Color Blind

Herzo Base map circa 1965

Herzo Base map circa 1965

15:15 hours (3:15 PM local time), mid-July 1976. Back road from Erlangen to the U.S. Army’s Herzo Base, Herzogenaurach, West Germany

America’s Bicentennial celebration came and went. I was just back from three weeks of stateside leave and working an 8 AM to 8 PM dayshift. I opened the snack bar-bought bag of chow.

“How can you eat with him staring at us,” Murph asked.

It was his third day on the job after MP school and he was seeing his first dead body. Newbie Military Policeman Private First Class Sean Murphy of Massachusetts was not feeling well. Our jeep was parked off the road a few feet from Mr. Herman’s passenger-side windows. We had an eye-level view of him. He was dead, yet his eyes were open.

“Our lunch is two hours cold, and my burger is under cooked. Do you want your fries,” I asked.

“No,” PFC Murphy replied, with a look of disgust on his face.

I was thinking, not being callous. Herman’s tires had left no skid marks. I wondered if he had turned his head to the right in fear or for some other reason.

We had missed lunch at the mess hall (Army dining facility) because of an earlier call and might miss dinner there due to other calls after this one. Because we lived in the barracks, we were issued meal cards and could eat for free in the mess hall. But if we missed meal hours, we either purchased food out of pocket or went hungry.

A blanket – from our emergency aid kit – was draped over the driver’s side windows and part of the front windshield. While several German civilians from houses north across the field had walked over and gathered together across the road from Mr. Herman’s car, the blanket concealed him from prying eyes and unauthorized photography and concealed us from view by spectators.

“You forgot to ask Specialist 5th Class Windham P. Stansfield his M.O.S. and if he has scars or tattoos. Go ask him, but don’t read him his rights because CID already did,” I chided.

“I’m not stupid,” he said, with a hint of anger in his voice.

I replied, “You are new. Never mind. Watch our German friend here. I’ll go ask him myself.”

Stansfield had asked Murphy three times if he would read him his legal rights, aka Miranda warnings, and he had dodged answering. Not bad for a rookie cop.

CID stood for C.I.D, the Army’s Criminal Investigative Division. MPs referred to that august agency and its detective agents as CID, as in Sid Cesar the actor or Cyd Charisse the dancer.

“Hey Sumner. I need you to hold the tape again,” Agent Hawk requested.

“Sure Chief,” I replied.

CID Agents were a 50 / 50 mix of NCOs and Chief Warrant Officers who worked in civilian clothes and were to be called either Chief or sir. They are highly trained. Hawk had been a Special Agent for more than a decade. He was smart, experienced, and informative.

The wind was still, the temperature mild, and the sky was a bit hazy but otherwise clear.

We measured the width of the roadway, edge to edge, and straight through the tightly clustered debris field. The two-way road was not painted with a dividing line. Yet the center of that cluster matched the measured center-point of the roadway. The force of gravity caused broken glass and lightbulb filament dust to drop straight down. It indicated that both cars were several inches across the center of the roadway when they collided head-on. Stansfield’s Plymouth was much heavier than Herman’s Karmann Ghia. The latter was built with its engine in a rear compartment.

Hawk whispered, “If either of them had stayed to the right, Herman there would be awake and far from here.”

I replied, “The tape don’t lie, Chief.”

Then I walked the 50 yards to the German ambulance where Stansfield was receiving first aid.

“What’s your Military Occupational Specialty and do you have any scars or tattoos?”

“35 Delta (D) Meteorological Equipment Repairman, and no and no. Aren’t you going to read me my rights,” Stansfield replied.

“The Chief will. How’s the nose,” I asked.

“Doc here says it is broken. I’ll have two black eyes and probably headaches for a few days.”

“Stay awake tonight. You’ll be okay.”

“As if I could sleep. … Is he really dead,” Stansfield asked. “He looked like he was asleep with his eyes open, but he wasn’t bleeding or breathing.”

Hawk had read him his legal rights, and, while Stansfield declined to answer potentially incriminating questions, he was required to provide administrative information and take a field sobriety test. He refused the latter, so his commander had a duty to revoke his driver’s license.

