When insurgents shot down a CH-47D Chinook helicopter carrying Navy SEALs over Afghanistan in 2011, it spawned myriad questions about who in the U.S. military and political establishment should be held accountable. But the families of several of the 38 men killed in that mission intend to take it a step farther, suing another entity more removed from the incident: Iran. Problem is, the families don't at the moment have much in the way of direct evidence to implicate Iran in the shootdown.
The families plan to name Tehran, two of its leaders -- former President Mahmoud Ahmadinejad and Ayatollah Seyed Ali Hosseini Khamenei -- and Iran's Revolutionary Guards among the defendants in a lawsuit seeking $600 million in damages. The suit, to be filed in U.S. District Court in Washington, also will name several other individuals and organizations more commonly associated with the U.S. war in Afghanistan, including the Afghan government itself, President Hamid Karzai, the Taliban and al Qaeda. Additionally, lawyer Larry Klayman, who is representing the families, tells Foreign Policy the suit will target three Afghan military organizations: The Afghan National Security Forces, the Afghan Operational Coordination Group, and Amalyati Qeta/Qeta-e-Khas-e-Amalyati, an Afghan special operations unit.
It's the latest in a series of legal maneuvering for Klayman on behalf of several of the families who lost service members in the downed helicopter, which went by the call sign Extortion 17. In June, they filed another suit that named not only foreign leaders in Iran and Afghanistan, but Vice President Joseph Biden and former Defense Secretary Leon Panetta. That litigation said Panetta was guilty of subjecting the SEALs on board Extortion 17 to retaliatory attacks because forces from the same Naval Special Warfare Group -- commonly known as SEAL Team 6 -- were involved in the daring helicopter raid that killed al Qaeda leader Osama bin Laden in May 2011, about three months before Extortion 17 was shot down.
The last suit also accused Biden of exposing the identity of the SEALs in the bin Laden raid, all but two of whom were from SEAL Team 6. It was dismissed without prejudice last year as Klayman and the families pondered how best to handle litigation.
Suing government officials, foreign or domestic, can be an exercise in futility. U.S. law grants sovereign immunity to government officials and organizations in nearly all cases, and to foreign officials and organizations if they were acting in their official capacity. The evidence released in the Extortion 17 demonstrates no confirmed link between Karzai, Tehran and the insurgents who shot down the helicopter, but Klayman said a case can be made that all government officials named in the suit were acting outside their official capacity.
It wouldn't be the first time that Klayman faced long odds and won, however. The conservative activist, known for his harsh criticism and frequent suing of the federal government, is coming off a win in December in which a federal judge sided with him over the National Security Agency. In that case, U.S. District Court Judge Richard Leon agreed that the NSA program that gathers information on nearly all U.S. phone calls is likely unconstitutional. A previous opposing ruling has raised the prospect that the issue could be heard by the U.S. Supreme Court.
Extortion 17 went down in Afghanistan's Tangi Valley in Wardak province, west of Kabul, U.S. officials said. The disaster killed all 30 Americans, seven Afghan commandos, an Afghan interpreter and a working dog on board on Aug. 6, 2011 -- the single greatest loss of U.S. life in the Afghan war. It was attacked from the ground by insurgents wielding rocket-propelled grenades, and exploded in a fireball, witnesses later told military investigators. The group included 17 SEALs, all but two of whom were from SEAL Team 6. (A different unit within the SEAL team executed the daring raid in which U.S. forces killed Osama bin Laden on May 2, 2011.) The other Americans on board included five special operations support personnel and members of the Army National Guard who manned the helicopter.
The incident has spawned deep, bitter criticism that the mission was poorly planned at best, and doomed from the start at worst due to a potential conspiracy. It also has grabbed congressional interest as the families continue to make noise. In December, U.S. Rep. Jason Chaffetz (R-Utah) told Foreign Policy that he expected the House Committee on Oversight and Government Reform will hold a hearing to probe the helicopter's demise early this year. That is still the case, his spokeswoman, MJ Henshaw, told Foreign Policy, although it has not yet been scheduled.
