Did Afghan troops manipulate the U.S. into bombing Doctors Without Borders hospital?

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• HARI SREENIVASAN:

  In October 2015 an American AC-130 gunship pummeled the Doctors Without Borders hospital in Kunduz, Afghanistan, hitting what the crew believed to be a Taliban fighting position.

  The plane rained artillery and other fire on the facility, killing 42 people, despite frantic calls from the group, known by its French acronym, MSF, to stop the attack.

  Last month, an Army investigation found there was no intent by the Americans to destroy the hospital, either by the air crew or the American special forces on the ground who were calling in for fire. The probe found that it was a targeting error born of confusion and miscommunication in the fog of war.

  Sixteen soldiers were reprimanded, but no criminal charges were filed.

  But a new report in "The New York Times" magazine by Matthieu Aikins of the Nation Institute casts doubt on the motivations of the Afghan troops who told the Americans that the hospital was a Taliban stronghold.

  I spoke with Aikins yesterday and with two former military attorneys.

  I began by asking the reporter what may have motivated this attack.

• MATTHIEU AIKINS, The Nation Institute:

  From the extensive reporting that we did starting from November, as well as documents that are buried in the military's redacted report, there's evidence that Afghan forces may have provided an exact description that matched the hospital as a target, meaning that they intentionally targeted the hospital, leading to U.S. forces perhaps unintentionally striking the hospital as a result of that description.

• HARI SREENIVASAN:

  So, why would Afghan forces want to strike a hospital?

• MATTHIEU AIKINS:

  There's been a long-simmering tension between MSF and the Afghan government, basically a collision between two different world views, MSF, which sees itself as a neutral humanitarian medical organization that treats all sides to a conflict, regardless of who they are, and Afghan forces that have resented MSF treating what it views as its enemy.

• HARI SREENIVASAN:

  So is there a widespread mistrust?

• MATTHIEU AIKINS:

  What we found, you know, when I went to Kunduz, was a resentment and a mistrust of MSF on the part of the Afghan forces. They told me they thought that MSF was supporting the Taliban.

  And this, you know, later led to what turned out to be false beliefs that MSF actually had been taken over and there were Taliban leadership inside the hospital at the time it was struck.

• HARI SREENIVASAN:

  You have read the official military account. You have done your own reporting. Are there discrepancies?

• MATTHIEU AIKINS:

  I think that what's unexplained in the military's report, what they elide in the report is that the AC-130, the gunship that struck the hospital, after its navigation systems failed, it then relied on a visual description of the target that was given by the special forces ground commander.

  And that description, as the military admits, came from the Afghan forces. The military basically asked the Afghan forces what they wanted to hit.

  And while the coordinates for the other target, you know, the intelligence headquarters, were passed on, those were correct coordinates, they were passed on much earlier in the evening, around 6:00 p.m., according to the military, so that 1:00 a.m., an hour before the strike, when the military goes back, and there is some confusion because of this failure of the navigation system, and they ask the Afghan forces, what should we be hitting here, the Afghan forces pass up a description that distinctly resembled the MSF hospital and in no way resembled the intelligence headquarters.

• HARI SREENIVASAN:

  Now, according to the MSF, they call it — they describe it as an uncontrolled operation in a crowded area. Is there evidence of that?

• MATTHIEU AIKINS:

  Yes, I think this is a very crowded city. It's Afghanistan's fifth largest city.

  And the fact that they're blindly striking essentially a target in a crowded area raises questions of recklessness and negligence. But we actually go further than that and suggest that the Afghan forces may have intended to deliberately target the hospital.

• HARI SREENIVASAN:

  You also cite different correspondences that members of the military who were involved in the operation had with members of Congress or others. What was their view on what was happening at the time, and did that change after the fact?

• MATTHIEU AIKINS:

  Well, absolutely.

  We were provided with an e-mail from one of the special forces troopers on the ground who said that, you know, there were Taliban inside. They had kidnapped the doctors, and they had taken it over, basically suggesting that the American forces on the ground had come to believe the false reports that, you know, Afghan forces told me they believed, that they provided to American forces, that the hospital had been taken over by the Taliban, which is very troubling.

