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When the military misreports how soldiers die, journalists must rely on public records and shoe-leather reporting for the truth. From…

When the military misreports how soldiers die, journalists must rely on public records and shoe-leather reporting for the truth.

From the Spring 2007 issue of The News Media & The Law, page 12.

By Lauren Melcher

When an Army casualty notification officer first knocked on Peggy Buryj’s door in May 2004, he told her that her son, Pfc. Jesse Buryj, had been killed in combat. The casualty officer said that Buryj, 21, died from injuries he received when thrown from his Humvee at a checkpoint in Iraq, where he had been stationed since February.

The truth about Buryj’s death was harder to come by.

Since Jesse’s wife was listed as next-of-kin for the Army’s purposes of releasing records, Peggy Buryj had to file Freedom of Information Act requests to obtain her son’s death certificate.

“When I saw the death certificate, I said, ‘What the heck! He was shot?'” Buryj said from her home in Canton, Ohio. “We did not even know he had been shot when we buried him.”

Buryj contacted Washington Post reporter Josh White about her son’s story. White’s subsequent articles — using records obtained from Buryj’s wife — brought Jesse Buryj’s story into the spotlight and helped prompt a third military investigation of his death, which was eventually attributed to friendly fire.

That report found that because Buryj’s death had first been wrongly labeled as an in-combat death, the relevant evidence had been discarded and no ballistics tests could be done to determine whether he was killed by Polish soldiers patrolling with his unit or by an American.

Peggy Buryj may never know who shot her son that day in Iraq.

Buryj contacted White because she had read his stories about a more high-profile tale of military misinformation. In March, the Pentagon’s inspector general found that several Army officials had made misleading statements about football player-turned-Army Ranger Pat Tillman’s death. High-ranking officials blamed Tillman’s death on insurgents, even though they knew at the time of his death that friendly fire was the likely cause.

Tillman’s story may be the most well known in a series of incidents where the original cause of death reported to families — and the media — has turned out to be false. But there have been several other cases in which a reporter has discovered a soldier died in a different way than originally announced by the Pentagon.

In the case of Buryj, a reporter’s diligent research meant the difference between the military’s first inconclusive search and an investigation that finally revealed how many mistakes the military had made in handling Buryj’s death.

Finding the truth can take time. But reporters aiming to uncover what really happened can use public records resources and eyewitness testimony to reconstruct the truth.

‘A great weapon’

For reporters, FOIA requests are a logical place to start when researching soldier deaths since military records are accessible through the Department of Defense.

“FOIA is a great weapon for journalists that is not utilized enough,” said Mark Zaid, a lawyer in Washington who often represents plaintiffs in FOIA litigation.

There are records reporters can obtain through FOIA that are useful in tracking stories about soldier deaths.

Death reports, the military’s official record of a soldier’s cause of death, are key, according to Russell Carollo, a special projects reporter for The Sacramento (Calif.) Bee who has investigated Humvee accidents in the military.

The Military Criminal Investigation Office investigates every death in the armed forces. Until two years ago, only non-
combat-related deaths, including friendly fire casualties, were investigated. But now, according to the Army Office of Personnel, all soldier casualties are investigated immediately.

Any death investigation by the military produces documents and reports that are accessible through FOIA requests.

For more information, experts suggest sending FOIA requests for death certificates, autopsy reports, and disciplinary actions the military might have taken against other people involved in the death.

Carollo cited an instance where Defense Department press releases about Humvee accidents contradicted the military’s accident reports he obtained through FOIA requests. Accident reports are often the most accurate written record of accidents involving military vehicles or aircraft.

Jim Crawley, president of Military Reporters and Editors, said he also uses FOIA a lot when he reports on accident investigations in Iraq.

“File a FOIA request for the accident investigation report as soon as you hear about the crash,” he advised, “because it will take four or five months for the military to conduct an investigation of the accident, and they will send the findings to you then.”

In a case such as Buryj’s, where the accident reports and death certificate contradicted the military’s original announcement, getting those records as soon as possible is important so that further investigations can be undertaken if necessary.

Crawley said that FOIA is most efficient when reporters are specific about what kind of records they are requesting — whether they are medical, death, criminal investigation, or records of medals earned.

Inspector general reports are also obtained through FOIA and have been used to report discrepancies between the reported and the real causes of death for soldiers such as Tillman and Buryj.

The inspector general reviews original death investigations when asked to do so by a member of Congress or another government agency, according to Gary Comerford, public affairs officer for the Pentagon’s inspector general’s office. The inspector general’s office does not comment on ongoing investigations but will release reports once they are completed.

“After we receive three requests for a particular report, we send it to the FOIA Electronic Reading Room,” said Comerford, referring to the Defense Department’s FOIA Web site.

The privacy of the dead

The military does not always respond to FOIA requests immediately or completely.

Frequently, the military denies records requests under the Privacy Act, which is a federal act that protects personal information the government has on file, or under a FOIA privacy exemption that allows personnel and similar files to be withheld if releasing them would constitute “a clearly unwarranted invasion of personal privacy.”

But privacy, for the most part, extinguishes at death under both the Privacy Act and the FOIA exemption. So by proving a soldier is dead, a reporter stands a good chance of overcoming the privacy excuse —
or avoiding it altogether.

