The Tender Soldier: A True Story of War and Sacrifice

by Gezari, Vanessa M.

  The soldiers didn’t know if he was nuts or what: “We had to sit him down and pull security on him because we didn’t know if he was crazy or not,” a soldier told Army investigators. Another soldier recalled: “He sat quietly, Indian style against the wall, with someone watching him. At one point he got up to walk around and the individual watching him asked him to sit down. Mr. [Ayala] asked if the individual was there to watch him. The individual asked what Mr. [Ayala] thought, and he said yeah and sat down.”

  ‘Why you killed that person?’: Details in this paragraph are from Jack Bauer, interview by author, September 23, 2010.

  ‘Everything’s going to be okay,’ one told him: Ayala, interview by author, August 19, 2009.

  As he watched armed escorts lead Ayala off: Ayala looked “bewildered,” Warren told me. “His face, the way he moved. He was almost in a daze.” Mike Warren, interview by author, March 20, 2009.

  They took Ayala for a physical exam: Ayala, August 19, 2009, and soldiers’ statements to Army investigators.

  They . . . studiously avoided discussing what had happened that day: “While I was pulling guard [Mr. Ayala] didn’t really talk about what happened much, but when he did I would quickly change the subject to avoid Depressing [sic] or distressing him,” one soldier told Army investigators. “Other than that, we only had very few other conversations consisting of football and women and that’s pretty much it.”

  ‘I was thinking I saw Paula and thought fuck this guy’: Ayala, statement to Army investigators, November 4, 2008. On the way to the detention facility, one soldier recalled, Ayala “asked numerous times why he was being held against his will. He was also asking to speak to a lawyer, his boss, or someone in charge.” Mike Warren, Ayala’s friend and team leader, didn’t help the situation. When an Army investigator advised him that Ayala was being held pending an investigation of Salam’s death, Warren “said if Mr. [Ayala] had not been detained . . . he would have flown Mr. [Ayala] out of the country. After a brief pause, Mr. [Warren] said he was joking.”

  After three days, they cuffed Ayala: Many details about Ayala’s detention here and below are from Ayala, interview by author, August 19, 2009.

  They had been sent to do jobs they hadn’t been trained to do: “Just seeing the morale of the troops out there, not knowing, ‘What are we here for? We can’t go out and fight anybody. We go out there and try to protect them and we’re getting killed left and right. It doesn’t make sense.’ ” Ayala, interview by author, August 18, 2009.

  Ayala read about McCain’s time as a prisoner of war in North Vietnam: “When I was on the Forrestal, every man in my squadron had thought Washington’s air war plans were senseless,” McCain wrote. “It’s hard to get a sense that you are advancing the war effort when you are prevented from doing anything more than bouncing the rubble of an utterly insignificant target. . . . We could see SAMs being transported to firing sites and put into place, but we couldn’t do anything about them because we were forbidden to bomb SAM sites unless they were firing on us. Even then, it was often an open question whether we could retaliate or not.” John McCain with Mark Salter, Faith of My Fathers: A Family Memoir (New York: Random House, 1999), 184–85.

  How similar that war had been to this one: “One thing I did learn from it was . . . when the politicians get involved with war, it creates casualties.” Ayala, interview by author, August 19, 2009.

  American soldiers in Afghanistan watched their buddies get killed: “We should be responsible by sending men into war and supporting them and protecting them. Not just send them in and say, ‘Okay, well, you guys can’t shoot until they kill three or four of us, maybe,’ ” Ayala told me. The turn toward counterinsurgency in Afghanistan, with its emphasis on protecting civilians, was spelled out in a NATO-ISAF tactical directive issued shortly after Ayala’s arrest: “In order to minimize death or injury of innocent civilians in escalation of force engagements, Commanders are to set conditions through the employment of techniques and procedures and, most importantly, the training of forces to minimize the need to resort to deadly force. Signals, signs, general and specific warnings (visual and audible) must be unambiguous and repeated to ensure the safety of innocent civilians.” Ayala, interview by author, August 19, 2009, and “Tactical Directive,” Headquarters, International Security Assistance Force, Kabul, December 30, 2008.

