February 18, 2010

At the 96th Hour

Posted: 11:27 AM ET

The more I learn about NATO’s 96-hour detainee rule, the more I wonder why military commanders and NATO politicians created it in the first place.


What I heard from nearly everyone I interviewed for this story is that the rule was developed in response to the scandal at Abu Ghraib prison. The world was watching, and no one wanted another humiliating display of detainee abuse. There had to be stricter rules when it came to detaining the enemy and there had to be a time limit on how long a suspect could be held. So, a small group of people agreed that 96 hours – or four days – was the magic number.

Nearly half of U.S. troops serving in Afghanistan are not operating under the U.S. military, but they are assigned to NATO. That means, nearly half of U.S. troops in Afghanistan are following NATO’s 96-hour rule. The soldiers we’ve interviewed say this rule caters to the enemy, and puts soldiers lives at risk. One former commander told me he would instruct his soldiers to “not bother” detaining the enemy anymore, because the 96-hour rule made it too difficult to keep someone locked up.

From the moment a soldier captures a suspect, the clock begins to tick. They have 96 hours to gather enough evidence to hand over to the Afghans, so that Afghan authorities can detain the suspects and do what they want with them. If the Afghans decide they don’t want to detain the suspect, the NATO soldiers have no other choice, but to release them.

We’ve talked to military experts, soldiers, former commanders on the ground, even people who helped implement this rule, and they all say the enemy knows about the time constraints, so they are trained to keep quiet for the 96 hours they are detained so soldiers will be forced to release them. How does this strategy make sense? How could anyone expect soldiers – who remember, are not trained to be police officers or criminal investigators – to gather all of the required evidence to lock someone up in just 96 hours? We certainly do not hold prosecutors to these strict time restrictions when they are building their case.

I have one very simple question for you: Do you think soldiers should risk their lives to detain the enemy under the 96-hour rule?

Filed under: Abbie Boudreau • Special Investigations Unit

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Thomas   February 18th, 2010 6:45 pm ET

