Tag Archives: To Whom It May Concern

Another Soldier Tries to Clear His Name Following Conviction

Three years ago this month, I was contacted for the first time by Teresa McQueen, a woman whose son, Todd Knight — then a 25-year-old Army Sergeant stationed in Germany — had been accused of raping a 19-year-old woman. Today, I offer a long-overdue update about that case and issue a call to action.

This photo shows Todd Knight in his Army uniform prior to being accused of rape and convicted on a lesser charge.

This photo shows Todd Knight in his Army uniform prior to being accused of rape and convicted on a lesser charge.

First, a review of some case details is in order.

On March 7, 2013, I published an article that included snippets about several cases involving military men accused of sex crimes. Below is the text of the portion of the aforementioned article that pertained to Knight’s case:

While stationed in Germany, Army Sergeant Todd Knight befriended a young German woman while out with friends the night of Jan. 27, 2012. At some point during the evening, he and three other Soldiers — one of whom he considered a friend — accompanied the woman and one of her friends to the home where the sister of one of the women — but not the accuser — lived.

What actually happened at the home, however, remains a matter of much debate as conflicting stories were given to German authorities. Two things, however, stand without dispute: Sergeant Knight was arrested by German authorities the next day, accused of rape, and those same German authorities eventually decided not to pursue the case.

U.S. military officials, on the other hand, decided to move forward with charges of their own despite the fact that the alleged victim testified during the Article 32 hearing that she couldn’t remember what had happened that night and despite the aforementioned conflicting statements.

On Dec. 18, 2012, Sergeant Knight was found guilty of sexual assault, sentenced to one year behind bars and busted to E-1, the lowest enlisted rank and a rank he would hold until the end of his sentence when he would be dishonorably discharged from the Army.

Three months after Sergeant Knight’s conviction, people continued to show interest in proving the 25-year-old Soldier’s innocence. One who showed interest was the German woman at whose home the alleged rape occurred.

In a “To Whom It May Concern” letter dated February 28, 2013, she wrote that she had known Sergeant Knight for more than two years, and then she dropped a bombshell, explaining that the sergeant’s unemployed accuser “told me SGT Knight did not rape her, and that she only said that because she didn’t want her boyfriend at that time to find out she was cheating on him.”

Unfortunately, communications with Knight’s family ended a few months after the trial — they were, to say the least, distraught — and resulted in me not receiving copies of several documents, including the Record of Trial. Things changed, however, a few days ago, after I came across Knight’s case among my military justice files and decided to contact his mother again.

In response, she sent me an electronic copy of the ROT as well as several documents related to his appeal.

In the ROT, I learned several Soldiers selected to serve on the court-martial panel (i.e., the military equivalent of a jury) were in the rating chain of either the convening authority (i.e., the senior officer ordering a court-martial be held) or another panel member. Any chance of undue command influence as a result? Damn right!

I learned Sgt. 1st Class Gary G. Emmert told the court he had completed the 80 hours of Army Sexual Harassment/Assault Response and Prevention (SHARP) training necessary to serve as a sexual assault victim advocate and was, in fact, serving as the victim advocate for his unit at the time he was tasked to serve as a panel member.

I learned LTC  John D. Koch told the court he had served on “multiple court-martials before” and, while that’s not unusual for a line officer of his rank, something else he said caught my attention. When asked if he had ever served on a panel adjudicating a sexual assault case, he answered, “Yes.” Asked how many times he had served on such a panel, he answered, “I believe twice. I’ve lost count of how many were there.”

Colonel Koch also confirmed that he had received “a sexual assault special briefing” for Army leaders while stationed at Vicenza, Italy, earlier the same year. During that special briefing, he and fellow trainees watched a 20-minute clip from “The Invisible War.” the Oscar-nominated documentary in which a handful of cases purported to be representative of the so-called sexual assault “epidemic” in the military are highlighted while solid facts, as highlighted in my recent article about lies, damned lies and statistics, are largely excluded.

Could forcing Soldiers to watch that film be construed as exerting undue command influence via brainwashing? I think so. But I digress.

Because the ROT contains 663 pages, I’ll use a 15-page document — the brief filed April 9, 2014, on Knight’s behalf with the Army Court of Criminal Appeals by Frank Spinner, his Colorado Springs-based civilian defense attorney, and Capt. Brian Sullivan, his military defense attorney — to help explain why the case against Knight was so weak. Below is the text of that document’s “Argument” section with boldface type added for emphasis by yours truly and the names of the accuser and the author of the aforementioned “To Whom It May Concern” letter redacted:

The government failed to prove beyond a reasonable doubt that SGT Knight engaged in an act of sexual intercourse with (accuser) while she was substantially incapacitated and that SGT Knight was not under a mistaken belief that she consented to sexual intercourse. The case is built on (accuser’s) credibility regarding what happened when she was alone with SGT Knight in the apartment bathroom.

