A military hearing officer on Thursday recommended against court-martialing two U.S. pilots for killing four Canadian soldiers in Afghanistan last year in a mistaken bombing that investigators said showed "reckless disregard" for standing orders and their own safety.
The recommendation is a key step in determining whether Majs. Harry Schmidt and William Umbach will face a military trial on involuntary manslaughter and other charges that could put each of them in prison for up to 64 years.
The final decision is up to Lt. Gen. Bruce Carlson, commander of the 8th Air Force. He is not bound by the recommendation from Col. Patrick Rosenow, who presided over a nine-day investigative hearing in January, and there was no immediate indication when Carlson might rule.
The case had been closely watched in Canada, where many were outraged by the "friendly fire" bombing and the two days it took President Bush to publicly apologize. The bomb also wounded eight Canadian troops, one seriously.
The two Illinois Air National Guard pilots said they thought they were under enemy attack last April 17 and had never been told allied troops might be holding exercises in the area that night.
Schmidt, who dropped the bomb, blamed the "fog of war" and said he believed he and Umbach had been ambushed. Defense attorneys also suggested Air Force-issued amphetamines had clouded the pilots' judgment.
But a joint U.S.-Canadian investigation concluded the pilots were to blame. The head of the investigation testified the men showed "reckless disregard" for standing orders against attacking, ignored briefings about allied troop locations and could have simply flown their F-16s out of the area.
Schmidt and Umbach became the first Air Force pilots to face homicide charges as a result of combat when they were charged with four counts of manslaughter, eight counts of aggravated assault and dereliction of duty.
The pilots were returning from a 10-hour patrol when they spotted surface-to-air fire and feared it was from Taliban forces. It turned out to be from Canadians with the 3rd Battalion of the Princess Patricia's Canadian Light Infantry, based near Edmonton.
The troops were at Tarnak Farms, a former al Qaeda training area near Kandahar that allied forces had begun using as a practice range. The Canadians were firing anti-tank and machine-gun rounds horizontally, not vertically in a way that would have threatened the two F-16s, according to investigators and survivors of the bombing.
On audio and video of the incident taken from Schmidt's F-16, a flight controller is heard saying "hold fire" after Schmidt asks permission to fire his 20 mm cannons, thinking Umbach was under attack.
Four seconds later, Schmidt said he was "rolling in, in self defense." He dropped the laser-guided bomb 35 seconds after that, killing Sgt. Marc Leger, Cpl. Ainsworth Dyer, Pvt. Richard Green and Pvt. Nathan Smith. They were the first Canadians to die in combat since the Korean War.
One of the wounded, Sgt. Lorne Ford, remembered hearing a jet overhead and then blacking out.
"I woke up on my right side and I noticed my injuries right away," Ford testified. He lost his right eye and now walks with a prosthetic left leg.
Less than three minutes after the bomb hit, Schmidt said: "I hope that was the right thing to do."
"Me too," said Umbach, the mission's commander.
Schmidt transferred to the National Guard in 2000 after a combat-decorated career as a Navy pilot and a stint as an instructor at the Navy's "Top Gun" fighter pilot school. Umbach is a United Airlines pilot who had served in the Air Force. Neither had blemishes on their flight records.
At the hearing, several experienced F-16 pilots said Schmidt and Umbach had done nothing wrong because airmen are trained to attack if they believe they are under enemy fire. Schmidt and Umbach defended themselves as they offered emotional apologies to the victims' families.
Defense lawyers cast the men as scapegoats for a military communications breakdown, and said Air Force brass, not the pilots, should be punished. David Beck, Umbach's lawyer, also called on the U.S. government to pay relatives of the Canadian victims for their loss.
The lawyers repeatedly noted the charges were filed on the first anniversary of the Sept. 11 terrorist attacks.
"I think the date Sept. 11 speaks for itself," Beck said. But he would not elaborate on whether he believed the date was a symbolic gesture or an attempt to bury the charges in the flurry of anniversary news coverage.
Brig. Gen. Stephen Sargeant, who headed the investigation and filed the charges, denied the date had any significance.
The angry reaction in Canada recalled the outrage in Italy in 1998, after a Marine jet clipped a ski-lift cable in the Alps during a training flight, sending a gondola plummeting to the ground and killing 20 people inside. Investigators blamed the flight crew, but the pilot was acquitted of manslaughter.
In this case, Air Force attorneys said Schmidt acted irresponsibly by using lethal force and Umbach failed to stop him. Prosecutors said both men had been briefed about the possibility of "friendlies" in the area and violated rules of engagement by putting themselves in danger.
Schmidt, however, said he and Umbach were never told about the exercises that night. He said they had been briefed "that Taliban were expected to use ambush tactics in and around Kandahar."
The men were flying at more than 15,000 feet when they spotted the gunfire. Sargeant testified that the men were well out of range and there was no need to engage what they thought was the enemy.
"Did you find this to be a rapidly unfolding situation?" Air Force lawyer Col. John Odom Jr. asked.
"No, in that there was nothing in the tapes that showed me a sense of urgency to force this situation rapidly drawing to the conclusion it did," Sargeant replied.