As an Infantry Officer in the United States Army, I was troubled to learn about the fate of Captain Roger Hill and his outnumbered company of heroes. This event brings to light serious issues that senior military officials and politicians try to keep hidden. Therefore, let’s, in the interest of genuine concern and objective reasoning, encourage the audience to consider the complexities of the event without a capricious rush to judgment. The principal question is: Should those at the top, who observe the battlefield from the telescopic prism of digital command posts, be licensed to teach ethical conduct in the microscope of a counterinsurgency in which you are forced to eat, work, sleep, and live with someone who claims they’re your friend one day and then becomes your enemy the next? This particular case requires all of us to engage the mind in ethical issues and to disassociate ourselves from preconceived notions of accepted practices, while wrestling with the impossible choice between protecting the lives of your Soldiers or the adherence to rigid rules. We must promote and cultivate empathy with men of other and similar conditions and like the Army counterinsurgency manual says, “…we must create an environment of trust and mutual understanding.” So, for the sake of this discussion, “Never judge a man until you have walked a mile in his shoes.”
At the crux of this situation, and this very article, is the self-imposed, coalition “96-hour” rule that arbitrarily inflates internationally accepted humanitarian standards. Terms such as innocence and guilt have no place on the battlefield: it is either threat or no threat, and in this case there was an undeniable threat. However, because we have allowed these customs to go negligibly unadjusted throughout this postmodern counterinsurgency, we have inadvertently placed our Soldiers under the governance of two sovereign masters: a legal contract that they must abide by in constant fear of administrative punishment; and an ethical contract that they must stomach in appeasement of their own conscience. Soldiers are unnaturally forced to prioritize self, brother and purpose daily, but since there is no ethical uniformity between Soldiers of differing values and viewpoints, then how can we possibly dispose judgment? How can we look to anyone but ourselves to learn about ethical conduct?
Let’s take a look at an interesting variable here. The Wardak Police are corrupt, and specifically referring to the detainees on FOB Airborne, Army intelligence indicated that many were criminally linked to the police. As a matter of fact the circumstances that Captain Hill’s company faced were very similar to the ones leading up to the fate of the famed combat outpost Wanat. It was at Wanat where nine U.S. Soldiers were killed and over two dozen were wounded in the Konar Province just weeks before Captain Hill’s camp was suspected of infiltration. After a formal investigation, it was found by Army investigators that the fate suffered at Wanat was in fact, an “inside job” planned and executed in part by infiltrators and spies to include local Afghan government officials. Under normal and serene conditions, it would have been appropriate to hand over the detainees to the Afghan Police. However, Captain Hill was fully aware of this connection and dubious relationship between the detainees and the police, and did not transfer custody to them for that reason. Whether right or wrong, to undermine his thoughtfully calculated consideration, would be to undermine the purpose and legitimacy of the Army intelligence, because, after all, why does it exist in the first place if not to warn commanders, like Captain Hill, of these relationships? With all things considered, take a moment to imagine a world where systems fail, people disappoint, circumstances grow out of control, and you have behaved in a manner you never imagined you could.
I know that at first glance, the singular act that was in question may seem unacceptable. However, we should look at all mitigating and extenuating circumstances, and the integrity of his intent, which was to reduce the potential for this interpreter and other “confirmed spies” from hurting more Soldiers. We should be appreciative that Captain Hill sacrificed his career, so that others may survive, and luckily the 10th Mountain Division’s Battalions that replaced Captain Hill’s lone company were free of that insidious threat, because they certainly had more to lose than Captain Hill’s 89-man company. In light of all of this, and in response to Captain Hill’s professional sacrifice, the Department of Defense had dispatched a fleet of counterintelligence teams to Afghanistan in order to reduce the future threat of adversarial intelligence. After all, the FM governing counterinsurgency addresses subordinates’ decisions by, “encouraging bottom-up learning…and then accepting responsibility of their actions,” thus, of course, leading to another point. Do you really expect me to believe that a Captain and a First Sergeant, who are just company grade officers, are the only ones that are directly or indirectly responsible for this mishap? Where are the field grade officers? How come the Battalion Commander and Brigade Commander did not get relieved, or even a slap on the wrist? How come we are not reading about their outrage in defense of their Company Commander? Oh yeah, that’s right, they have too much at stake. Their career is inherently more important than your life.
Sadly, Captain Hill’s actions foreshadow the problematic future of this war, and most importantly, the future fighters of this war. The American public and American Soldiers already know that the purpose of this war is imbued with doubt and uncertainty. Soldiers know that they are under-resourced, especially since some have been to both theaters and have seen it for themselves. Even more detrimental to the Soldier’s seemingly perpetual dedication would be if their senior leadership, when given the chance to support and defend their lives, opted to sacrifice them in exchange for a petty opportunity to improve their careers. Upon who should the mothers, fathers, husbands and wives entrust to safeguard the lives of its citizen Soldiers?
Finally, since senior officials have taken the initiative to evolve the doctrine of counterinsurgency, perhaps it is time for all of us to reconsider the seemingly inerrant Laws of Armed Conflict. The Geneva Conventions were born in response to large-scale modern warfare and in direct preparation of an embittered rivalry between two nations of conflictive ideologies. The GCs were established during a period of global and diplomatic reinvention, and referred to the common warfare executed by sovereign nations that issued charters, declarations and policies regarding the equitable conduct of war. In Afghanistan, there are as many civilians as there are enemies as there are spies, and they all wear the same uniform, none. Thomas Paine once said that, “a long habit of not thinking a thing wrong gives it the superficial appearance of being right, and raises, at first, a formidable outcry in defense of custom.” If the recently changed doctrine of counterinsurgency demands a great deal from unknowing Soldiers and the ill-advised public, then why can’t we demand an equally great reevaluation of these dogmatic laws and regulations that only restrict us from acting in our self-interest? In the words of President Obama: “It is time for change.”

