The Tender Soldier: A True Story of War and Sacrifice (19 page)

About two weeks after Ayala’s arrest, the U.S. government charged him with second-degree murder under the Military Extraterritorial Jurisdiction Act, a statute designed to handle crimes committed by U.S. contractors accompanying the military
overseas.
It was the same law used to charge Blackwater security guards who opened fire in a Baghdad square in 2007, killing fourteen Iraqi civilians and wounding twenty others. Ayala would be tried in federal court.
Strategic Analysis, the defense contractor that had employed him during his stint with the Human Terrain System, promptly fired him.

In late November, military police escorted him by plane to Kuwait and handed him off to soldiers from the Army’s Criminal Investigation Division. Federal marshals arrived the next day to take him back to Washington, D.C. They flew on a commercial plane, where the marshals cuffed his wrists and covered his hands with a jacket so as not to alarm the other passengers.

They landed early on a Sunday morning, and at the federal holding facility in Virginia, they put him in solitary. Ayala didn’t know how long he would be there, but he knew a thing or two about the prison system, enough to know that he wanted to be in the general population. He would stay in solitary, the guards told him, because of the severity of the charge against him.

He went to court the next morning dressed in an orange prison jumpsuit.
His longtime girlfriend, Andi Santwier, watched from the gallery, along with her parents, who had flown in from California. She signed over their house in New Orleans as collateral for his bond. If Ayala ran, the government could sell the house and take two hundred thousand dollars.

When he got out that afternoon, he and Santwier and her parents walked across the street to the Westin hotel and sat at the bar. Ayala downed a scotch and then ordered a Sazerac, a New Orleans cocktail with rye whiskey, bitters, and absinthe that reminded him of home. They spent the night with Santwier’s relatives in Washington. Ayala and Santwier talked, but he doesn’t remember what they said to each other. He was exhausted, his body worn.
He had lost twelve pounds since he killed the Afghan.

*  *  *

At Brooke Army
Medical Center in Texas, Paula Loyd had been struggling to survive. Ward and Muggeo spent hours at her bedside and friends streamed in to see her.
Someone brought Star Wars books and Muggeo read them aloud to her, stumbling over the names of imaginary planets. He touched her foot, which hadn’t been burned, squeezing her big toe in a silent greeting. Her body battled infections, and those who loved her fully believed that she would recover, but even they sometimes found it hard to look beyond what they saw in front of them. Layers of gauze hid her body and head. She had been talking when she arrived, but the doctors pumped her full of sedatives and drugs to numb the pain. After that, she was rarely lucid.
Muggeo wanted to
do
something. When he heard she’d been hurt, he’d called in every last favor to make sure she got the best care. “I’m not a doctor,” he would tell me later, “but I can be an asshole.” Now he ducked into the hallway to take calls from Fort Benning, trying to stay busy and sane. He wasn’t religious, but he prayed every day. He knew that whatever happened, everything about their lives would be different.

Doctors harvested healthy skin from her back, stomach, and scalp and grafted it onto her arms, legs, hands, and neck, but
she contracted pneumonia and needed a ventilator to breathe. On January 7, nine weeks after the attack, she died of complications from her burns: cardiovascular decompression, respiratory distress, and sepsis. The Bexar County medical examiner’s office declared the cause of death “complications from conflagration.” The manner of death was listed as homicide.

Texas law requires next of kin to identify a body that arrives from a hospital before cremation, but
some sights can permanently disorder your mind, and the undertaker judged that Loyd’s body was one of them. When Ward got to the funeral home, she told him she could
identify her daughter by the tiny dragon tattoo on Loyd’s ankle. But the undertaker advised her not to look at her daughter’s remains. He pushed a paper toward Ward, who signed it.

The next day in Maiwand, a man on a motorcycle blew himself up in the bazaar, killing two American soldiers and sixteen Afghans, including an interpreter, and ripping open Jack Bauer’s stomach. Jack would spend the next six months in the hospital with a colostomy bag. It was the worst attack yet on the Americans in Maiwand, and after it happened, the soldiers of Comanche Company steered clear of the bazaar. The company commander decided it wasn’t worth the risk.