Reporters and attorneys suggest sending an agency that denies a FOIA request a Pentagon press release stating the deceased’s name and hometown, a copy of a news article or an obituary.

“You could avoid the possibility of a denial based on the privacy exemption by sending that information with your initial FOIA request,” Zaid advised.

If an agency still resists, Zaid said, “basically, you want to argue that the public’s need to know outweighs privacy interests.”

Even when there are no valid privacy concerns, military officials can be inexplicably slow to turn over information about soldiers who have been killed in Iraq and Afghanistan. By law, FOIA requests should be granted or denied within 20 days, unless an “unusual circumstance” occurs.

Those “unusual circumstances” do not usually apply to military records. But departments that delay releasing records are often not held accountable because newspapers do not have the money to take the fight to court, Carollo said.

Peggy Buryj, for instance, has been waiting two years for the Army to release her son’s full military record.

Carollo has received phone calls from FOIA officers wondering if he is still interested in receiving responses to his requests — even though such verbal affirmation is not required under law.

“They are more brazen now,” Carollo said. “It’s almost like they are saying, ‘We dare you to sue us.'”

Sometimes, Zaid said, suing is the only option.

“I tell reporters to be aggressive, because most of their colleagues will not be,” Zaid said. “Filing a lawsuit absolutely jumps you to the front of the FOIA line, and even if it takes you a long time to get the information, you still have a head start over everyone else.”

Working with families

The length of time between a soldier’s death and the release of the investigation report is still a problem for reporters. This is why Crawley tells military reporters not to rely on FOIA too heavily.

“Frankly, our deadlines are such that FOIA is very much against us,” he said. “We usually can’t use it for anything that is ongoing.”

Michael Sallah, investigations editor of The Miami Herald, agrees that FOIA is difficult to rely on for the full story.

“The military, especially during war, goes into overdrive to protect information at all costs,” he explained.

Sallah advises reporters to work closely with families of the deceased when searching for information. Journalists may benefit from expedited review and fee waivers under FOIA, but family members who are listed as next of kin can get information automatically from the military without filing FOIA requests.

If necessary, the next of kin could also write a letter releasing their soldier’s records from any privacy restrictions so that a reporter could file a FOIA request more easily.

White, of The Washington Post, obtained Buryj’s autopsy report from his wife, Amber. He said it was helpful because it “determined the cause of death and contradicted the initial version of the story given to the families by the military.”

The story that he wrote about the contradiction helped spur a new investigation into Buryj’s death. Two previous military investigations had been unable to determine who killed Buryj or why his death was misreported to his family and the public.

Families can also request information from their congressional representatives.

White said that he does not ask elected officials to circumvent FOIA, but “sometimes senators take interest [in an issue] after seeing a story.” He knows that senators often request information from government agencies on behalf of families, and he says that he would “ask if they have ever done it.”

Peggy Buryj enlisted her senator’s help to avoid the delay of a FOIA request last fall.

“The military originally told me I would have to file another FOIA to see the results of the second inspector general report,” she said, “but I called my senator and said, ‘I am willing to file the FOIA, but this is the last straw. There had better be a uniformed officer delivering that report to my doorstep after all I have been through.'”

She had a copy of the report in her hands the day it was released by the inspector general.

‘The best and most accurate source’

Sallah and White both recommend old-fashioned shoe-leather reporting when working on a story about government misinformation.

“The best and most accurate source of information on this topic is eyewitnesses,” White said.

Sallah has also relied on testimony of members of a deceased soldier’s unit for military investigation stories. Their names may not be available through FOIA because of the Privacy Act (since the unit members would presumably still be living), but White suggests contacting the pallbearers from a soldier’s memorial service or browsing the message boards on memorial Web sites.

“Fellow soldiers might be able to tell you information that the government cannot or will not release to you through FOIA,” Sallah said.

In his experience, people are sympathetic to the reporter’s goals and are willing to share the truth about how their friend died.

Information from fellow soldiers can lead reporters to new, more specific FOIA requests that might release crucial information.

However, in Buryj’s case, the soldiers in his unit were ordered not to talk about how he died because the incident was under investigation for so long. White did quote one soldier in his story for the Post but would not reveal how many soldiers he had interviewed.

For Greg Mitchell, the editor of Editor & Publisher, constant skepticism is the key to uncovering stories of military misinformation. Mitchell has done a lot of reporting on inconsistencies in reporting soldiers’ deaths and finds most of his stories by “looking at what is out in the media and reporting contradictions.”

He spends a lot of time researching accidents and death reports, and was one of the first journalists to say that the military was underreporting death counts early in the war.

When he read in another newspaper that Pvt. Matthew Zeimer, who died in February, was not fully trained when he arrived in Iraq, Mitchell realized the Army had just announced that the same death was being investigated as a friendly fire incident. No other reporter had made the connection between the troop surge and friendly fire deaths.

“It is because of skepticism that I find nuggets like that,” Mitchell said.

Regardless of how reporters uncover their stories, Mitchell advised journalists to keep this skepticism in mind when reporting on military deaths.

“My biggest complaint is when reporters take official announcements from anyone as the truth.”