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Attorney for censured General: Waxman told 'blatant lie' on subpoena evasion
Michael Roston
Published: Wednesday August 8, 2007

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The attorney for the retired general who was censured by the Army for his role in the announcement of the death of Corporal Pat Tillman challenged the idea that his client had 'evaded' a subpoena from Congress to testify at a hearing last week.

Lieutenant General Philip Kensinger's attorney went as far as accusing Rep. Henry Waxman, Chairman of the House Committee on Oversight and Government Reform of telling a 'blatant lie.'

"I am saying that is a blatant lie," Charles Gittins, the Virginia-based attorney for the retired Kensinger told RAW STORY in an e-mail.

Gittins was reacting to a statement made by Waxman in his opening remarks at a hearing one week ago in which several top Pentagon witnesses, including ex-Secretary of Defense Donald Rumsfeld, denied any cover up had occurred on the cause of Tillman's death.

"General Kensinger refused to appear here today," the California Democrat said in his opening remarks. "His attorney informed the Committee that General Kensinger would not testify voluntarily and, if issued a subpoena, would seek to evade service."

Ex-Special Forces General hard to find

Kensinger's attorney contested the summary of events offered by Rep. Waxman.

"I told the committee lawyers that my client declined to testify and would attend his meeting, as scheduled," Gittins added. "I told them I would not advise the Committee of his whereabouts and expected that without that information he would be difficult to locate. But my client did not evade and I never told anyone that he would evade service. I observed that it was unlikely that they would find him, which was true, since the meeting was not in his home."

RAW STORY contacted the Oversight Committee, but did not receive a response to Gittins' remarks at press time.

Gittins, a specialist in defending Armed Services members in courts martial and other legal proceedings, added that the US Marshals sent by the Committee to serve General Kensinger could have found him at his office.

"Upon completion of that meeting, he went to his office and worked there for the rest of the day," he told RAW STORY. "The office staff was aware of his whereabouts all day and would have told anyone who called where to locate the General....Fortunately, as I expected, the Marshals Service proved unequal to the task of finding my client in plain sight."

The retired Kensinger, who used to head up the US Special Operations Command, is Chief Operating Officer at Oakgrove Technologies. The company is a military contractor based in Raleigh, North Carolina.

Steve Blando, a spokesman for the US Marshals, confirmed that Raleigh-based Marshals only attempted to serve Kensinger with the subpoena, issued Monday, July 30, at his home.

"We're given an address, and we go to that address," he told RAW STORY. "The Marshals service received the subpoena on Monday, and made several attempts to deliver it to the residence in the Raleigh area as late as Tuesday evening."

But Gittins insisted that Kensinger's absence from his home on Monday the 30th and Tuesday the 31st was not evidence of his intent to 'evade' the subpoena.

"He traveled on Monday to a meeting out of town," the attorney explained. "The meeting was on Tuesday and after the meeting he went to his office and then to the place he was staying overnight for the business meeting."

Gittins also pointed to a letter he sent to the committee more than a week before the hearing stating that his client would not testify because he had a prior business commitment. He criticized the committee for waiting so long to issue a subpoena.

"Why did they wait until Monday to issue the subpoena when my letter was delivered by e-mail on 23 July?" Gittins asked. "Their dilatory conduct is not my problem nor my client's problem."

Gittins' letter to Waxman can be read at this link.

Attorney calls Committee members 'blow hards'

Secretary of the Army Pete Geren censured Kensinger on July 31 for 'subverting' the investigation into the misreporting of Tillman's friendly fire death in Afghanistan.

"Your failings compounded the grief suffered by the Tillman family, resulted in the dissemination of erroneous information and caused lasting damage to the reputation and credibility of the U.S. Army," Geren said in a letter to Kensinger.

Kensinger has also been threatened with a post-service demotion, although no such action has occurred. A court martial at this stage appears unlikely.

In spite of the cloud that Geren's censure put over his client, Gittins saw no benefit to the retired general testifying in front of the Oversight Committee.

"Nothing was going to be resolved in such a spectacle," he told RAW STORY. "What the hearing really amounted to was a chance for a bunch of blow hard politicians to rebuke a group of dedicated public servants who were doing the best they could under the circumstances."

In spite of Gittins' criticisms of the hearing, ex-Secretary of Defense Donald Rumsfeld decided to testify alongside retired Generals Richard Myers, John Abizaid, and Bryan Douglas Brown in the Aug. 1 session. The four denied any 'cover up' was behind the Pentagon's initial announcement that Tillman was killed by enemy fire rather than fratricide.

Still, Kensinger's counsel insisted that the harm to the former NFL star's family was caused by the Army leadership, and not his client.

"Since General Abizaid convened the investigation and would be the officer who approved its findings, as a matter of chain of command and military protocol, this demanded that my client not do anything until the investigation was completed and its findings were officially reported and approved by the commander," he insisted.

He added, "None of the commanders nor their lawyers were aware of the requirement to report to a family that friendly fire was suspected in the death of their family member. This is a failure of Army leadership to inform the commanders at all levels of the changes to the regulation."

Given Gittins' remarks, it seems possible that putting Abizaid and Kensinger next to one another in the hearing could have resulted in conflicting accounts of how Tillman's death was being investigated.

In contrast to the attorney's claim that Abizaid was responsible for the investigation, the former head of US Central Command stated that he was relying on the investigation within Kensinger's command to give a conclusive statement on whether or not fratricide occurred.

"I said [to Gen. Myers] that it's clear that there's a possibility of fratricide involving the Tillman case, that General McChrystal has appointed the necessary people to investigate to determine precisely what happened and that while it's likely that there's fratricide, we'll know for sure after the report is finalized, which will reach me when it gets done," he stated in the hearing.

Committee undecided on next steps for Kensinger

The Oversight Committee has yet to make an announcement on whether it would again seek to compel testimony from Gen. Kensinger.

"The subpoena was returned to the committee," a committee spokesperson told RAW STORY on Monday. "We are continuing to investigate Lt. Gen. Kensinger's role in the announcement of Corporal Tillman's death."

In the meanwhile, Gittins insisted that Kensinger could not be charged with 'contempt of Congress' because he was never successfully served with the subpoena.

"My client was never served with a subpoena; therefore, he could not as a matter of law be in contempt of Congress," the attorney reasoned. "Had he been served with a subpoena and then failed to attend the hearing, then he might be voted in contempt. But, that is all hypothetical because no subpoena was served on my client. And, since I was never provided a copy of the subpoena, I can't even say if it is a fact that a subpoena actually ever was issued."