  It was an impossible conflict: “You really wonder, who is the enemy? Nobody knows who the enemy is. Everybody can call it the Taliban. But they can be local villagers who are not Taliban, they’re just anti-American. . . . The Taliban takes credit for it, but who knows? You never know who the enemy is.” Ayala, interview by author, August 18, 2009.

  their intelligence was often flawed: For one devastating account, Kate Clark, “The Takhar Attack: Targeted Killings and the Parallel Worlds of US Intelligence and Afghanistan,” Afghanistan Analysts Network, http://www.humansecuritygateway.com/documents/AAN-Takhar-Attack-Targeted-Killings-US-Afghan-Intel.pdf, accessed March 4, 2013. Afghan civilian deaths from U.S. and NATO air strikes nearly tripled between 2006 and 2007, from 116 to 321. The United Nations found that 167 civilians were killed and 40 hurt in NATO aerial attacks between January and June 2011; another 127 were killed and 49 hurt in the first half of 2012. Human Rights Watch, “ ‘Troops in Contact’: Airstrikes and Civilian Deaths in Afghanistan,” 2008, and “Afghanistan Mid-Year Report 2012: Protection of Civilians in Armed Conflict,” United Nations Assistance Mission in Afghanistan and UNHCR, Kabul, July 2012, 35.

  In August 2008, a coalition air strike in the western village of Azizabad: Carlotta Gall, “Evidence Points to Civilian Toll in Afghan Raid,” New York Times, September 7, 2008.

  Then-Secretary of Defense Robert Gates flew to Kabul: “U.S. Apologizes for Afghan Civilian Deaths,” CNN, September 17, 2008.

  General McKiernan, declared reducing civilian casualties “of paramount importance”: “Tactical Directive,” Headquarters, International Security Assistance Force, Kabul, December 30, 2008.

  He cried on TV: See Jason Straziuso, “Tearful Karzai Says Afghan Children Are Dying from Terrorism and NATO Bombs,” Associated Press, December 20, 2006.

  U.S. aircraft had bombed a wedding party north of Kandahar: Abdul Waheed Wafa and Mark McDonald, “Deadly U.S. Airstrike Said to Hit Afghan Wedding Party,” New York Times, November 5, 2008, and “Afghanistan: US Missile Strike Kills 37 Civilians,” Jason Straziuso, Associated Press, November 7, 2008. Fox put the number of dead at forty, including twenty-three children. “U.S. Strike Reportedly Kills 40 at Afghanistan Wedding,” FOXNews.com, November 5, 2008.

  the prevailing Afghan narrative of an arrogant foreign occupation that valued Afghan lives cheaply: “It was right in the middle of all these civilians getting killed,” Ayala recalled. “So the military had to tiptoe through this process and do the right thing, say, ‘Hey, we’re doing what we can to prosecute our soldiers.’ But you never see the pilots getting prosecuted when they drop a bomb and kill twenty-seven, twenty-eight kids, children, wives and husbands, you know?” His Army lawyer advised him that the military had to “placate the Afghan government here,” and that Ayala could “be a sacrifice.” Ayala, interview by author, August 19, 2009.

  Ayala knew that he would be accused of betraying his mission: “I know people are going to judge me, saying, ‘Well, [we] could have got a lot of information.’ And what was anybody going to do with that information? You tell me. How many guys have died there and nothing has happened?” Ayala, interview by author, August 19, 2009.

  more than one thousand men had escaped from the main prison in Kandahar: The Sarposa prison break occurred in June 2008. Candace Rondeaux and Javed Hamdard, “Taliban Seizes Seven Afghan Villages,” Washington Post, June 17, 2008.

  almost certainly with help from inside: “As is to be expected in Afghanistan, a degree of insider involvement is likely.” Captain Nils N. French, “The Sarposa Prison Break,” Canadian Army Journal 11.2 (Summer 2008), 8.

  But ru
shing aid and development into Maiwand was getting soldiers killed: Soldiers in Maiwand “were just being told to accomplish the wheat seed program. Support USAID! And in the meantime they’re losing tons of vehicles to IEDs and stuff like that.” Ayala, interview by author, August 18, 2009.

  The U.S. military was building a new office for the district governor: In March 2009, Lieutenant Colonel Dan Hurlbut, the 2–2 battalion commander in Maiwand, told me that the Americans hoped to move the Maiwand district governor out of his current office and into a new one. The new district center became a project for each successive U.S. unit based there. By the time I visited Maiwand again in fall 2010, it had been built, but the governor rarely used it. “There’s trash everywhere and they don’t like working there because there’s no electricity, no plumbing,” Lieutenant Kirsten Ouimette told me. “So the [district governor] prefers working at the old district center. Even though it’s a little bit crummier, it has trees and flowers and grass and it’s beautiful and that’s a status symbol. So we’re working hard to get them all this stuff so that it’ll become a new district center and that’s good. But at the same time, it’s just, like, ridiculous when they have this old district center we could have just refurbished.” For this and other details about the new district center’s lack of plumbing, police chipping holes in the walls, and officials asking for big-screen TVs, Ouimette, interview by author, October 2, 2010.

