Iraq chaos stalls justice in slayings of two soldiers

TRACY, Calif. – He’d trained as a combat lifesaver. Now Spc. Patrick McCaffrey lay gravely wounded, his blood pooling on a street in Balad, Iraq.

Eight bullets had found flesh between the heavy body-armor plates meant to protect the California National Guardsman’s torso. They sliced into his lungs, liver and other organs and struck two vital arteries, including his aorta.

Lt. Andre Tyson sprawled next to him, a round having pierced his forehead. He was gasping for breath.

Despite medics’ frantic efforts, McCaffrey, 34, and Tyson, 33, soon died. But with their deaths a strange subplot in the Iraq war was born – a legal case still quietly unfolding today, as the U.S. Army pursues a murder trial.

McCaffrey and Tyson were slain by enemies posing as “friendly” Iraqi national guardsmen, according to Army investigators. The Iraqis patrolled alongside the Californians, then betrayed them when they turned their backs, investigators say.

While the notion of “murder” in a war zone may be counterintuitive, the slayings of McCaffrey and Tyson were so brazen and brutal that the U.S. military has pursued a murder trial for almost as long as it has waged the war itself.

One suspect has been in custody since July 2005. But putting him on trial has thus far proven impossible amid the bloody chaos of Iraq. Prosecutors have been hampered by murky Iraqi allegiances, conflicting stories, inconclusive fingerprint evidence, and witnesses who have gone missing.

‘We are constantly under attack’

It was the spring of 2004, just after the Abu Ghraib prison scandal ignited outrage in the West and across the Arab world. Tensions between the Iraqis and Americans were running high.

“We are constantly under attack by these people,” McCaffrey, a father of two, wrote his mother in a May 16, 2004, e-mail. “I love the little kids though … they remind me of my own, and I always give them food and water even though we are not supposed to.”

Five weeks later, McCaffrey and the other soldiers of A Company, 579th Engineer Battalion, linked up with a unit from the Iraqi Civil Defense Corps, or ICDC. Created by the United States, the ICDC was the country’s main internal security force, meant to battle insurgents.

A supply hub known as Logistical Support Area Anaconda, 85 miles north of Baghdad, had been peppered with rocket and mortar fire for days, including an attack that killed two Americans and wounded 25.

Those attacks lent fresh urgency to the joint unit’s hunt on June 22, 2004, for weapons stashed in villages, farmlands and woods.

“We’re walking through brush neck high, trying to keep our footing, and hoping our next step doesn’t land us falling in a canal,” Tyson’s driver, Spc. Chris Murphy, said later in a sworn statement to investigators. ” ‘It’s like Vietnam,’ is the running joke.”

Of the Iraqi troops being trained by Americans, he added: “I’ve heard on the news that they’re more than ready to take over after we’ve left. But from what I’ve seen, they couldn’t be more wrong.”

Some of the territory the Guardsmen patrolled that day as part of “Operation Deliberate Action” was lush and ablaze with sunflowers. But the summer sun was infernal, and McCaffrey administered first aid to several soldiers for heat exhaustion.

“Patrick would burn the candle at both ends to get the job done,” his father, Bob McCaffrey, would say later.

Patrick McCaffrey, who managed two auto-body shops in Palo Alto while he and wife Silvia raised two young children, had told his family that “something happened to me” on Sept. 11, 2001; the terror attacks summoned him to a new duty. In his journal, he wrote of waking up that night, seeing his sleeping wife holding their daughter in her arms, and thinking of “those fathers and mothers that were taken from their children (who) will never be able to hold and kiss their children again.”

A month later, he was sworn in as a member of the California National Guard. Protecting the homeland was his aim, not shipping overseas – and when the call came he didn’t want to leave. But, his father said, “he had signed up and given his word, and he always kept his word.”

By 2004 he was fighting in Iraq, and aching for his family.

“I have sent a box home, and it has T-shirts for you, dad and Silvia and a teddy bear and hat for junior and Janessa,” he wrote his mother in May. “I’ll try to be home for Janessa’s birthday, I have put in for leave for 15 days.”

Tyson had just finished officer-candidate school and was managing a Costco store in Glendale when he was called up for duty.

This day, as ranking officer in the search party, Tyson decided to split his squad so his men could cover more ground. He, McCaffrey, Spc. Bruce Himelright, three or four Iraqi soldiers and an interpreter marched through fields and farm villages in search of weapons.

American soldiers never saw it coming

As the Americans and Iraqis paused to get their bearings and locate the other American search party, Tyson worked the radio on McCaffrey’s back while Himelright monitored the area for ambushers.

At 12:04 p.m., the Iraqi trainees pounced, according to American investigators.

None of the U.S. soldiers had a chance to fire back. Tyson’s M-16 was still on the “safe” position when he fell. His comrades apparently never saw it coming: Multiple bullets struck McCaffrey and Himelright, most of them from behind.

“I recall the gunshots being loud and I started feeling them hit me in the back,” Himelright told investigators. He never saw the shooters, but was certain it was the ICDC who had done the firing.