Jim   February 18th, 2010 11:35 pm ET

I have experienced the problems associated first hand with both the incorporation of the 96 hour rule and the lack of such a guideline. During my first deployment to Iraq in 2005, there was no real rhyme nor reason to the detention of suspected insurgents. Without clear guidance, morality was blatantly left by the wayside and overwhelming instances of detainee abuse occurred. Additionally, this practice became prevalent within the Government of Iraq and snowballed to constant negligence of the laws from which the United States swears to in the conduct of warfare.
I'll switch to my experience in Afghanistan as an Infantry Company Commander. I, just as Roger had, experienced severe friction with the detention of suspected insurgents. I found myself in the same shoes as Roger nearly 3 months before he had. Same situation with the terrible loss of a brave Airmen and tremendous Army NCO; same situation concerning my personal interpreter talking to other known insurgents. Although the 96 hour rule IS a huge challenge to deal with as a company commander, there are methods of transferring detainees to an authority who is authorized to conduct interrogation, in accordance with the Rules of Engagement. The process of doing so may not be flickering on a neon sign, but it IS available for commanders and IS a viable option.
As I mentioned earlier, I've seen an operating environment that lacked such guidelines early on in Iraq, and one that does not in Afghanistan. I firmly believe that the rule is in place to force commanders to work by, with and through the Afghan National Security Forces, helping to keep us on track while attempting to execute a delicate counterinsurgency. It theoretically forces the Government of the Islamic Republic of Afghanistan (GIRoA) to take ownership and develop its judicial systems, much as Iraq has with its Central Criminal Court located in Baghdad. What I do think is required is increased guidance and mentorship to those individuals within the GIRoA to force the system to work more efficiently, which it can. This may not necessarily be something accomplished by NATO ISAF Soldiers, but rather individuals sponsored by the U.S. State Department. Above my paygrade, but just a thought.
As a former Infantry Company Commander who knew CPT Roger Hill and his situation very well, I of course sympathize with the challenges of his situation. I do not on the other hand agree with nor can I condone the actions he took. There were and still are other options available to commanders. Unfortunately for Roger, and more importantly the Soldiers he led, he did not do the necessary research.
Conducting operations in Afghanistan is a real challenge for any Company Commander. You are often forced to execute operations in a manner well beyond the constraints of doctrine and it can physically and emotionally exhaust you. That all being said, a company commander is not drafted into command. He or she volunteers and is eventually selected based off of performance. We rose our hands and asked for this challenge, knowing very well the road that lay ahead. As much as I may sympathize with Roger's situation, he knew this, and the actions he took resulted not only negatively for himself but his Soldiers and the people of Wardak Province, who he had a commitment to.

Kevan   February 19th, 2010 7:35 am ET

Captain Hill’s actions were unlawful and his justification weak – if he can disclose now that phone intercepts were used why couldn’t that material be declassified and used to satisfy the Afghan authorities that the men had a case to answer? The fundamental issue is not "whether soldiers should risk their lives to detain the enemy under a 96 hour rule?" but, “whether there should be guidelines that apply to the conduct of military personnel who do not have powers of arrest when operating in an environment where friend and foe look alike?” Gen McChrystal has made clear that risks must be taken to ensure that the people centric strategy has a chance of succeeding, in this respect he has issued instructions limiting the use of airstrikes etc that could place troops at increased risk in order to ensure that the chances of injury to civilians is minimised. This issue needs the same consideration. Many of the people detained by NATO troops are innocent and unduly harsh treatment or extended detention will simply contribute to the problem. Whether 96 hours is the right length of time or not I don't actually know, but the need for humane treatment of detainees and some limitations on how long the military can hold people before turning them over to the national authorities is a must.