  And, again, it's something that is not really contained within the military's report or addressed by their investigation.

• HARI SREENIVASAN:

  One of the members of the MSF told you at the end of your story about the possibility of ever working in a place where so many U.N. Security Council members are involved in active conflicts.

• MATTHIEU AIKINS:

  Well, you know, this has been a trend around the world. You have had strikes against MSF facilities in Syria, in Yemen, in Sudan, and in other areas.

  The fact that MSF is being targeted is an extremely worrying development and one that, you know, has been taken to the Security Council.

• HARI SREENIVASAN:

  Matthieu Aikins joining us from Athens, thanks so much.

• MATTHIEU AIKINS:

  My pleasure.

• HARI SREENIVASAN:

  We take a deeper look at the U.S. military's investigation of the attack on the Doctors Without Borders hospital in Kunduz and whether the probe should have gone further with retired Marine Corps Lieutenant Colonel Gary Solis. He served as a company commander in Vietnam and later as a judge advocate and military judge during his 26-year career. He now teaches the law of armed conflict at Georgetown University.

  And retired Lieutenant Colonel Jeffrey Addicott spent 20 years as judge advocate in the Army and, for part of that time, served as a senior legal adviser to special forces. He is the director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio.

  Gary Solis, I want to start with you.

  The military admits a series of cascading errors that led to this tragedy. What was the most egregious to you?

  LT. COL. GARY SOLIS (RET.), Georgetown University: To me, the most egregious was that the pilot was unsure of his target for an hour as he circled overhead, and that he later fired, despite not — apparently not being all that sure of his target.

  Even two minutes after he initiated the first volley, he radioed JTAC on the ground asking for confirmation that he had hit the target. He still was unsure that he had hit the correct target, and, to me, that's the most egregious of a series of errors that were made.

• HARI SREENIVASAN:

  Jeffrey Addicott, your response?

  LT. COL. JEFFREY ADDICOTT (RET.), St. Mary's University School of Law: It's 2:00 in the morning, the fog of war.

  Again, the report found that there was no intentional conduct on the part of the American forces. So, yes, it was a tragedy. It's a horrible tragedy, and it shouldn't have happened, but it did happen.

  Our toolbox is not Anglo-Saxon criminal law. It's the law of war that we look at when we judge these types of things.

• HARI SREENIVASAN:

  Jeffrey Addicott, staying with you for a second, there seems to be a distinction between intent and negligence. Just because you are not intending to do something, does that let you off the hook from being negligent in trying to do your best not to get something wrong?

• LT. COL. JEFFREY ADDICOTT:

  Well, it doesn't let you off the hook, but we're talking about whether there's a grave breach of the law of war, which has a different set of requirement than, for example, other breaches of the law of war, simple breaches.

  I don't see a gray breach of the law of war, primarily because, yes, mistakes were made, communication breakdown. And if it's true that we had faulty intelligence from the Afghans, then the investigation should be reopened. But that still wouldn't, you know, alleviate the report here that we have indicating no intent on the part of the Americans to target this particular facility.

• HARI SREENIVASAN:

  Gary Solis, I saw you shaking your head a couple of times there. If you were prosecuting this, how would you do it?

• LT. COL. GARY SOLIS:

  There is negligence, and then there is culpable negligence.

  In other words, if the negligence is so significant that it becomes more than mere simple negligence, then you have a prosecutable case. But, to my mind, the fact that he fired anyway, despite the fact that he had lost his guidance system, that his aircraft navigation system had previously gone down, that his video antenna was gone, that he was unsure of the target, those things combined, to me, raise a colorable case of culpable negligence, which in my mind should have been decided by a military jury.

• HARI SREENIVASAN:

  And Jeffrey Addicott, why not a military jury? Why not a courts-martial, instead of the legal process that took place?

• LT. COL. JEFFREY ADDICOTT:

  I don't think it's necessary.

