How the US Refused to Help Find a Missing IDF Soldier - Steven Emerson

by Steven Emerson

Interviews with U.S. law enforcement officials, Israeli military officials and a review of official documents suggest that the U.S. denied Israel's request for information that could have led to IDF Sgt. Shaul Oron, who went missing in Gaza in July.

Staff Sgt. Shaul Oron, killed in Gaza in July

For the Israel Defense Forces it was one of the bloodiest battles of the entire operation. On July 19 and 20, days after Israel launched a ground offensive in Gaza, an Israeli armored personnel carrier carrying nine Golani Brigade soldiers crossed into the Hamas stronghold of Shujaiyya in southern Gaza. It was an older APC, built in the 1970s, and it was in dubious mechanical condition. In addition, the armor protecting the APC was several inches less thick than the newer models in the IDF. That such an older, outdated and unprotected APC was sent into battle would later become the subject of a bitter controversy within the IDF. These conditions set the seeds for a national tragedy that still haunts Israelis today.

Sometime early Sunday morning, July 20, the APC stalled out in one of the Hamas neighborhood's densely packed streets. Two soldiers got out to see if they could fix the APC. But this was Hamas' backyard: Scores of Hamas terrorists were densely packed throughout the neighborhood, in apartment buildings, mosques, tunnels, underground passages and alleyways. 

And then Hamas struck: Hamas terrorists fired an anti-tank missile at the APC, which penetrated the thin armor and apparently hit a stockpile of munitions inside the vehicle. The APC exploded in a fiery blast; IDF soldiers who witnessed the explosion were helpless. No one could have survived. Still, even worse, an IDF drone showed that up to half a dozen Hamas terrorists had converged on the burning vehicle which prevented an immediate effort to retrieve the APC along with the bodies of the soldiers inside. In addition, the prospect of another explosion inside the APC kept other IDF soldiers from the Golani Brigade at bay. 

An exclusive report on Walla.com revealed new details obtained from a classified IDF report of the incident. It described what happened next:

"At that point, the Golani Brigade's command, assessing that the soldiers in the APC had been killed, ordered other soldiers in the field to converge on the APC and evacuate body parts from within the vehicle. However, the soldiers were wary of nearing the APC, as they feared weaponry inside could set off a secondary explosion at any moment. The soldiers also reported hearing shouting in Arabic in the vicinity of the APC," according to Walla.

"Golani Command decided to summon IDF combat engineers to erect a dirt barrier around the APC and seclude it from the surrounding area."

"The subsequent IDF investigation concluded that Hamas gunmen had already reached the vehicle and taken parts of IDF Staff Sgt. Oron Shaul's body by this time. Hamas later released an ID photo of Shaul, along with his army ID number."

The IDF retrieved the APC but they made a grim discovery when identifying the remains of the soldiers who perished inside. The IDF could only find the remains of six soldiers, knowing that seven had been inside when the vehicle exploded.

Shortly thereafter, Hamas made a startling announcement: The terrorist group claimed it had kidnapped the seventh soldier, Staff Sgt. Oron Shaul. The military wing of Hamas broadcast a statement saying that "Israeli soldier Shaul Oron is in the hands of the Qassam Brigades." 

To prove their claim, Hamas released photos of the soldier and other items he carried on his person. To further bolster the claim, Hamas hacked into Shaul's Facebook page and posted claims in Arabic, Hebrew and English that they had him. Hamas also taunted the Israeli public with cruel and sadistic propaganda on Shaul's hacked Facebook page.

On July 22, as international news reports carried Hamas' claim of Shaul's capture, the IDF really had no idea whatsoever what happened to the Israeli soldier. The only statement made by the IDF at that point was that Shaul was missing in action. Even two days later, the IDF still did not know if Shaul had been kidnapped by Hamas or whether he was dead.

Kidnapping an Israeli soldier is one of the highest priorities for Hamas, since Israel has in the past proven willing to trade large numbers of imprisoned terrorists to get back just one soldier, as happened in the case of Gilad Schalit. The news of Hamas' alleged kidnapping triggered wild celebrations in Gaza. 

The IDF and Israeli intelligence agencies initiated a massive man hunt for Shaul, but to no avail. "We simply did not know whether he was alive or not," an Israeli military official told me, "or whether Hamas had killed him or whether Hamas had simply kidnapped his body. But we had immediately set up a dragnet around the entire area to encircle the terrorists and prevent them from leaving the general area. We knew we did not have much time." 

The dragnet proved porous, as Hamas terrorists had many ways of escaping especially through the network of underground tunnels they had built. 

But in hacking Shaul's Facebook page, Hamas may have inadvertently given away the location of the terrorists who had Shaul or his body. That's because whenever a Facebook account is accessed, Facebook's servers would automatically keep a record of the Internet Protocol address where the account was accessed. IP addresses are leased, which then can provide a geographic location of the IP address where the Facebook account was hacked. In addition, there was also a remote possibility that Shaul had been carrying his cell phone although Israeli soldiers are not supposed to take their cell phones into battle. But if he had done so, then it was also theoretically be possible that Hamas had hacked into the mobile Facebook application on Shaul's phone. If the Israelis could obtain the Facebook server data as soon as possible, they thought they might have had a chance to find the whereabouts of the Hamas terrorists who took Shaul. 