“You can still take the test,” I added.

He replied, “Are you going to read me my rights?”

Either Stansfield had a short-term memory problem from a concussion, or he was being deliberately uncooperative.

“Stay loose, Soldier.”

“Thanks!”

I rejoined Murphy. An Army chaplain came. We prayed.

A German doctor closed Herman’s eyes. The swift blow had broken his neck and killed him instantly. While I had seen far worse as a MP patrolling Bavaria, veterans like Stansfield surely had seen the unimaginable in Vietnam. But 27 is too young to die.

And Mr. Herman was the descendant of a famous German 15th century inventor.

I began writing the MP report. Agent Hawk interrupted and we discussed the case. CID was the lead investigative agency in all serious felony cases; as Hawk planned to charge Stansfield, I was duty bound to also charge him with those crimes on the MP report. But we differed over also citing Herman as being ‘at fault’ in the accident. When Murphy and I returned to the MP station, the Desk Sergeant directed me to only list Herman as a victim on the MP report. Yet my sworn statement was mine alone to author and attest to.

Adjudication of the matter would be up to the U.S. Army. As was often their practice, German prosecutors waived their right to primary jurisdiction under the Status of Forces Agreement.

The Commanding General ordered Stansfield to stand trial by General Court Martial. Just after Labor Day, the light-skinned African-American pled “not guilty” to charges of Reckless Driving and Negligent Homicide. If two-thirds of his jury – what our military calls a court martial board or panel – voted to convict, he would face up to six years in a military prison.

All but one of the jurors was white. The foreman was an Army Major and the panel’s junior member was a Staff Sergeant. Hawk was white. I am a fair-skinned 14th generation American.

After the jury was seated, a forensic expert, two German Policemen, the on-scene German doctor, and Agent Hawk testified for the prosecution. Captain Kidd was also to testify. He had a Degree in Science, was purported to be an expert witness, and headed the Army’s Traffic Investigations School in Europe. I had been notified that I was a ‘standby’ witness, so I reviewed the case file the week before the trial to refresh my memory. Murphy was not called.

There was no living eyewitness to the accident, other than the accused.

Captain Kidd was challenged by the defense and disqualified by the trial judge. While he reviewed CID’s report, photographic and forensic evidence, and the accident sketch, he had neither visited the scene nor ever conducted an on-scene traffic accident investigation himself.

The prosecutor’s office called me at the barracks and instructed me to come to the court.

Defense counsel had made a perfunctory objection. The prosecution stated that I was being called as a non-expert yet experienced witness to the accident. The judge ruled that I would be allowed to testify if the prosecutor could first establish my credentials for the court.

I took the stand and was sworn in …

None of us were stupid.

I was the senior MP on duty out of the Erlangen MP Station the day of the accident and fairly well experienced. After two years on the job, it was my sixth traffic fatality case. I had investigated upwards of 250 traffic accidents, a number of DUIs, barroom brawls, domestic disturbances, dozens of simple and aggravated assaults, a couple of suicides, two accidental discharge shootings, a double homicide, property crimes, numerous drug-related offenses, sexual assault, and more. (This was soon after Vietnam. More than 300,000 GIs were stationed in Europe; MPs were usually too busy.) Since joining the Army in early 1974, I had attended college in my off-duty time and had amassed 21 credit hours with a 4.0 G.P.A. And I had completed most of the traffic investigations correspondence course.

“Overruled. The witness may testify,” the judge stated.

Strangely, the prosecutor first cautioned me to limit my testimony to what was in the MP report.

Heads snapped up at the defense table and Stansfield’s lawyer smiled.

The prosecutor selectively walked me through some of my investigation’s findings. He then asked me two questions that he needed answered for the jury’s consideration. They were why he called me to testify when Captain Kidd was disqualified.

“Based upon what you saw at the scene, was Specialist Stansfield’s vehicle across the center-point of the roadway and did his vehicle strike Mr. Herman’s vehicle?”

“Yes sir.”

“Did the left-front-headlight-to-left-front-headlight collision cause the frontal collapse of Mr. Herman’s vehicle, its steering column to be forced backwards and upwards, and its steering wheel to strike Mr. Herman hard on the side of his neck just below his left ear?”

