Prosecutors plan to argue that the man a former Special Forces soldier is accused of killing in February 2010 was a farmer, not a bomb-maker for the Taliban.
A military judge heard motions Monday in the case against Maj. Mathew Golsteyn, who in June pleaded not guilty in the killing of an unarmed Afghan national named Rasoul. The trial is set for Dec. 2.
Golsteyn was a Green Beret captain with Fort Bragg's 3rd Special Forces Group. He contends the killing was justified under the wartime conditions in Afghanistan because the man was thought to be an insurgent who made a bomb that killed two Marines.
A prosecutor, Maj. Brent Goodwin, said Rasoul was a poor farmer with no connection to the Taliban. The man was uneducated and had no training in explosive devices, Goodwin said.
“Rasoul was not a bombmaker,” Goodwin said.
Capt. Nina Hillner, a defense lawyer, said Rasoul's brother said Rasoul was a member of the Taliban.
Goodwin sought a motion to allow prosecutors to take depositions from four people in Afghanistan because they are not available to come to Fort Bragg for the trial. He said their testimony is needed to show the unlawfulness of the killing, to show that a death occurred and to corroborate statements made by Golsteyn.
Rasoul's body was dismembered and burned, Goodwin said. An agreement between the United States and Afghanistan does not include a requirement for someone to leave their country to testify in a court case, he said.
“The government does not have the capability to compel these witnesses,” he said.
Hillner opposed Goodwin's request.
The prosecutors had not shown that the witnesses' testimony would be relevant or that there were exceptional circumstances that showed their depositions were needed.
“They haven't met that burden,” she said.
The judge, Col. Tyesha Smith, approved the request for depositions and said they should be done within 30 days. She denied prosecutors' request for permission to depose other individuals if they showed up and said they were eyewitnesses.
Chief Warrant Officer 4 Michael Hessler, who is the assistant operations officer for Fort Bragg's Criminal Investigation Command office, testified Monday that he had interviewed Rasoul's son and cousin in Afghanistan. Hessler, who was the agent in charge of the investigation, said that he thought he was going to interview Rasoul's widow, but she was sick and the cousin showed up instead.
At the prosecutors' request, Smith ordered to keep secret the names of the people that Hessler interviewed and the names of others that prosecutors want to question.
Hessler testified Rasoul's son and cousin were both in one room when he interviewed them because there was little space at the compound where he was working. He used an interpreter and a transcript was created from a video of the interviews, he said.
The son and cousin are not able to travel to the United States because they fear retribution from the Taliban, Hessler said.
“They feared the Taliban would find out they were cooperating and talking,” he said.
Also at Monday's hearing, Maj. Joseph Morman, another military prosecutor, said a CIA employee involved in the case has agreed to be interviewed by prosecutors and defense lawyers. Both will be present during the interviews and the employee will have a personal lawyer present, he said.
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