T
he federal public defender came
to see Don Ayala the day he landed in prison. Michael Nachmanoff had a throaty voice, a second-degree black belt in karate, and a keen ear for dramatic stories. The son of a distinguished Foreign Service officer, he had spent part of his childhood in London, where he’d watched Shakespeare plays incessantly and longed for a career on the stage. The courtroom had claimed him instead.
He was fresh off a Supreme Court victory, and he knew the prosecutors and judges of the Eastern District of Virginia better than anyone else. Courtroom narratives didn’t get more dramatic than Ayala’s case, and Nachmanoff wanted to be personally involved. It was perhaps the most compelling human story he’d heard in his career as a defense lawyer.

The Justice Department had initially charged Ayala with second-degree murder. If convicted, he could have faced life in prison. In early
2009, he pleaded guilty to the lesser charge of voluntary manslaughter
to escape the possibility of a life sentence and to get the thing over with as quickly as possible. A guilty plea meant acknowledging wrongdoing; Ayala knew he had broken the law, but “wrongdoing” wasn’t what he would have called it. Nevertheless, the plea significantly lessened the possibility of a long jail term. He flew back to New Orleans, a convicted felon, to await his sentencing.

Victory in a legal case depends on which side tells the better story, and Nachmanoff had quickly discerned the nuance that made Ayala’s story so compelling. Ayala’s temperament was the opposite of what many people would have expected from a private security contractor freelancing in the lucrative world of wartime executive protection. He was no undisciplined cowboy. Instead, Nachmanoff thought, he had the biography of an old-school American hero who had been drawn back into service after September 11, protected senior American officials, and risked his life to guard the internationally anointed leaders of post-invasion Iraq and Afghanistan. He had killed an Afghan whose hands were cuffed behind his back, but that Afghan had just set fire to Ayala’s teammate, a gentle young American woman.
“Anyone possessing a shred of compassion would feel rage at the sight of this,” Ayala’s former Special Forces team commander wrote to the judge. “In this situation all sense of fairness is shattered, the rules of combat are broken.” In fact, the black plastic flex cuffs that had restrained the Afghan constituted the entirety of Ayala’s legal problem.
Had he shot the man while he was running the case would probably never have come before a judge. Ayala’s Afghan victim had a name—Abdul Salam—and like Ayala, he had a history. But Nachmanoff’s strategy was masterful. In addition to telling his client’s life story in as much sympathetic detail as possible, he would do all he could to make the flex cuffs and the Afghan who had worn them disappear.

Nachmanoff and his legal team collected forty-eight letters from
people who knew Ayala, including veterans, police, business owners, even a corrections officer.
The wife of one of Ayala’s fellow Karzai bodyguards wrote that after her husband had died of a heart attack in Afghanistan, Ayala had volunteered to escort his remains home and helped arrange his funeral. When Ayala learned that she’d pawned her jewelry to avoid being evicted, he’d sent money for rent and food. People wrote about how Ayala had opened his house in New Orleans’s Garden District to police and federal agents during Hurricane Katrina, offering them cold drinks, hot meals, and the first showers they’d had in days. A combat medic who had served with him in the Special Forces remembered Ayala as the guy who checked on everyone else, who gave you his water if you ran out and his last packet of instant coffee on a cold night. Yet Ayala was more than just a reliable friend. He had integrity, grit. Though he had known the medic for years, Ayala had refused to recommend him as a candidate for a State Department bodyguard detail because the man hadn’t performed well enough on the practical exercises.

A childhood friend wrote that in forty-five years, he had never seen Ayala lose his temper. Friends told stories of his refusal to tangle with French Quarter drunks or racist guests at family gatherings, preferring civil conversation to a fight. Late one rainy night, a New Orleans police officer wrote, he had seen Ayala intervene to protect women at a bus stop from a large, threatening man. When Ayala asked the man to stop bothering the women, the man lunged at him. Instead of fighting back, Ayala “took a defensive stance and kept the man at a distance by shoving him away” until the police could get close enough to help.