The defense portrayed (accuser) as a woman who flirted with SGT Knight through the course of the social evening they experienced with mutual friends, but who turned on him after they consensually engaged in sexual intercourse and she learned he had a girlfriend. She did not back down from her claim, because she saw an opportunity to financially benefit from a victim compensation opportunity.

The government countered by claiming that SGT Knight took advantage of her because of the amount of her alcohol consumption, which left her vulnerable and impaired to the degree that she was unable to consent.

The government presented testimony from German police and Army forensic experts addressing chains of custody and laboratory analysis of evidence. Their testimony, however, was not helpful in determining the central issue of consent. They merely confirmed that a complaint was made and investigated, following normal protocols, even though the investigation was somewhat limited in scope.

SGT Knight did not testify, instead relying on the requirement for the government to prove their case beyond a reasonable doubt.

To the extent that accuser testified, she acknowledged that she had a poor, arguably selective, memory about what happened that night. No witness saw her pass out, nor was there any evidence she consumed any more alcohol than anyone else who socialized with them that evening. The accuser, an experienced drinker, who admitted to getting drunk on prior occasions, confirmed she had no more to drink that night than what is normal for her.

This begs the question: what evidence supports her claim that she was substantially incapacitated? There is no evidence other than that she consumed six drinks over a period of four hours. This amount of alcohol consumption, standing alone, does not prove substantial incapacitation beyond a reasonable doubt. The government did not present any evidence that accuser was drugged, even though she claimed that she may have been drugged.

Then there is the issue of whether the government disproved the mistake of fact affirmative defense beyond a reasonable doubt. When the testimony of the witness is combined with the photographs of SGT Knight and accuser, the evidence clearly supports a mistake of fact defense.

The witness’ testimony deserves closer scrutiny. The witness observed the interaction between accuser and SGT Knight at the critical point where SGT Knight went into the bathroom at her apartment. She also talked to accuser right after the alleged rape. Witness appears to have inferred from what she heard and observed that accuser pulled SGT Knight in the bathroom and rubbed her back and, afterwards, when telling witness that she had sex with SGT Knight, wanted to communicate with him again. It was at this point witness informed accuser that SGT Knight would not respond because he had a girlfriend. Thus, a potential motive for the claim was born.

One possible explanation for the court members’ decision involves the face that accuser vomited a couple of times that night. On the one hand, it could be argued that no one would have sex with another person in that condition. On the other hand, in the context of individuals drinking and flirting with each other, why would this face necessarily keep two people from having sex? There is not way this question can be easily answered. The real problem is whether any adverse inference that flows from this fact against SGT Knight should be drawn beyond a reasonable doubt. There is no empirical basis for drawing such an inference.

In the absence of any objective corroboration of accuser’s claim that she was sexually assaulted, what evidence makes her believable beyond a reasonable doubt? There is none. In fact, a number of considerations raise serious questions about her credibility. Why did she use a translator when she testified? Accuser was born to a U.S. Army soldier, and who was married to a U.S. Army soldier at the time of trial, simply did not need that assistance.

Then there is the question regarding whether accuser may have been drugged. Although she acknowledged that this is what she originally believed, by the time of trial, her belief had changed because there was no evidence to support this belief. At trial, her story became that in pretrial interviews the prosecutors helped her see how drunk she was. This is inconsistent, however, with the amount of alcohol this experienced drinker consumed that night by her own admission.

Finally, was there some financial motive behind her claim? She retained an attorney shortly after she made her initial complaint, for the purpose of seeking victim compensation from the Army.

Just as experts could not look at the physical evidence and determine whether they were caused by assaultive behavior, this Court cannot say beyond a reasonable doubt that accuser told the truth or that SGT Knight did not have a mistaken belief that she consented to sexual intercourse.

Perhaps as damning as the claim by the author of the “To Whom It May Concern” letter that the accuser had told her she had not been raped, is the fact the accuser received a payment from the U.S. Army as compensation for pain and suffering stemming from a rape that did not happen. While I’ve been told she received a payment in the neighborhood of $20,000, I’m attempting to obtain a copy of any official documentation that reveals the exact amount of money she received. I will share that amount in an update as soon as I get it.

Incredibly, the ACCA denied Knight’s appeal in a decision announced Jan. 15, 2015. Now, aside from a presidential pardon, Knight has only one level of appeal remaining — the Court of Appeals for the Armed Forces.

Stay tuned for updates on this case — incredibly similar to the one I chronicled in my first nonfiction book, Three Days In August — and other military justice cases I’m following.

For links to other articles of interest as well as photos and commentary, join me on Facebook and Twitter.  Please show your support by buying my books and encouraging your friends and loved ones to do the same.  To learn how to order signed copies, click here. Thanks in advance!