“Yes sir.”

“I’ve no further questions.”

“Cross examination, counselor,” the judge asked.

Stansfield’s lawyer replied, “Yes your honor.”

“Specialist Sumner, have you investigated other accidents on that road?”

The prosecutor objected, “Relevance, your honor? Stansfield is not on trial for other accidents.”

“Counselor,” the judge asked.

Stansfield’s lawyer replied, “Specialist Sumner was allowed to testify as an experienced witness. With the court’s permission, I wish to ask him about it as it pertains to something in his sworn MP investigator’s statement for this accident which is attached as an enclosure to his MP report.”

“Objection overruled,” the judge declared.

“Have you investigated other accidents on that road?”

“Yes sir.”

“How many?

“One.”

“When and where on the road did it occur?”

“Back in April and the point-of-impact was approximately at the same place, just over the rise immediately after coming out of the sharp curve.”

“Describe that accident, please.”

“An MP jeep sideswiped a German woman’s car. More specifically, both of their drivers’ side mirrors were across the unmarked center-point of the roadway. That was the point-of-impact. The German Police and I cited both drivers as ‘at fault’ in the accident. There were no injuries.”

“You cited both a fellow Military Policeman and the German woman in that accident?”

“Yes sir.”

“Okay. So why did you not cite Mr. Herman in your MP report as also at fault in the matter before this court?”

“Objection: It is not in Specialist Sumner’s statement or in the MP report.”

“I’ll allow it. Overruled.”

“I was ordered by the MP Desk Sergeant to not cite Mr. Herman as he was a victim because he was dead, and we don’t charge dead Germans.”

“We don’t,” Stansfield’s lawyer asked.

“We do, sir. While the Army does not prosecute foreign nationals for criminal offenses as they are not subject to the UCMJ, we do cite them in the subject/suspect block of MP reports when they are at fault in traffic accidents involving military personnel or Army property.”

“So, you wanted to also cite Mr. Herman as being ‘at fault’ in this accident?”

“Yes sir.”

“Did the German police also cite Mr. Herman in this accident?”

“Yes sir.”

“Did you disagree with the MP Desk Sergeant at the time?”

“Yes sir, respectfully, and then I noted the Army regulation authorizing the citation of foreign nationals for traffic offenses in my sworn statement.”

“Is there anything else that you wish to add to your testimony,” Stansfield’s lawyer asked.

The prosecutor again objected, but again the judge overruled him.

“Yes sir. I also noted in my statement that Agent Hawk determined both vehicles had room to safely pass had either vehicle been to the right in their lane. Because a person had died, the German Police had blood drawn from both drivers. No alcohol was found in Herman’s blood. Stansfield admitted to them he had one beer during lunch, yet his blood-alcohol level was well below the legal limit and he was not charged with Drunk Driving. We determined that neither vehicle was speeding, the roadway’s shoulders were soft, and they had little time to react before the crash. I have often traveled that back road. The curve needs ‘extreme danger’ warning signs. The speed limit needs lowered. And the road needs painted with lane markings.”

“Thank you,” Stansfield’s lawyer said to me.

He then stated, “I have no more questions, your honor.”

“Redirect?”

“Did the headlight-to-headlight impact cause the frontal collapse of Mr. Herman’s vehicle, its steering column to be forced backwards and upwards, and its steering wheel to strike Mr. Herman on the side of his neck just below his left ear?”

“Yes sir,” I replied.

“I have no further questions,” the prosecutor said.

The judge replied, “The witness is excused.”

“The prosecution rests, your honor.”

The judge then addressed the court martial panel: “We will take a short break and then proceed.”

The visibly angry prosecutor, a Captain, caught up with me in the hallway as I was leaving.

“You blew my case; there is no way they will vote to convict,” he said.

“Sir, I told the whole truth. Regardless of whether they find Stansfield guilty or not guilty, I will sleep soundly tonight,” I replied.

I turned and saw on the wall a painting of Lady Justice with her blindfold firmly in place. I saluted her and walked away.

Epilogue

That back road was later straightened and better marked. It currently forms the northern perimeter road for the Adidas Shoe Headquarters complex.