On Dec. 31, Klayman also filed a motion for summary judgment in U.S. District Court in Florida railing against the military's alleged secrecy in the case, and complaining that his related Sept. 4 Freedom of Information Act requests have not been filled. Freedom Watch seeks autopsy reports, emails, telephone records and virtually anything else related to Extortion 17's demise, according to a copy of the motion obtained by Foreign Policy.
The military, which can take months, if not years, to respond to some FOIA requests, has released only what the families already received, Klayman said. He argued in his motion that the "immediate production of these documents is necessary in order to prepare his clients for the forthcoming congressional inquiry." He adds that the military has "acted in bad faith with regard to honoring its legal commitments to the families of these fallen national heroes," and that the public deserves to know exactly what happened in the deaths of the service members involved.
Among their questions, the families want to know why the SEALs were all placed in one helicopter when a second one nearby was nearly empty, why the mission proceeded with less drone surveillance than normal, and why the men were on a decades-old Chinook, rather than the high-tech MH-60 Blackhawks they typically used. They also question why the Afghan military was allowed to swap in the seven commandos who participated in the mission at the last minute. The switch has raised questions whether the commandos -- or someone else in the Afghan military -- may have tipped of the insurgents that the SEALs were coming.
Klayman said he intends to file the new suit on behalf of the families of Army Staff Sgt. Patrick Hamburger, 30; Navy Petty Officer 1st Class Michael Strange, 25; and Petty Officer 1st Class John Douangdara, 26. Hamburger was a crew chief aboard the helicopter when it went down. Strange was a cryptologist with the SEAL unit, and Douangdara served as a dog handler.
The elder Strange told Foreign Policy that he appreciates Klayman's work, and is deeply suspicious of the government. He wants answers to make sure "nothing like this happens" to another U.S. service member's family, but also believes the NSA has been tapping his phone since the disaster to see what he knows, citing bizarre text messages he received that show only numerical digits.
"If a Gold Star father is going to ask about what's happening, they're going to tap my phone?" he asked. "I think it's huge. I think it's huge for the American people. I think they need to make some amends."
The new suit, Klayman said, will allege that those named in it violated the fallen service members' rights, engaged in racketeering and international terrorism, harbored an concealed terrorists, provided material support for terrorists or terrorist groups. In addition, Klayman will attempt to show that the targets of the suit caused his clients mental anguish, severe emotional distress, and the loss of the protection, care and earnings of their deceased family members. The families have undoubtedly suffered from the loss of their loved ones, but it remains to be seen how Klayman will prove the conspiracy, racketeering, and terrorism accusations against senior government officials from Iran and Afghanistan.
Klayman said it is "common knowledge" that Iran, declared a state sponsor of terrorism in 1984, pays bounties for the deaths of U.S. service members. That allegation circulated widely in 2010, after the Sunday Times of London reported that at least five Kabul-based Iranian companies were secretly passing money to the Taliban as a reward for killing U.S. and Afghan troops. Since Iran finances terrorism, Klayman said, the country and its leaders should not be held exempt from his lawsuit by the provision in U.S. law that prevents legal action against foreign states acting in their official capacity.
Similarly, Klayman said, Ahmadinejad should not be held exempt because it has been widely reported he had a role in the kidnapping of U.S. embassy personnel from Tehran in 1979. In 2005, U.S. survivors of the crisis accused Ahmadinejad, then taking over as Iran's president, of gunning down hostages while serving as one of their captors. The Iranian leader denied the allegations, and the CIA later determined that the allegations were likely untrue, according to media reports at the time.
Khamenei, Iran's supreme leader, is named in Klayman's suit because of his control over the Iranian military and involvement in terrorism, the lawyer said. Because of that, Klayman said, Khamenei should lose the immunity he otherwise would get from individuals seeking monetary damages from him. The lawsuit will use similar logic to take on Karzai, the Afghan government, the Taliban and al Qaeda.
Al Qaeda and other terrorist organizations have been sued successfully before. In 2011, for example, a New York court found that al Qaeda should be assessed $9.3 billion for the damage done to New York City in the 9/11 attacks.
Getting them to pay, of course, is far more difficult.
Mass Communication Specialist 3rd Class Geneva G. Brier/ U.S. Navy