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Investigation Reveals Never-Before-Published Truths About Early Days of ‘Global War on Terror’ at Guantanamo Bay

To mark the upcoming 13th anniversary of the attacks of Sept. 11, 2001, I’ve chosen to share an excerpt from my second nonfiction book, The Clapper Memo. Appearing below and slightly modified for stand-alone publication, it reveals never-before-published details about what took place at Guantanamo Bay during the early years of the so-called “Global War On Terror” that followed:

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Within hours of the attacks that left thousands of Americans dead and injured and exposed vulnerabilities in our nation’s defenses, President George W. Bush tried to calm fears and assure Americans – including many who wanted to exact some form of retaliation against those they believed were responsible for the attacks — that everything was under control September 11, 2001.

“America was targeted for attack because we’re the brightest beacon for freedom and opportunity in the world,” he told Americans during a nationally televised speech the night of the attacks. “And no one will keep that light from shining.”

He used a more-ominous tone to end his remarks.

“The search is underway for those who are behind these evil acts,” he said. “I’ve directed the full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.”

Two days later, President Bush spoke again — this time before a joint session of Congress.

Among other things, he thanked lawmakers for “delivering $40 billion to rebuild our communities and meet the needs of our military.”

It went without saying that our nation was about to enter a new era of warfare unlike any Americans had seen before. For nearly nine years, it would be referred to as the “Global War On Terror.”

On October 7, 2001, at 12:30 p.m. Eastern Daylight Time, the United States and Great Britain began using air, land, and sea assets to launch bombs and cruise missiles against Taliban positions across Afghanistan. The first official GWOT campaign, Operation Enduring Freedom, had begun, and Americans were now fighting in unfamiliar territory — in places with names like Bagram, Jalalabad, and Kandahar.

Three months into the war and thousands of miles from the rugged, mountainous terrain where Soviet forces had fought unsuccessfully against Afghan resistance forces (a.k.a., “Mujahideen”) a quarter-century earlier, the first 20 of more than 700 detainees (a.k.a., “enemy combatants” or “prisoners of war”) arrived at the U.S. Naval Station Guantanamo (a.k.a., “GITMO”).

At the little-talked-about facility where the United States has maintained a military presence since 1903, the detainees would be subjected to a variety of interrogation methods employed by U.S. military and intelligence officials seeking information that might help the U.S.-led war effort succeed.

News reports about those interrogation methods — both real and imagined — would make the name of the U.S. outpost on the southeast tip of Cuba familiar to people worldwide.

One man with more than a passing interest in what detainees might reveal to interrogators was Army Major General Geoffrey D. Miller. Ten months after the first detainee arrived at GITMO, he assumed command of Joint Task Force Guantanamo (JTF-GTMO).

As head of the joint (a.k.a., “purple suit”) organization comprised of people from a variety of military agencies, he was responsible for everything having to do with the detainees, including the arduous task of interrogating each of them.

Despite the seemingly urgent mission of learning as much as possible from the detainees, General Miller found it difficult during his first year on island to obtain polygraph support for his mission, according to “Charlie.”

Not his real name, which I’m withholding for security reasons, Charlie served as operations officer (i.e., second in charge) of the Defense Intelligence Agency’s Interrogation Control Element (ICE) at GITMO from early 2003 to mid-2004, longer than any officer preceding him in that post.

Well after his departure from Cuba, Charlie explained in a “To Whom It May Concern” letter, dated October 5, 2005, that polygraphers had repeatedly cited “numerous worldwide commitments” in their negative responses to General Miller’s requests for assistance. In addition, he wrote, “We were not a priority.” NOTE: I was able to obtain a copy of Charlie’s letter on the condition I not reveal his real name or the name of the person who provided me the copy. Though the author listed several individuals by name in his letter, I opted to remove most of those names due to concerns about their personal safety. Only the general’s name remains due to the fact that his position as commander of Joint Task Force-Guantanamo received much publicity.

Charlie went on to explain how polygraphers began to show interest — but only after his proposal to move forward with Computer Voice Stress Analyzer® Proof of Principle (PoP) testing at GITMO received approval from the ICE chief, a colonel.

In addition, he wrote about some of the problems GITMO interrogators had experienced with the polygraph. His words revealed he did not appear to be constrained by the boundaries of official Army thinking as he shared details about his 16-month stay on island, which included being there “when the polygraph was first employed on a more permanent basis.”

“We had to close a couple of our interrogation booths so that they could be dedicated to polygraphers and their equipment,” Charlie wrote before adding a bit about what he knew about both polygraph and CVSA® from previous observation and training.

“The primary goal of any polygraph or CVSA examination is to facilitate voluntary admissions and confessions from the subject,” he explained before noting, “Voluntary admissions and confessions are most likely to be truthful.”

