Kensinger's attorney in Tillman case lashes out at Army

Updated: August 10, 2007, 10:50 PM ET
By Mike Fish | ESPN.com

The attorney for a retired three-star general censured last week for misconduct in the 2004 "friendly fire" death of former NFL player Pat Tillman has lashed out at top Army officials. Charles Gittins, Lt. Gen. Philip Kensinger's attorney, described his client as the "fall guy" of the investigation.

Gittins told ESPN.com that Kensinger has neither received a copy of the censure nor spoken about it with the Secretary of the Army, Pete Geren. Kensinger, 58, was censured by Geren after senior Army officers determined earlier this year that Kensinger lied to investigators about when he learned that Tillman's death was a suspected friendly fire case. Investigators determined that Kensinger had been alerted of those suspicions days before he attended a nationally televised memorial service for Tillman on May 3, 2004. At that time, the Tillman family and the public still believed the Army's initial report that he had been killed by enemy fire in Afghanistan 11 days earlier, on April 22.

Kensinger was unavailable for comment, but Gittins said he is baffled by the Army's handling of the censure.

"I explain it as extremely poor leadership," Gittins said. "Unconscionably poor leadership, in fact. For my client to find out on the news that he has been censured by the Secretary of the Army is disgracefully cowardly ... I assume the Secretary of the Army wasn't lying ... but my client hasn't seen anything about it."

Department of the Army spokesperson Paul Boyce said the correspondence regarding the censure had been sent to Kensinger, but added, "Rest assured, if Mr. Gittins' client has not received the first letter, we'll get out another copy to him and the general most quickly."

Boyce provided a number of related documents to ESPN.com, including a memorandum signed by Kensinger acknowledging receipt of an April 25, 2007, administrative reprimand issued to him by Gen. William Wallace, who had been assigned by the Secretary of the Army to review the Department of Defense Inspector General's findings in the Tillman incident. Kensinger filed a rebuttal to the reprimand, but the Secretary of the Army formally censured Kensinger on July 30 on the same grounds.

Message from Afghanistan
On April 29, 2004, then-Maj. Gen. Stanley McChrystal, commanding general of Joint Special Operations Command, sent a "Personal For" [P4] message to three Army commanders: Gen. John Abizaid, the head of U.S. Central Command; Gen. Bryan Douglas Brown, then head of the U.S. Special Operations Command; and Lt. Gen. Philip R. Kensinger, then head of the Army Special Operations Command. The message read:

"Sir, in the aftermath of Corporal Patrick Tillman's untimely yet heroic death in Afghanistan on 22 April 04, it is anticipated that a 15-6 investigation nearing completion will find that it is highly possible that Corporal Tillman was killed by friendly fire. This potential finding is exacerbated by the unconfirmed but suspected reports that POTUS [President of the United States] and the Secretary of the Army might include comments about Corporal Tillman's heroism and his approved Silver Star medal in speeches currently being prepared, not knowing the specifics surrounding his death. The potential that he might have been killed by friendly fire in no way detracts from his witnessed heroism or the recommended personal decoration for valor in the face of the enemy. Corporal Tillman was killed in a complicated battlespace geometry involving two separate Ranger vehicle serials traversing through severe terrain along a winding 500-600 foot defile in which friendly forces were fired upon by multiple enemy positions. Corporal Tillman disembarked from his vehicle, and in support of his fellow Rangers and demonstrating great concern for their welfare over care for his own safety entered the enemy kill-zone into which both enemy and friendly fire impacted. I felt that it was essential that you received this information as soon as we detected it in order to preclude any unknowing statements by our country's leaders which might cause public embarrassment if the circumstances of Corporal Tillman's death become public."

This is the reaction to the memo from Mary Tillman, Pat Tillman's mother:

"That memo is damming as hell. And yet, nothing happens to [McChrystal]. He is writing fraudulent language in that memo. He is giving examples of how they can script the Silver Star award, even though Pat was killed by fratricide. And he is saying we need to keep our leadership abreast of things so they don't embarrass themselves, if the circumstances of Pat's death should become public … He should be saying 'We're going to have to put a hold to the silver star and we're going to have to notify the family [of suspected friendly fire].' That is what he would say if he was innocent, but he is not. He is trying to find a way that they can continue this false, elaborate story of theirs. And the fact that he is off the hook is atrocious."
"They are not true," Gittins said of the allegations that Kensinger had lied to the Tillmans. "Most of the sane people in the Department of Defense know they are not true, but somebody has to be the guy who gets left holding the smelly bag. And it is my client."