  American commanders seemed more interested in winning awards and promotions: “Everybody was there just to check the box,” Ayala told me. “ ‘Okay, we’re going to be here for this long, let’s just do this, do that, and then we can go check the box and we can go home and get awards for it and medals. We’re officers, we can write that up and give each other medals for doing what we did out there.’ But what did you actually do? Build a FOB? What did you do? . . . There was no stability. We got to have security out there, and that wasn’t accomplished.” Ayala, interview by author, August 18, 2009.

  “It’s not what you can do for the people”: Ayala, interview by author, August 18, 2009.

  maybe the only difference one man could make: “It was a way that I can make a difference in this war, because it’s not fair that they get to do all the killing, and nobody gets to kill back,” Ayala told me. “All these soldiers are out there not knowing what they’re doing or why they’re doing it.” Ayala, interview by author, August 19, 2009.

  “Fuck this Muslim shit”: Ayala, interview by author, August 19, 2009.

  Outraged at how the Army was treating his friend: Mike Warren, interview by author, March 20, 2009.

  It was the same law used to charge Blackwater security guards: U.S. Department of Justice, “Five Blackwater Employees Indicted on Manslaughter and Weapons Charges for Fatal Nisur Square Shooting in Iraq,” http://www.justice.gov/opa/pr/2008/December/08-nsd-1068.html, accessed March 9, 2013.

  Strategic Analysis, the defense contractor that had employed him: A letter arrived at his home in New Orleans, terminating his employment. Ayala, interview by author, August 19, 2009.

  In late November, military police escorted him: The account of Ayala’s trip back to the States below is from ibid.

  His longtime girlfriend, Andi Santwier: Santwier, correspondence, February 2, 2013, and Ayala, interview by author, August 19, 2009.

  He had lost twelve pounds: Ibid.

  Someone brought Star Wars books: Frank Muggeo, interview by author, October 18, 2012.

  Muggeo wanted to do something: Ibid.

  she contracted pneumonia and needed a ventilator to breathe: For some details about Loyd’s condition as well as the cause and manner of her death, Army investigation.

  some sights can permanently disorder your mind: Patty Ward, letter to Judge Claude M. Hilton, and Ward, interview by author, December 14, 2012.

  The next day in Maiwand, a man on a motorcycle: When I met the interpreter Jack Bauer, he showed me shrapnel scars in his neck and leg from the bombing; his close friend and bunk mate, an interpreter named Niazi, was killed that day. In addition to the dead, fifty-three Americans and Afghans were wounded. “You can look at that as it’s one hundred meters outside the base and we don’t go there,” Captain Trevor Voelkel, the company commander overseeing that part of the district, told me. “But because of the environment and there’s just hundreds of people everywhere, unless you seal it off like an airport and search every single individual and every single shop, that suicide bomber threat is very real, and we’ve gotten a lot of information, intelligence that they’re walking around or they’re out there. So the benefit of the gains of going there don’t really [ justify] the risk of another suicide attack. And therefore, right now, those risks are greater than we are willing to accept for the benefit that we’re going to get by just going and talking to shop owners.” The small firebase near the district center, known during Loyd and Ayala’s time there as FOB Hutal, was renamed Combat Outpost Rath after Staff Sergeant Joshua L. Rath, twenty-two, of Decatur, Alabama, one of the soldiers killed in the January attack. Voelkel, interview by author, March 24, 2009; Jack Bauer, interview by author, September 23, 2010; and Vanessa M. Gezari, “Death on Film,” Pulitzer Center on Crisis Reporting, April 3, 2009.

  Chapter 7: Crime and Punishment

  The federal public defender came to see Don Ayala: This chapter is based on federal court records, interviews, and the U.S. Army Criminal Investigation Command’s report on the events of November 4, 2008. Nachmanoff and Ayala had spoken on the phone while Ayala was being held in Afghanistan; they met in person for the first time the Sunday he returned to the States. Ayala, interview by author, August 19, 2009.