Charlie continued his letter by explaining that a conversation takes place during the pre-test phase to convince the subject “if he is deceptive in his answers, he will be found out” and “he must clear his mind of anything that may be bothering him that would cause a response to appear deceptive during the examination” in order to successfully “pass” the examination.

In other words, Charlie explained, “He must ‘come clean’ with the examiner.”

“During the pretest phase, the examiner can also gather information and ‘tailor’ questions designed to gather additional information from the subject at the conclusion of the examination,” Charlie wrote.

Deeper into his letter, Charlie highlighted several distinct advantages CVSA® has over the polygraph.

He explained that CVSA® technology is more portable, less intrusive (microphone as opposed to galvanic, heart, blood pressure, and breathing monitors) and requires less training on the part of the examiners.

Further, he wrote, the CVSA® test is easier to explain to the subject before it is administered, test results are easier to explain to the subject, and charts for both control questions and relevant questions can be shown and explained. That, in turn, makes post-test questioning much easier.

Charlie pointed out that there are no “inconclusive” test results with CVSA® and that examiners can identify the questions to which the subject’s answers appeared to show deception — an aspect that helps to focus additional questions and subsequent interrogations.

Conversely, Charlie noted that polygraphers would not identify the questions about which interrogation subjects appeared to be deceptive. Instead, they would only say the test showed “no deception indicated,” “deception indicated” or “inconclusive.”

Charlie used some pointed language to close his letter:

“My opinion based upon my observation is that CVSA is superior to the polygraph when used as a tool in the interrogation process. Consequently, I conclude that those who wish to remove CVSA from the ‘interrogator’s tool box’ are more interested in protecting their turf than they are in gathering intelligence that protects the American people.”

Beyond Charlie’s letter, the content of an After Action Review (AAR) written by another senior interrogation official at GITMO — a man I’ll call “Hank” — paints a clear picture of the CVSA® PoP testing results. As was the case with Charlie’s letter, I was able to obtain a copy of the AAR written by Hank from a confidential source promised anonymity.

Corroborating timelines and other details from Charlie’s letter, Hank explained that CVSA® PoP testing began August 18, 2003, with seven GITMO interrogators being trained for six days in how to conduct exams using CVSA®. Equipment and training were provided by NITV.

Eight days after the training began, GITMO interrogators began using CVSA® as a tool to assist in targeting future interrogation efforts, he continued. Their efforts at the facility — then home to more than 600 detainees from Afghanistan and Iraq as well as several other Middle Eastern and Southwest Asian countries — continued for 30 days, through September 26, 2003.

Hank explained that it became obvious during the test period that CVSA® “would become an invaluable tool for focusing the efforts of intelligence collection.”

By virtue of using CVSA®, he continued, “interrogations could be focused on areas where deception is indicated, versus wasting time and energy on avenues of exploitation that would have little to no value. The outcome of the 30 day test period has shown outstanding results, and has generated a high degree of interest and satisfaction among the intelligence community.”

In the remainder of the document, Hank explained that the seven trained interrogators conducted 45 separate examinations on 33 different examinees. The examinations were conducted in English, Arabic, Pashtu, and Spanish on examinees — all male — who ranged in age from 17 to 65. Language was not a barrier.

Interestingly, Hank noted that, while the majority of the exams were conducted overtly, nine were conducted covertly (i.e., recorded for later analysis or having the computer located in an area not visible to examinee).

Six examinations were scored as “No Deception Indicated”; 38 as “Deception Indicated”; and one as “unable to be scored due to recording difficulties experienced with the recording media” — a non-CVSA® technical glitch, Hank explained. When it became obvious that CVSA® PoP testing had yielded stellar results, GITMO officials stopped the testing halfway into the planned 60-day test period. They had seen enough.

Early the next year, National Institute for Truth Verification officials were contacted by DIA’s chief interrogator on island — a man I’ll call “Ronald” — who proposed the company enter into a two-year contract to provide the agency a subject-matter expert for the purpose of training additional interrogators at GITMO and providing other expertise as needed. A contract was signed and, by mid-2004, the company had one of its senior instructors working on the island.

During the next 12 months, according to NITV officials, CVSA® was used at GITMO more than 90 times and achieved a success rate — defined as developing new, previously- unknown intelligence which was independently confirmed or confirmed existing information that otherwise could not be verified — of 92 percent despite the fact most exams were conducted using interpreters.

That level of success stood in stark contrast to the “inconclusive” findings that had resulted from 20 percent of the polygraph exams administered previously at GITMO.

Despite the apparent effectiveness of CVSA vs. polygraph, CVSA was effectively “killed” at GITMO while only halfway through with the two-year contract with the DIA. Likewise, the DIA’s man in charge of the ICE at GITMO was reassigned elsewhere, and the polygraph became the only tool interrogators were allowed to use at the detention facility.

To learn more about The Clapper Memo and read some of the endorsements it has received, click here. To order a copy of the book, click here.

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