Nick   February 19th, 2010 9:39 am ET

To Jim, or James B, your sycophancy will still not assist in your premature departure from Fort Irwin. It also won't help you find your pistol. And, speaking of your incident that occurred just three months earlier: Where was your FOB located? Permit me to re-phrase the question: Under what command were you, and how close were you to its resources at Bagram Air Field? And, finally, what was the medical condition of your detainees? We’ll circle back to that one. Because it wasn't just the 96-hour rule that forced his hand, since there were many other factors at play. There was both a lack of support logistically and a lack of support from the chain of command. But let’s not kid ourselves, the lack of support from the chain of command did not force Captain Hill to do what he did, but it certainly had an effect.
We should naturally raise our eyebrows in response to Captain Hill’s actions, but they should be raised even higher at the fact that, despite what was done to ensure the detainee’s incarceration, the system failed and these criminals, spies, insurgents, Taliban – call them what you like, but at the end of the day, the good guy got slammed and the bad guys still got away. But all of this could have been avoided had a Battalion Commander or even a Brigade Commander stepped in and said, “Why don’t we help these Soldiers out, and preempt a situation?” Or perhaps, if a system existed that didn’t rely on exceptions to policies and Brigade level approval forms for detention. How many Brigade Commanders see detainees vs. how many Soldiers detain detainees?
Circling back to the medical condition of the 12 detainees, they were in perfect health, mentally and physically. Whereas, the interpreter that you ‘dealt’ with had to undergo some reconstructive treatment with sutures, stitches and bandages, didn’t he? So, while we cringe at adjectives and phrases describing what Captain Hill did what would we be compelled to feel if we saw a photo of your detainee? Captain Hill’s efforts positively led to the “ousting” of spies that were hindering coalition efforts and harming American Soldiers. The only players that let anyone down were the Afghan Government for releasing enemies of their own state, and Captain Hill’s chain of command for not defending his honor. God Bless Captain Hill and God Bless the Soldiers of the United States Army!

Tom   February 19th, 2010 9:59 am ET

In Roger's case 96 days probably wouldn't have made any difference. He stepped out of bounds in obtaining confessions and/or information. While his method was obviously effective and his intent was honorable, he did not follow the rules. In fact he made up his own rules and that is never good.

From a purely investigative approach, I believe 96 hours should be adequate to determine probable cause or reasonable suspicion to detain a person. There should however be a provision within this initial period to justify detaining someone beyond the 96-hour period pending evidence and risk of release.

Roy Gandy   February 19th, 2010 11:51 am ET

I support the U.S. troops, but they are put in a no win situation. This makes me very angry at the President, his Generals and Advisers. If troops are committed for war they cannot have their hands tied. Either let them do their job of winning a war or get them out of there. The Commander in Chief needs to stop this and lead for the interest of the U.S. and his troops. This is not a police force, but a military force in a war. The buck stops with him to redefine it as a war that is winnable rather than viewing all those that fight us as a common criminal.

Thank you for doing this story and similar stories.

Becky McCoy   February 19th, 2010 2:45 pm ET

Thank you for your investigation of the plight of our soldiers in war. Roger Hill, a former student in my classroom, is one of the finest young men I have had the priviledge to teach. He would never have violated the rules unless the situation forced him to. I also believe blame should be placed on his military superiors. They failed in providing him with the support he and his men needed to complete their mission.

Bill   February 19th, 2010 6:47 pm ET

The issue is not the 96 hour rule but the treatment of a USA Officer who already distingushed himself in the Army and been selected for duty at the 3rd inf.

Why was a West Point Officer treated as he was? Who in his command chain let this get out of control? Is there more to this story than is being reported? A head should roll but not Rogers.

In my day it would have been handeled by an Ass chewing and an eye blink and never moved up the command chain except as Bar room talk.

shelley   February 19th, 2010 10:36 pm ET

Tom, lets change the situation around and put you in that type of situation. Say someone you trusted to help you , went and secretly told someone that hated you with everything they were, where you and your family was located. Those people then began to injure and even kill members of your family, because in the military your company is your family. And after tying to get help, you find out who the informant is. So sir, what I am trying to ask you is, if you only had 4 days to get a confession out of that person or persons before they were ultimately released, and you knew for a fact they killed some of your family, just what lengths would you take to try to protect the rest of your family and have justice served? I think I would have done worse than what Cpt. Roger Hill did, actually I know I would have!

Jim   February 20th, 2010 5:36 pm ET


The professionalism overflows.

Answer 1: Same distance from Bagram as FOB Airborne, which clearly plays no factor whatsoever.

Command: My men figured out the answers at our level.

Detainee condition: Don't kid yourself. If you were there, then you know better. (Either location)

Endstate does not change despite insults or any further discussion. The rule itself is in place to prevent issues that had been experienced in Iraq. Is it a challenge? Yes. Is there a bigger picture to worry about? Yes, absolutely.