We cannot know if Mr. Herman was inattentive, looking off to his right, staying well clear of the soft shoulder, and never saw the Plymouth coming. Perhaps he saw the danger, turned his head to look for an escape route, and had no time to maneuver.

Conversely, faint skid marks from two of Stansfield’s tires were left on the road for a short distance leading up to the point-of-impact. It indicated he made a split-second decision to brake but could not stop in time. The jury acquitted Specialist Stansfield.

Renew the Patriot Act provisions or risk another 9/11

A police officer plays Taps in The Pit at the WTC's Ground Zero on the 1st anniversary of 9/11.

A police officer plays Taps in The Pit at the WTC’s Ground Zero on the 1st anniversary of 9/11

Before the Patriot Act, the FBI would have been stymied had it conducted a counter-terrorism investigation involving a now infamous American agent of a foreign power.

Anwar al-Awlaki was born in the United States.

Apparently, Senators Rand Paul and Mike Lee believe the only thing worth remembering about him is President Obama “illegally” had him killed in Yemen using a Hellfire missile. (No matter that al-Awlaki: had sent “panty bomber” Abdulmuttalab to blow up a passenger plane over Detroit; attempted to blow up a DHL cargo airplane in flight; had become the well-publicized spiritual leader of Al Qaeda in the Arabian Peninsula (AQAP); and was heavily guarded in Yemen’s remote tribal areas – sending Americans into those wilds to arrest him would have been difficult and dangerous.)

Others vividly recall that al-Awlaki twice met with 9/11 hijackers.

I agree with former federal prosecutor Andrew C. McCarthy that the collection of metadata should be abolished. Further, I agree that federal judges are unqualified to conduct national security. Republicans and Democrats in Congress have repeatedly abdicated their oversight responsibilities of our intelligence community. Now, some Republicans are seeking to give the FISA court even more authority; far too many Democrats – who seek to vest America’s foreign enemies with our Constitutional Rights – are cheering them on.

Senators Paul and Lee seem to assume America could also safely let the business records and roving wiretap provisions of the Patriot Act expire after March 15, 2020.

Yet Americans would be less safe, and what would have happened had the FBI investigated Anwar al-Awlaki before 9/11 helps to demonstrate why. He was an American and without a suspected crime to bring before a federal criminal court judge, the FBI’s counter-intelligence investigators would have needed to clear each subpoena for business records and wiretap with the FISA court.

The background

In late 1999, Saudi Arabia informed our CIA that members of al Qaeda were about to meet in Malaysia. While Khalid al-Mihdhar was en route to there, the CIA had a foreign intelligence agency enter his hotel room and copy his passport which included an open-ended visa to the United States.

Khalid al-Mihdhar was known by the FBI to be the son-in-law of Ahmed al-Hada who ran al Qaeda’s telecommunications relay in Yemen. In 1998, U.S. embassy (Nairobi) bomber Mohamed Rashed Daoud Al-Owhali told the FBI he called al-Hada’s phone number to relay messages to Osama bin Laden. The FBI’s NYC field office was investigating the two embassy bombings and conducting counter-terrorism investigations of al Qaeda; al-Mihdhar entering America would have caused the FBI to investigate.

In January of 2000, the CIA failed to inform the FBI that future hijacker al-Mihdhar had a visa to enter the United States.

That April, the CIA then failed to tell the FBI that al Qaeda member and future hijacker Nawaf al-Hazmi (who the CIA observed with al-Mihdhar in Malaysia) arrived in Los Angeles from Thailand on January 15, 2000. The CIA did not know that al-Mihdhar was also on that plane; the agency with the authority to investigate inside the United States (the FBI) soon discovered it after 9/11.

Further, in 2006, the CIA’s Inspector General reported that none of the “50 to 60” people at the CIA who read – before 9/11 – about al-Mihdhar’s visa and al-Hazmi’s arrival in Los Angeles had complied with the CIA’s own directive requiring those officers to place the two on the terror watch list.

What might have been

What if the CIA had ensured their January 2000 cable was sent to the FBI? And what if the FBI placed al-Mihdhar on the terror watch list, opened up an investigation, and he was spotted when he arrived in Los Angeles the following week?

