicle and likewise unaware that anyone other than the driver of the Volvo had been injured. No evidence indicates that the Al Arabiya vehicle was purposely targeted.”

Nowhere in the report do U.S. investigating officers reconcile the factual discrepancies between the statements made by Al-Arabiya employees and U.S. soldiers. The conclusions in the executive summary appear to be based on the accounts given by U.S. soldiers. The executive summary makes no mention of the contradictory testimony.

Also unresolved in the report was the level of lighting at the checkpoint. Al-Arabiya witnesses and the U.S. soldiers manning the checkpoint disagreed over whether the military vehicles had their lights illuminated that evening.

“All of the witnesses stated that the blocking position was marked with three orange cones placed a short distance in front of the military vehicles,” reads the U.S. military investigator’s summary of interviews with Al-Arabiya employees. “All witnesses stated that a khaki colored sign was placed in center of the road forward of the blocking position. When asked by the Investigating Officer, none of the witnesses could determine whether or not something was written on the sign. All witnesses stated that the sign was approximately 1 meter by 1 meter in size. All witnesses stated that the headlights on the military vehicles were not illuminated and that the streetlights had gone out.”

But in its executive summary, the report simply states that the military vehicles’ lights were on. “The site was marked with an English and Arabic warning sign, orange cones and chem-lites at 75-80m[eters] forward of the blocking position. The ’Kill Line’ was marked with a series of orange cones 20-25m[eters] forward of the blocking position. [Armored] gun vans were positioned in the center of the roadway in both the eastbound and westbound lanes with high beams illuminated,” the executive summary states.

The report does not indicate whether investigating officers sought to reconcile the discrepancy.

Report: Soldiers acted properly
The report does confirm one point that was briefly contested by U.S. military commanders after the shooting. Two days after the incident, Brig. Gen. Kimmitt appeared to cast doubt on the assertion that U.S. forces were responsible for the journalists’ deaths, saying the number bullets fired by U.S. troops did not match the number that hit the Al-Arabiya vehicle. According to The Washington Post, Kimmitt said that U.S. troops accounted for all but two bullets fired at the car that crashed into the metal barrier. He said an autopsy revealed that the Al-Arabiya journalists were hit by at least five bullets. The Committee to Protect Journalists sent a letter to then-Secretary of Defense Donald H. Rumsfeld five days later, on March 25, 2004, calling for an investigation.

The U.S. Army’s investigative report confirms that the Al-Arabiya journalists were both shot by U.S. soldiers manning the checkpoint. “Approximately 80 rounds were fired during the incident –59, 5.56mm [millimeter] and 16, 7.62mm,” reads a memorandum sent one week after the March 18 shooting, on March 25, to the commander of the 2nd Brigade Combat Team of the 1st Armored Division, whose 6th Infantry Regiment forces were involved in the incident. “Out of approximately 80 rounds fired during the incident, no more than 4-6 rounds hit the [press] vehicle … One of the passengers had two full entry and exit wounds and seven fragmentary sounds. The other passenger had one full entry and exit wound and 4-5 fragmentary wounds.”

Four days later, on March 29, the U.S. military announced in Baghdad that it had completed its investigation and that it accepted responsibility for the deaths of the two journalists. The Combined Joint Task Force 7, which oversees the forces involved, expressed on its Web site “regret” for what it described as an “accidental shooting.” Press reports quoted U.S. military officials at the time as saying that the soldiers who opened fire acted within the “rules of engagement.” The rules themselves are classified.

The Al-Arabiya report is the most comprehensive involving the shooting of a journalist to be disclosed in the last three years. In 2004, the military released a report on the 2003 fatal shooting of Reuters cameraman Mazen Dana near Abu Ghraib prison. In that report, U.S. military investigators called on the U.S. military to review its own rules of engagement (ROE) and “make a formal assessment if modifications are necessary to the ROE.” It also urged that the military exert greater battlefield awareness of journalists.

The newly released report highlights the sometimes-chaotic circumstances at military checkpoints. The Committee to Protect Journalists and Human Rights Watch together sent a letter to Rumsfeld on July 17, 2005, “to express our ongoing concern about the U.S. military’s failure to develop and implement adequate procedures at military checkpoints in Iraq.” CPJ and Human Rights Watch, both independently funded, nongovernmental organizations, wrote the joint letter four months after Italian intelligence officer Nicola Calipari was killed and Italian journalist Giuliana Sgrena was seriously wounded near a U.S. checkpoint.