The most powerful letter came from Paula Loyd’s mother, who recalled Loyd’s emails home about the villages they had visited in Maiwand and the people they had talked to, about their attempts to better Afghan lives and to convince Afghans that America was looking out for them. “It is one of those horrible realities of life,” Patty Ward wrote, that
a young woman “who was very highly regarded by many governments who worked with her, a talented, optimistic, extremely well-educated negotiator, who left a void that is impossible to fill, should be victimized by someone who had not the slightest notion of the terribleness of the act he was performing.” When Ayala learned that Loyd had been burned, he must have thought of all that he knew about her—the good she had done and would have continued to do on America’s behalf, her contributions to a more humane approach to conflict, the pleasure of her company, “the glory of her smile”—and responded instinctively. It made perfect sense to Ward. While she waited for the plane carrying her wounded daughter, a hospital chaplain had asked if Loyd’s attacker had been “dispatched.” On hearing that he had, the chaplain had bowed his head and thanked the Lord. Standing next to him, Ward had murmured: ‘Thank you, Don.’

A person who commits the crime of voluntary manslaughter knows what he is doing, even if he acts out of passion. In the statement of fact that Ayala signed as a condition of his guilty plea, the prosecution and defense agreed that he had killed Abdul Salam intentionally
“upon heat of passion and without malice,” and that his act “did not result from accident, mistake or other innocent reason.” And yet, not wanting to leave any room for doubt, Nachmanoff added another element to his defense. In preparation for his sentencing,
Ayala spent two ten-hour days at his home in New Orleans talking with a human development and trauma specialist named Dr. Charles Figley.
Figley taught at Tulane University’s Graduate School of Social Work and headed its Traumatology Institute and Psychosocial Stress Research Program. He had edited a book on combat trauma and advised the Navy and Marine Corps on combat stress–related injuries.
Figley prepared a report based on his conversations with Ayala. It was filed under seal, and it became a linchpin of the defense strategy. In it, Figley sought to show that Ayala’s repeated exposure to violence
over many years had led to a psychic breakdown that had caused him to kill Abdul Salam.

In the upstairs study of his Garden District home, with his three Rhodesian ridgebacks dozing at his feet,
Ayala had told Figley about his childhood in Whittier, a middle-class suburb east of Los Angeles. He was the third of five children born to a government meat inspector and a teacher’s aide, themselves the descendants of Mexican immigrants who had sweated in slaughterhouses, meatpacking plants, and factories for a shot at the American dream.
Ayala and his brothers played baseball, football, and basketball and shared a single bedroom, roughhousing like a pack of young dogs. They rushed through chores so they could play war in the backyard, hurling lemons plucked from a tree as grenades.

It was an idyllic childhood. But in junior high, some kids pushed Ayala up against a locker and asked what neighborhood he came from. The school had kids from all over, and they were just beginning to understand the geography that would define them. Ayala was thirteen, thin and small, but he had grown up with brothers and he knew how to fight.
He and his friends banded together, joining a neighborhood gang called Sunrise. Long before Ayala gained a reputation as a peacemaker,
fighting had been the way he survived. He fought in school and on his own time, in organized bouts or just because. He fought at a roller rink, at a movie theater, on a busy street. Sometimes the gangs would organize baseball or football games that devolved into fistfights. He grew into Sunrise organically, until he was so far gone that his older brothers grew afraid to acknowledge him in the hallways at school. Meanwhile, his neighborhood roughened. There were drive-by shootings.
Ayala pitched all through Little League and into high school and quarterbacked the football team. He was regarded as a leader in sports and on the streets, where he was sharp and watchful, a good fighter. He also liked to draw, and he was good
at it. He became a sought-after tattoo artist, using ink-dipped needles filched from his friends’ mothers’ sewing baskets and sterilized with a lighted match.

He started getting thrown out of school for fighting. He didn’t come home for days, and the more his mother nagged and yelled, the further he receded. His father set up chairs on the back lawn, sat him down, told him there would be consequences. His mother kicked him out of the house. He lived with classmates and their families. One friend, depressed and deep in drugs, tied a sheet around his neck and jumped out a window. Ayala, then seventeen, came home and found him. When the holidays rolled around, he would leave the home of whichever friend he was staying with so the family could celebrate together. He went to the movies or walked the streets alone.