Israel made an urgent appeal to the FBI for help in trying to determine the remote source or information that would be stored on Facebook servers indicating the location where Shaul's page had been hacked. Upon receiving the request from Israel in Washington on July 21, the FBI immediately issued a "preservation letter" to Facebook ordering them to preserve all data saved on their server pertaining to the Shaul's account. 

At 4:25 p.m. on July 21, the FBI contacted a United States Attorney's Office in a nearby district to initiate the legal process to get a court order to serve Facebook for server information on the account belonging to Israeli soldier Oron Shaul.

"Due to HAMAS status as a Designated Terrorist Organization (DTO), there is a great effort to locate those who kidnapped and/or killed ORON," read an FBI email to the U.S. Attorney's Office, "HAMAS is already using the kidnapping as propaganda, which is material support to a DTO." 

In the email, the FBI noted there was unusual activity on Shaul's Facebook account after the time of his kidnapping and said it needed more information from Facebook that it could only obtain with a court order to be able to fully determine what "HAMAS was doing with Oron's Facebook account and possibly his phone." Was the U.S. Attorney's Office in a position, the FBI wanted to know, to immediately obtain a court order for the FBI to deliver to Facebook? 

Shortly thereafter, the U.S. Attorney's Office thought it was near ready to be able to immediately obtain a court order. But before it could obtain such an order, it needed specific information on Shaul's Facebook account that it could present to the judge. 

At the same time, back in Israel, the reports of the possible kidnapping began to dominate Israeli news as the Israeli public became more anxious by the hour. The IDF meanwhile would not confirm that he had been kidnapped or that he was dead or alive, only that he was missing in action. 

To be sure, the IDF was using all other available intelligence means -- technical and human -- to try to determine the fate of its missing soldier. The attempt to secure information via the soldier's Facebook account was just one of the multiple efforts, but it was deemed a "worthy shot" by a senior Israeli military official. So as these other efforts were underway, time was ticking away on the Israeli request to the FBI to get vital Facebook server information on the Hamas terrorists who had either kidnapped Shaul or seized his remains. The more time that time elapsed, the lesser the odds of finding the soldier. 

But the next day, July 22, the U.S. Attorney's Office received a startling response from the FBI: "Thank You for your effort, input and assistance. I regret to inform you we have been denied approval to move forward with legal process. We were told by our management we need a MLAT [Mutual Legal Assistance Treaty] in order to continue to assist our partner with the request in question." Those words put an immediate halt to the Israeli request. 

An MLAT is a standardized legal agreement between the United States and other countries that spells out the legal and diplomatic protocols in processing requests for legal information pertaining to court cases in either the United States or in another country. MLATs go through various bureaucratic channels, usually take weeks to process and would generally be used for non-pressing legal matters in which the United States or another country was carrying out a legal process such as a prosecution involving a citizen of another country. 

Prosecutors familiar with their use say that an MLAT would definitely not be used in an urgent life-or-death intelligence or counter-terrorist incident, especially with a close ally such as Israel. "In a pressing court matter, there is no way the USG would invoke an MLAT with a close ally," said a veteran prosecutor who has worked on international counter-terrorism cases. 

Law enforcement officials knowledgeable about this incident say both prosecutors and FBI were shocked at the sudden turn of events. "This sudden reversal was devastating," said one law enforcement official who was intimately familiar with this incident. "For those working this case, they felt this decision was tantamount to a death sentence. Nothing less." 

And thus, the FBI was never able to supply Israel with any information on Shaul's Facebook account that might have led to the location of the soldier or his remains that had been seized by Hamas.

It's also clear that there was no guarantee that this information, once obtained, would have located the terrorists or Shaul. 

Three days later, on July 25, after an exhaustive forensic investigation, the IDF concluded that Staff Sgt. Oron Shaul was dead. 

"Today, July 25, 2014, at 14:40, a special committee lead by the Chief Rabbi of the IDF, announced the death of the IDF infantry soldier, Staff Sgt. Oron Shaul, who was killed in battle in Gaza on July 20, 2014," the statement said.

To this day the soldier's body, as well as that of another soldier who died in battle named Lt. Hadar Goldin, still remain in the hands of Hamas. Recent reports indicate Hamas is interested in negotiating a swap for Palestinian prisoners held by Israel and that Israel has appointed an IDF officer to head up these negotiations.

Lingering questions remain from this episode. Senior law enforcement officials, on condition of anonymity, have told me that the withdrawal of authority to the FBI to retrieve the Facebook records for Israel came from the Attorney General's office. But why would Eric Holder's office reverse such a request, especially since it was so urgent and came from such a close ally? And if it was not the attorney general's office that reversed the request, who did? It could only have come from someone very high up in the U.S. Government. 

Steven Emerson is executive director of the Investigative Project on Terrorism and the author of six books on national security and Islamic terrorism.

Source: http://www.israelhayom.com/site/newsletter_article.php?id=20789

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