  He was fresh off a Supreme Court victory: The case, Kimbrough v. United States, centered on the latitude granted judges to depart from federal sentencing guidelines in drug cases involving crack cocaine, the possession and sale of which is punished much more harshly than that of powder cocaine. Nachmanoff represented Derrick Kimbrough, an African-American Gulf War veteran convicted of dealing crack, who had been sentenced to fifteen years in prison when the guidelines called for nineteen to twenty-two years. In December 2007, the Supreme Court ruled in Kimbrough’s favor. Bill Mears, “Justices: Judges Can Slash Crack Sentences,” CNN, December 10, 2007.

  to escape the possibility of a life sentence: “Statement of Facts,” United States of America v. Don Michael Ayala, February 3, 2009, and Ayala, interview by author, August 19, 2009.

  “Anyone possessing a shred of compassion”: Letter of Lieutenant Colonel David C. Thomas to Judge Hilton, March 20, 2009.

  Had he shot the man while he was running: This, at least, was Nachmanoff’s view.

  The wife of one of Ayala’s fellow Karzai bodyguards: The two paragraphs below are based on letters to Judge Hilton from Jeannie Thorpe; Christopher Castruita, Sr.; Greg Lapin; Rodger Kenneth Garrett; Glenn Rodriguez; Randall S. Houghton; Jack Heany; and Scott A. Monaco, filed April 23, 2009, in federal court; some details are drawn from a sentencing documentary filed in support of Ayala.

  The most powerful letter came from Paula Loyd’s mother: Patty Ward, letter to Judge Hilton, April 11, 2009.

  “upon heat of passion and without malice”: “Statement of Facts,” United States of America v. Don Michael Ayala, February 3, 2009.

  Ayala spent two ten-hour days: Ayala, interview by author, August 17, 2009.

  Figley taught at Tulane University’s Graduate School of Social Work: CV of Charles R. Figley, PhD, filed in federal court, May 1, 2009. Figley coedited Combat Stress Injury: Theory, Research, and Management (New York: Routledge, 2007). For his work with the Navy and Marine Corps, Nachmanoff, United States of America v. Don Michael Ayala, “Transcript of Sentencing before the Honorable Claude M. Hilton, U.S. District Judge,” May 8, 2009.

  Figley prepared a report based on his conversations with Ayala: “Dr. Figley concluded that, without knowing it, Mr. Ayala was vulnerable to errors in judgment under combat conditions.” “Defendant’s Position with Regard to Sentencing Factors
,” filed May 1, 2009, 5–6.

  Ayala had told Figley about his childhood in Whittier: Unless otherwise noted, the account of Ayala’s childhood below is based on my interviews with Ayala, August 17–19, 2009.

  Ayala and his brothers played baseball, football: Letter of Dean M. Ayala to Judge Hilton, filed May 1, 2009.

  He and his friends banded together, joining a neighborhood gang called Sunrise: For more on Sunrise: http://www.topix.net/forum/city/west-whittier-los-nietos-ca/TF57AEI 5NFH1GO886/p5; http://www.streetgangs.com/hispanic/whittier; and http://lang.sgvtribune.com/socal/gangs/articles/sgvnp1_ganglist.asp, accessed March 9, 2013.

  fighting had been the way he survived: After the incident in junior high, he told me: “Now fighting was a way of life, and I fought a lot. I fought a lot as a young kid, young boy. I’d say about once a week.”

  Ayala pitched all through Little League: Ayala’s active role in sports and his drawing skills are mentioned in Castruita’s letter to Judge Hilton, April 2, 2009.

  After high school, he enrolled at a local community college: “ . . . he was attending Rio Hondo Junior College near our home and then all of a sudden he decided to enlist in the US Army.” David Ayala, Sr., and Frances Ayala, letter to Judge Hilton, March 17, 2009.

  Ayala excelled at basic training as he never had in high school: “I, his father, warned and challenged him that he might not be able to cope with military service especially if a ranking soldier of small stature started yelling orders directly to his face. . . . Don proved us wrong. He did handle it well and became the ‘top trooper’ in his basic training group in Fort Benning, Georgia.” Ibid.

  Ayala’s unit was sent to Grenada to stop the Soviet Union from gaining a new strategic foothold: The account of Operation Urgent Fury is from Ayala, interview by author, August 18, 2009, and “Operation Urgent Fury: The Invasion of Grenada, October 1983,” http://www.history.army.mil/html/books/grenada/urgent_fury.pdf, accessed March 5, 2013.

  he joined the 12th Special Forces Group in Los Alamitos: Details of Ayala’s Special Forces affiliations and activities are from Ayala, interview by author, August 18, 2009, and Thomas, letter to Judge Hilton, March 20, 2009.