According to Army documents, Kensinger repeatedly contradicted other officers' testimony, and sometimes his own, during the Army's investigation. In one instance, Brig. Gen. Howard Yellen, deputy commanding general to Kensinger, testified that he told Kensinger friendly fire was suspected in Tillman's death on April 24, 2004 -- two days after the shooting.

A congressional committee, spurred by concerns from the Tillman family about the Army's handling of the death, has been conducting hearings in an effort to determine when senior defense leaders knew of Tillman's death and whether facts were purposely concealed for five or more weeks. The responsibility for the time lapse between the April 22 firefight and the public revelation in late May that friendly fire was involved, the Tillmans believe, goes well beyond Kensinger.

"I don't think Kensinger is the definitive bad guy," said Mary Tillman, Pat's mother. "I absolutely don't. I think he is the scapegoat. I actually told Secretary of the Army Pete Geren the same thing. I said that I did not believe that Kensinger was the ultimate culprit here. That there are a lot of people who played a role in this and they are getting off without any punishment."

Among the culpable Army officers, according to Mary Tillman, are Lt. Gen. Stanley McChrystal and Gen. John Abizaid, now retired.

One of the issues is the existence of an April 29, 2004, high-priority "P4" [Personal For] e-mail sent by McChrystal that suggested President Bush and Secretary of the Army be notified of the possibility of friendly fire in Tillman's death to prevent any embarrassing public statements. In the same memo, McChrystal spoke of the approval for an award of the Silver Star to Tillman, which typically has not been awarded to soldiers accidentally shot by their own men.

Kensinger was copied on that e-mail, which was sent days before the public memorial he attended for Tillman in San Jose, Calif. Kensinger, however, claims he did not become aware of the e-mail until he returned from the memorial.

The Tillman family wasn't told about the fratricide until May 28, 2004.

"My client's recollection is he didn't see [the memo] until after the service," Gittins said. "There is another officer on his staff who says he did see it before the service. But what the officer says he did with it is inconsistent with what my client then recalled and another officer reports happened. So it is just the timing of the thing. My client's recollection is he didn't know about the P4 until after the service. That is the lie that they said my client told. This is an important point.

"My client wouldn't have told the Tillmans, anyway. Even if he had read that message, he wasn't going to report information that was not confirmed and approved by the combatant commander."

Gittins suggested the responsibility for informing the Tillman family belonged to Abizaid, then head of the U.S. Central Command overseeing the Middle East and Central Asia. Abizaid was the primary recipient of the e-mail from McChrystal. During a congressional hearing last week, Abizaid testified that he didn't receive the e-mail until at least May 6 -- and said he never notified President Bush about it -- because of an unexplained mix-up at headquarters.

"His communications officer would have received it," Gittins said of Abizaid. "And it would be a P4 from another general officer, which would be the kind of thing he would probably get a phone call about. ... I think it is inconceivable that [Abizaid], as the combatant commander who ordered the investigation [into Tillman's death], would not have found out about that.

"My client was not the combatant commander. It was not his investigation. And he was not the person who would approve the investigation nor report the investigation's results to the family."

ESPN.com's attempts to reach Abizaid and McChrystal proved unsuccessful. Abizaid, however, denied any wrongdoing during his appearance before the congressional hearing last week, saying "I don't think there was a cover-up. I think people tried to do the right thing, and the right thing didn't happen."

Kensinger, commanding general of the U.S. Special Operations Command until his retirement in February 2006, has refused twice to appear voluntarily at hearings into the Tillman issue conducted by the House Committee on Oversight and Government Reform. Last week, Kensinger was a no-show after lawmakers said he couldn't be found to be served a subpoena to appear.

Gittins said Kensinger would not be available for public comment because he has nothing to gain. But the attorney said he has advised House committee leadership that Kensinger will appear voluntarily if he is granted testimonial immunity, a request that so far has not been granted.

"What they wanted was a public flogging of my client on TV," Gittins suggested. "No congressional hearing is going to resolve anything. They are just a bunch of blowhards that want to hear themselves talk. So I reject the idea that if he would have shown up for a hearing that anything would have been resolved. If it was going to be a fact-finding hearing with some competent fact-finder, not the members of Congress, I'm sure we would probably get to the bottom of it."

According to Gittins, Kensinger was in his North Carolina office at the time U.S. marshals sought to serve the subpoena. But Gittins said they didn't show up there.

Committee chairman Rep. Henry Waxman [D-Calif.] disputes that, saying "U.S. Marshals repeatedly tried to serve the subpoena on Gen. Kensinger, and I regret that he was able to evade service. The committee remains interested in questioning him about this matter."

A committeeman representative said additional hearings on the Tillman incident are likely when Congress returns from recess after Labor Day.

Mike Fish is an investigative reporter for ESPN.com. He can be reached at michaeljfish@gmail.com.