Command's Responsibility: Detainee Deaths in U.S. Custody in Iraq and Afghanistan

Mohammed Sayari

Mohammed Sayari was in the custody of members of the U.S. Army Special Forces when he was killed near an Army firebase on August 28, 2002 in Lwara, Afghanistan. According to Army investigative records reviewed by Human Rights First, an Army staff sergeant from the 519th Military Intelligence Battalion who was supporting the Special Forces team was dispatched to the site of the shooting of a “suspected aggressor” on a road just outside the firebase, to take photographs documenting the scene. When he arrived, the members of the Special Forces unit told the sergeant they had stopped Sayari’s truck because he had been following them. The soldiers ordered the passengers traveling in Sayari’s truck to leave the area and then, they said, they disarmed Sayari. According to their later testimony, the soldiers neglected to restrain Sayari’s hands, and left his AK-47 weapon ten feet from him. When a soldier turned away for a moment, they said, Sayari lunged for the rifle and managed to point it at the Special Forces soldiers before they shot him in self-defense.

Sayari’s body was fingerprinted and turned over to his family. The Military Intelligence sergeant (whose name is redacted in the records Human Rights First reviewed) then instructed other military personnel to transfer DNA evidence taken at the scene and other photographs to the Bagram Collection Point. On September 24, 2002 the captain of the Special Forces group that shot Sayari told the sergeant that a member of the Staff Judge Advocate General’s Corps would be coming as part of the administrative investigation to take statements from Special Forces soldiers involved in the shooting. The captain then asked the sergeant for the photographs he had taken. After reviewing the photographs, the Special Forces captain told the sergeant to include only certain of the photographs in the investigation and ordered him to delete all the other crime-scene photographs. The administrative investigation would eventually find Sayari’s shooting to be justified.

The following day, the sergeant contacted criminal investigators to report “a possible war crime.” According to one criminal investigation agent’s report, the sergeant had not reported his concerns to criminal authorities earlier because he had waited to see the results of the administrative investigation and he had feared for his safety while working with the Special Forces team. The sergeant told the agents that several details at the scene made him question the veracity of the Special Forces soldiers’ story. He said that Sayari had been shot five or more times – in the torso and head – but all the entry wounds appeared to be in the back of the body, which made it unlikely that he had been facing the soldiers and pointing his rifle at them when he was shot. One of Sayari’s sleeves had brain matter on it, suggesting that his hands were on or over his head when he was shot. When the sergeant first arrived, he had noticed that Sayari’s corpse still clutched a set of prayer beads in the right hand, which was inconsistent with the Special Forces soldiers’ report that he had picked up and pointed an assault rifle at them. Among the photos that the Special Forces captain instructed the sergeant to delete was one showing Sayari’s right hand clenched around the prayer beads and another depicting bullet holes in Sayari’s back. The AK-47 could not be found.

Criminal investigators eventually found probable cause to recommend charges of conspiracy and murder against the four members of the Special Forces unit; they also recommended dereliction of duty charges against three of them, and a charge of obstruction of justice against the captain. Finally, they recommended that a fifth person, a chief warrant officer, be charged as an accessory after the fact.

After consultation with their legal advisors, however, commanders decided not to pursue any of the recommended charges in a court martial. To date, the only action commanders have taken in response to the criminal investigators’ recommendations is to reprimand the captain for destroying evidence. The captain was disciplined – he had inarguably destroyed evidence – but received only a letter of reprimand. No further action was taken against the soldiers. The commanders who declined to report Sayari’s death – and who later declined to prosecute the soldiers involved – received similar leniency; they have received no disciplinary action for their conduct. Human Rights First asked the Department of Defense on January 20 and 26, 2006 for an update on the status of Sayari’s case; as of February 10, 2006, we had received no response