  We had three generals from outside the theater come in. We had interviews by 65 witnesses, 3,000 pages of investigation. Lots of judge advocates higher in rank than Gary and myself looked this thing over, mulled it over. And I think they came up with the right conclusion, no intent and, therefore, you know they decided to handle it at a lower level, which is in accordance with the law of war.

  I'm not going to second-guess them.

• HARI SREENIVASAN:

  Gary Solis, did this investigation do the best that it could? The MSF says, listen, we wanted an outside investigation. It doesn't make sense for the very people who committed the crime to be investigating it.

• LT. COL. GARY SOLIS:

  I don't argue that it didn't do the best — the investigator didn't do the best that he could.

  I simply disagree with his conclusion. And that is that, in this situation, given the circumstances of which the aircraft commander and his sensor operator were aware, they went ahead and fired on a target of which they were not sure.

• HARI SREENIVASAN:

  Jeffrey Addicott, why not? Why not have a jury take a look at this?

• LT. COL. JEFFREY ADDICOTT:

  The moment of absolute certainty in combat never arises.

  If we're going to wait and hold that standard to soldiers, we're just going to sit in a foxhole and never shoot, because I'm not quite sure that I have got the right thing. The law of war doesn't require that. And if it did, we might as well just pack our bags and leave now.

• HARI SREENIVASAN:

  Gary Solis, what about that idea, that, basically, that, unfortunately, we can't have a judge authorize every bullet fired?

• LT. COL. GARY SOLIS:

  I have been in combat. I have called in supporting fires from AC-130s.

  And you're never positive, but the law doesn't require that you be positive. And it does allow for negligence, in which case, if it was simple negligence, I would agree. But I simply believe that, given the series of mechanical failures in the aircraft, and the indecision of the pilot even before, even after he fired indicate culpable negligence.

• LT. COL. JEFFREY ADDICOTT:

  I would agree if the building was marked, but the building wasn't marked. These people didn't mark that facility, and we can't expect these people to do the Monday-morning quarterback, look over their shoulder, be hypersensitive about it.

  Their obligation was to mark the building. I'm using my military language, but there was no marks, no red crescent on there. We can't hold our soldiers to this supercilious standard.

• HARI SREENIVASAN:

  Jeffrey Addicott, the MSF is going to say, listen, or they have said, we gave you, the military, the GPS coordinates. We gave it to you a few days before. We gave it to you just a couple of days before. What else could we possibly do? And we were actually flying a flag?

  Yes, it was 2:00 in the morning. And we're the only ones with the lights on in a city that has no power. What else could the MSF have done to protect themselves in this case?

• LT. COL. JEFFREY ADDICOTT:

  Have a reflective device that's on the roof that has the red crescent onto it. I mean, they could do that. They didn't do it.

• HARI SREENIVASAN:

  And, Gary Solis, what about the idea that we heard from the reporter that there might be ape different motive behind this, that the Afghan forces that were there have this kind of mistrust, and they might think that, hey, you know what, this is a place where they actually are harboring Taliban leadership, and this should be a fair place for us to go after?

• LT. COL. GARY SOLIS:

  I think the report by Matthieu Aikins, if it proves to be true, could provide evidence that shows that the indecision was mere negligence. In other words, it was excusable, given the circumstances.

  But, so far, what we know is what he did and what he reported — that he, the pilot, reported in the investigation, which, of course, I have not read; 3,000-pages long, I don't know if it's even been released in full to the public.

  But, yes, I think that that report could provide evidence on behalf of the pilot and the sensor operator on the plane.

• HARI SREENIVASAN:

  Jeffrey Addicott, what about that?

• LT. COL. JEFFREY ADDICOTT:

  Real-time information on the ground that this is the target, I mean, obviously, the person that is providing that false information needs to be prosecuted.

  But that overrides. Then the pilot could say, well, I have certain information from the ground, and I'm assuming that they're our allies, and I'm assuming it's correct information. So I'm going to go ahead and target and fire.

• HARI SREENIVASAN:

  All right, Jeffrey Addicott, Gary Solis, thank you, both.

• LT. COL. JEFFREY ADDICOTT:

  Thank you.

• LT. COL. GARY SOLIS:

  Thank you.