You and I both know the details surrounding the incident and the Art. 32 hearing. Roger's actions alone were not in question. It was the actions of a few.

Does there need to by a system of checks and balances in place? Yes. I'm open to suggestions.

Wouldn't mind going point for point sometime, I know what position you were in and there are a lot of details you don't have.

Thanks for the input and God Bless you and your family.

Dennis   February 21st, 2010 1:16 am ET

I see the same BS being done here as I did when I was in Viet Nam.
I think the bozos who make these rules are people who have no idea
what the #*/+ they are doing.
A person should never ask another person to do something they would not do them selves. You don't see the people who have been there and done that making such stupid, totally dumb rules, only the supposedly
highly educated idiots that will do nothing in their life except heat a chair seat at some desk.
Their is no excuse for brutality with prisoners but also their is no excuse for stupidity with command.
If it continues this way our troops will return home mentally wounded as did many Viet Nam vets did saying "don' mean nothing no way"

May God protect our troops and truly free the Afghan people!

Larry Hill   February 22nd, 2010 10:29 pm ET

Our government is sick to treat our courageous soldiers in this manner. I imagine there are plenty of family members who are glad Cpt Hill was there to look out for the welfare of their loved ones, withour regard for the possible negative impact his decisions and protective measures would have on his career. If you have read about this case, you know the behavior of his upper command was shameful and self-serving. Captain Hill's career was sacrificed, but at least, he can hold his head up and sleep at night, because he did his duty to his soldiers and our country. The comments of the Monday morning quarterbacks is amusing. These military geniuses who weren't there, come out of the woodwork like worms to tell Capt Hill what he did wrong, and how the situation should have been dealt with, according to the MANUAL-Doctrine of Geneva, etc. If you weren't there for the precise situation and circumstances that occurred, you've got no business trying to second guess this man who had his neck on the line for you and all the rest of us. Where were these seat warming sooth sayers when the blood of our bravest was flowing into the dirt. Capt Hill and his soldiers were there doing their best to stop the death and suffering and trying to accomplish and impossible mission. Sorry the manual and Geneva just doesn't cover everything.
The United States is the greatest nation on our planet because of the love and sacrifice of our courageous service members. Thank you, you are not forgotten, nor the dead and wounded. I am sorry to say that as a nation and government we have let you down, yet you still go on. Valor is without measure and so necessary to our way of life. Chin up....

John Frederikson   February 23rd, 2010 5:26 pm ET

Cpt. Hill acted appropriately. We train our soldiers to protect their subordinates and that is what Cpt. Hill did. If he had not done so, he would be writing letters to surviving parents, spouse and children. He took a risk to protect his troops and in my opinion, deserves applause not to recieve a general discharge! His actions were couragous; those above him are cowards.

Robert M. Padula   May 25th, 2010 9:37 am ET

Having reviewed the excellent investigative reporting on the legal case involving Attorney Fine, it quickly becomes clear that he is a political hostage being held against his will. I'm sure the LA is counting on the fact most of America will go--"awww, that is terrible", or the less than civil will make a crack about "all lawyers" belong in jail. Come on people, this is just another step towards a police state. All you have to do is review the Judges past rulings as well as follow the illigal application of the law by the courts Junk Yard Dog Carluchi(?) and it quickly becomes obvious that constitutional as well as civil right laws are being killed in this process. Additionally, the fact the ACLU has done nothing in itself cries out for investigation. Why because Fine is a Jew, is white or the head of the ACLU is married to one of the Judges? Truly racist and truly wrong, yet nothing is done. You do not have to be American to realize how wrong and illegal this process is. Lawyer Fine must be set free and allowed to proceed. Obviously, he will now need an attorney of his own since the "system" decided his law license needed to be "revoked" The only thing that moved faster was the judicial court in the LA system voting to overturn the finding that what Attorney Fine had been stateing about the extra payments being illegal to the judges was in fact right-So out comes a special ruling–Makes you want to laugh, if it was not so sad. I only hope the reporter who let this story out follows up. This one needs the light of day. I don't know Attorney Fine, but he is a political prisoner who deserves to be set free.

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