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Application of FOIA in Army Case Leaves Much to be Desired

Army soldiers seen through night vision at a base in Kandahar, Afghanistan
(Photo: Spc. Daniel P. Shook / U.S. Army)

In March 2012, Army Staff Sergeant Robert Bales snuck off his base near Kandahar, Afghanistan, and massacred 16 civilians in the dead of night. Three years later, the Department of Defense continues to deny Freedom of Information Act (FOIA) requests for an internal report on leadership in Bales’ unit. In June, the Military Reporters & Editors (MRE) Association sent a letter to Secretary of the Army John McHugh urging him to intervene. A series of leadership breakdowns had to occur in order for Bales to commit these crimes—the public has a right to know what those breakdowns were, and to hold the military accountable so that they don’t happen again. It is imperative that Secretary McHugh release the requested leadership report in response to MRE’s letter.

Reporting on the Bales case, based on other FOIA requests, has led to changes in Army Post Traumatic Stress Disorder treatment and has shed light on the use of dangerous stimulants by soldiers in the field.

Army Staff Sergeant Robert Bales
Army Staff Sergeant Robert Bales in 2011 (Photo: Specialist Ryan Hallock / U.S. Army)

According to documents released by the Army Criminal Investigation Command (CID), Bales had a reputation among junior enlisted men as being “crazy,” but was regarded as competent by superior officers, and passed all of his pre-deployment PTSD examinations. Documents responsive to FOIA requests for medical records showed that Bales had stanozolol in his system at the time of the killings, a steroid that has been known to make users short-tempered.

However, one crucial document remains hidden: a report on leadership in Bales’ unit. The report was commissioned immediately after the killings by General John Allen, then-commander of NATO forces in Afghanistan, to understand if Bales’ superiors could have done anything to prevent the killings. Requests for the report have been delayed and rejected through a series of administrative procedures and questionable applications of FOIA exemptions.

Earlier this year, Investigative Reporters and Editors (IRE) nominated the Department of Defense for satirical anti-transparency recognition over its handling of the FOIA request for the leadership report in question. As the nomination explains, News Tribune reporter “[Adam] Ashton’s first FOIA for that report was denied in January 2014 on grounds that it might impact Bales’ clemency proceedings—which is not a FOIA exemption.”

Man in a military uniform removing folders from a filing cabinet
(Photo: Staff Sgt. Blair Heusdens / U.S. Army)

Ashton then filed a second FOIA after he obtained new information from CID. That FOIA was sent from Central Command (CENTCOM) to the Department of the Army, and then to Third Army, before being sent back to CENTCOM. “It was denied in April on the same grounds as the first request, despite the fact that clemency had already been denied.” An appeal on the denial currently sits buried at number 235 out of 340 in CENTCOM’s FOIA backlog.

CENTCOM’s handling of this request is abnormal for a number of reasons. First, it improperly applies exemption 7(b). This exemption was intended to protect information that would deprive a person of a fair trial or an impartial adjudication, not clemency proceedings. Even then, it is only to be applied when adjudication is imminent and where the material disclosed would seriously interfere with the fairness of those proceedings. This clearly does not apply here, and at the most, personal or incriminating information about Bales could be redacted from the responsive document. Second, in another recent Afghanistan war crimes case, the command climate report was released in response to a FOIA request soon after trial and well before clemency hearings. Third, according to a column by The News Tribune’s executive editor, CENTCOM’s own FOIA and public affairs officers have tried to expedite the report's release. Finally, and most importantly, Americans are entitled to a complete accounting of war crimes committed by our military.

Bales has already had his day in court. Withholding this report, which could shed valuable light on the leadership and professional climate that might have contributed to heinous acts by someone in our military, is irresponsible and only serves to hinder accountability and any changes that may be needed. We urge Secretary McHugh to release the leadership report as soon as possible.

By: Jacob Marx
Researcher, POGO

Photograph of Jacob Marx At the time of publication Jacob Marx was a researcher for POGO.

By: Elizabeth "Liz" Hempowicz
Policy Counsel, POGO

Photograph of Elizabeth Liz Hempowicz is Policy Counsel for the Project On Government Oversight.

Topics: Government Accountability, Open Government

Related Content: Government Secrecy, FOIA

Authors: Elizabeth "Liz" Hempowicz, Jacob Marx

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