To that point, al-Mihdhar and al-Hazmi had committed no federal crime. It would have necessitated an intelligence investigation that would have almost certainly led to al-Awlaki.

And al-Awlaki’s travels almost certainly would have led the FBI to Hamburg, Germany. (More on this in a moment.)

An FBI informant lived in the same apartment complex and socialized with al-Hazmi and al-Mihdhar. The latter had a home phone for his apartment, using his real name, and was listed in the San Diego directory. But except for nine phone calls to his father-in-law’s number in May of 2000 after his wife gave birth in Yemen, he did not use that phone to communicate with anyone involved in the 9/11 plot. (The NSA did not routinely investigate calls between known foreign threats and those in America before the Patriot Act due to, as former FBI Director Robert Mueller later testified, “an abundance of caution for the privacy of U.S. persons.”) 

The FBI’s informant also observed two Saudi Arabians from those once secret ‘28 pages’ socializing with al-Mihdhar and al-Hazmi. One of those Saudis lived in that same apartment complex in San Diego. Both regularly attended prayers services conducted by al-Awlaki. Both received significant funding from the Saudi government (which had also funded the mosque).

If fact, one of those Saudis brought al-Mihdhar and al-Hazmi to meet al-Awlaki at that mosque within days of their arrival in January of 2000.

The other Saudi communicated with Ramzi bin al-Shibh in Germany by both phone and email several times during 2000 supposedly (per those emails) looking for a wife to marry.

And bin al-Shibh was the plot communications relay between 9/11 mastermind Khalid Sheikh Mohammed and lead hijacker Mohamed Atta.

That same Saudi’s last communication with bin al-Shibh was in December 2000 just days after al-Hazmi and Flight 77 hijacker pilot Hani Hanjour moved from San Diego to the East Coast. (al-Mihdhar left the country in June of 2000 and returned to America in 2001.) Hanjour and al-Hazmi then visited al-Awlaki at his new mosque in Virginia. The latter had moved there during the fall of 2000.

Anwar al-Awlaki traveled extensively. That same fall, he spent a week in Europe including several days in Hamburg, Germany. The first thing a hotel there asks for when you register is your passport to confirm your identity. Strangely, Germany’s investigators were unable to find out where al-Awlaki stayed while there.

Atta and bin al-Shibh operated out of Hamburg.

Atta first came to America in June of 2000 and he traveled frequently. After 9/11, the FBI’s search of flight records revealed a Mohamed Atta flew on the very same flight number – just one day later – direct from Frankfurt to San Francisco as al-Awlaki did immediately after visiting Hamburg. The FBI never determined either Atta’s or al-Awlaki’s whereabouts for several days after those flights. Then, al-Awlaki showed back up in San Diego and Atta traveled to the East Coast a few days later.

Andrew McCarthy pointed out that the business provision of the Patriot Act, “also known as Section 215, simply gives intelligence agents the same kind of power that criminal investigators have to compel production of documents.” Before the Patriot Act was enacted, the FBI could not issue a subpoena, a National Security Letter, concerning al-Awlaki during an intelligence investigation. 

When al-Awlaki returned from Hamburg, the FBI would have had to go to the FISA court every time they needed business records as they tracked him after he arrived in San Francisco and perhaps met with Atta.

How did al-Awlaki communicate ahead of time with those he visited with in Hamburg during the fall of 2000? After 9/11, the FBI did not find communications from his known devices to anyone in Hamburg. Yet had they conducted an intelligence investigation, they would not have been authorized to conduct a roving wiretap of his communications; the law, prior to the Patriot Act, did not authorize it.

Perhaps the Saudi who called and emailed Ramzi bin al-Shibh communicated for him with al-Awlaki’s hosts in Hamburg. Or perhaps al-Awlaki used other phones or communication methods such as emailing from computers outside his home. Alas, we’ll never know.

If the Patriot Act provisions expire, we will resume taking the same risks we took while an American agent of al Qaeda assisted in the mass murder of 3,000 people here. We’ll risk another 9/11 – or worse. President Trump and every Member of Congress should take that into consideration.