Himelright tumbled into a canal, where he discovered he was bleeding. “I started to get up and turn around when I felt that I was being shot again,” he said. When the firing stopped a few moments later, Himelright crawled out of the canal and found his fallen comrades. Three ICDC soldiers had vanished; one remained, along with the interpreter, he said.

The Army swept into action, ringing the village with Humvees, interrogating any Iraqi man they saw – swiping several for gunpowder residue – and questioning local leaders.

After a headcount at the base, American officers focused on two ICDC soldiers who shared a common tribal name, Talib Kareem Musleh Al Hishmawi and Sabah Kareem Muhammed Al Hishmawi. The pair, who had been patrolling with the Americans, had not returned more than a week after the shootings. Moreover, a third Iraqi guardsman identified Talib as the shooter.

The Army’s Criminal Investigation Command, known as CID, reported its official findings in September 2005: ICDC patrolling with the U.S. soldiers had shot the Americans.

CID found probable cause to believe a member of B Company, 210th ICDC “committed the offense of murder when he shot and killed Spc. McCaffrey during a joint U.S. Iraqi patrol.”

The CID report continued: “The shooting occurred from within the patrol element.” The suspect’s name was redacted in a copy of the report reviewed by The Associated Press.

Not everyone agrees with CID’s conclusion.

Sgt. Travis Nease, a medic who was first on the scene to assess casualties, believes Tyson, McCaffrey and Himelright were shot by off-duty ICDC troops who ambushed the Americans at close range, then fled.

Nease was on a sniper “overwatch” team assigned to protect Tyson’s platoon and other units, monitoring their movements from atop a hill about 400 to 700 meters away. While he did not actually witness the shootings, he had seen the search party in the moments before and after. Given the positions of the Americans and the Iraqis, he disputes the CID account.

“The guys that were walking with them did not shoot them,” Nease said in a telephone interview. Nease theorized that the assailants drove up in a vehicle, fired, and sped off, leaving little evidence such as shell casings, which likely dropped onto their truck.

Internal documents show Army investigators did find fresh tire tracks nearby, but rejected Nease’s theory, because of Himelright’s statements about the ICDC troops. “They were the only ones around prior to me hearing gunfire,” Himelright told CID. He added that the interpreter told him the ICDC had shot him.

On the CID report, the cause of death for both McCaffrey and Tyson is listed as “murder.”

Investigation of killings stalls

Thirteen months after the shootings, the Army captured a suspect without incident, said Lt. Col. Keir-Kevin Curry, spokesman for detainee operations in Iraq. Another was killed in a firefight with Americans, Nease was told. The military said it could not confirm that.

Curry declined to identify the suspect in custody, citing Army policies in keeping with the Geneva Conventions, which bar the use of detainees “for propaganda or other prohibited purposes.”

Supporting the murder charge, military lawyers said, were ballistics tests that allegedly linked the suspect to the AK-47 used in the attack. U.S. forces had seized the weapon from a different Iraqi, and an Army criminal lab in Forest Park, Ga., said it tied bullets removed from McCaffrey’s chest to that same AK-47. An ICDC ledger says the suspect was issued that weapon on the day of the killings, according to military documents. Fingerprint tests on the weapon were inconclusive.

There was not enough evidence to tie a particular suspect to the shootings of Tyson or Himelright, military lawyers concluded. Chris Grey, CID spokesman, said “no other positive forensic links made with any other weapons and victims” were confirmed.

But even the case of McCaffrey, who was promoted posthumously to sergeant, now seems to have sputtered.

The interpreter who witnessed the slayings disappeared after saying he’d been threatened by one of the shooters. Investigators have not tracked him down.

Other witnesses have also vanished and are being sought, Curry said in an e-mail to The Associated Press. “It is anticipated their testimony would be critical in a criminal prosecution.”

Although there was not yet enough evidence to go to trial, according to a Navy officer who serves as military legal adviser in the McCaffrey case, the case remains on the Long Term Threat List, “a compilation of exceptionally important cases which require further intensive investigative attention.”

The case underscores the enormous challenges of prosecuting a murder case in the Central Criminal Court of Iraq, which has jurisdiction over terrorist and insurgent crimes.

The difficulty of meshing different languages, cultures and legal systems is magnified by the crushing case load, said Michael Newton, a former State Department war crimes lawyer who recently returned from his fourth trip to Iraq, where he has served as a legal adviser to Iraqi judges. Often, evidence must be gathered from Iraqi and American military sources who have since deployed elsewhere, he said.

“The reality is they’re overwhelmed,” said Newton, now a professor at the Vanderbilt University Law School. “What they’ve tended to do is take cases that are relatively clean, evidentiary-wise. The evidence is available, they know they can use it, and they get them done.”

In just one case has an Iraqi soldier been convicted of murdering a U.S. serviceman, Curry said. Amir Alawi Owaid was convicted Aug. 30 of fatally shooting Marine Pfc. Brian M. Taylor and wounding another Marine.

Owaid was sentenced to life in prison.