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Marine Corps commandant, legal staff targeted in IG complaint

Major alleges brass manipulated legal system, showed favoritism

May. 19, 2013 - 06:00AM   |  
Commandant Gen. Jim Amos speaks to Marine officers and staff NCOs during the Heritage Brief at the Pentagon in 2012.
Commandant Gen. Jim Amos speaks to Marine officers and staff NCOs during the Heritage Brief at the Pentagon in 2012. (Cpl. Cody A. Fodale/Marine Corps)
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Commandant: Who We Are and Who We Are Not: Gen Amos & Sgt. Maj. Barrett Speak on Marine Corps Heritage and Values
Lt. Col. James B. Conway (Cpl. Cody A. Fodale/Marine Corps)

The top Marine general and four of his legal advisers are implicated in a complaint to the Defense Department Inspector General charging they inappropriately inserted themselves into the prosecution of cases stemming from the infamous video showing scout snipers urinating on dead insurgents in Afghanistan.

The complaint, filed by Marine Maj. James Weirick, an attorney assigned to Marine Corps Combat Development Command in Quantico, Va., alleges Commandant Gen. Jim Amos, or others acting on his behalf, deliberately sought to manipulate the legal process, effectively stacking the deck against the scout snipers in the video.

Weirick’s complaint, a copy of which was obtained by Marine Corps Times, also alleges Amos showed preferential treatment to ensure the promotion of then-Maj. James B. Conway, the son of Amos’ predecessor as commandant, retired Gen. James T. Conway. Conway was executive officer of the scout snipers’ unit, 3rd Battalion, 2nd Marines.

According to the complaint, Conway was initially placed on administrative hold once the video became public in January 2012. But while the unit’s commander, Lt. Col. Christopher Dixon, remained on administrative hold, Conway’s hold was released last year, after the case was discussed during an executive offsite meeting of the Corps’ top leaders, according to emails obtained by Marine Corps Times.

He was allowed to move from Camp Lejeune, N.C., to Marine Corps Base Hawaii in July 2012, and eventually took a coveted assignment as a battalion commander. Dixon remains on hold today, nearly a year later.

The complaint complicates an already sticky situation for Amos and the Corps, and will likely figure in the court-martial proceedings pending for two North Carolina-based Marines charged in connection to the urination video: Capt. James Clement and Sgt. Robert Richards.

At least six other Marines have been disciplined for their roles in the July 2011 urination incident, which exploded in a firestorm of controversy, at home and around the world, when it went viral on YouTube.Among the strongest reactions came from Amos himself, who launched into a tour around the Corps to deliver his “Heritage Brief,” in which he condemned the acts in the video, stressed the importance of ethical behavior and accountability, and pressed for aggressive responses to misbehavior.

The brief later became fodder for dozens of defense motions in all sorts of criminal cases, as defense attorneys charged it amounted to command influence in their clients’ cases.

Spokesmen for the IG, Lynne Halbrooks, and the commandant declined to comment on the complaint.

But a Marine spokesman at the Pentagon provided a brief statement in response to questions.

“It would be inappropriate for the Marine Corps to comment on allegations specifically related to ongoing DoD IG complaints or investigations,” the statement reads. “There are DoD prohibitions on providing anyone with the status and/or action(s) taken on any allegation.”

Swapping generals

Trouble began Feb. 10, 2012, one month after the urination video surfaced, Weirick alleges. Amos, unsatisfied with the approach taken by the three-star general overseeing the urination case, made a change, the complaint says.

Lt. Gen. Thomas Waldhauser, who at the time was commanding Marine Corps Forces Central Command, initially had control of the case. This was logical, as MARCENT oversees operations in Afghanistan and routinely serves as the convening authority in judicial matters tied to the war zone.

According to Guy Womack, the civilian defense attorney representing Sgt. Richards, Waldhauser was preparing to meet with his client when Amos made the switch.

Waldhauser intended to offer Richards nonjudicial punishment, Womack said.

Said Rachael Richards, the sergeant’s wife: “We had everything lined up to fly out on Valentine’s Day to meet with the general to receive his punishment. Then everything changed, and the Heritage Brief started soon after.”

Weirick’s complaint contends that once Amos learned Waldhauser intended to impose only modest punishments, the commandant reassigned the case to Marine Corps Combat Development Command and Lt. Gen. Richard Mills, Weirick’s commanding general.

A day before that change, a photo emerged showing other scout snipers in Afghanistan, some scruffy and in violation of uniform standards, posing with a Nazi “SS” flag. That incensed the commandant, who issued an apology “on behalf of the Marine Corps and all Marines.”

Soon after, Amos delivered his Heritage Brief for the first of 27 times, addressing thousands of officers and staff noncommissioned officers all around the world over the next several months.His presentation included images from the urination video — which Weirick’s complaint cites as an unfair use of evidence from an ongoing criminal trial — and references to his personal opinion about the case. According to Weirick’s complaint, the commandant said it was “behavior unbecoming a Marine.”

That, the complaint alleges, “makes it almost impossible for any of the accused to receive a fair trial.”

Womack, Richards’ defense attorney, also contends it was inappropriate to move the case from Waldhauser to Mills.

“The commandant had no business and no right to interfere,” he argues. “If the general for MARCENT can be trusted to fight a war for the Marine Corps — the most important job in the Corps right now — certainly the commandant can trust him to handle an NJP.”

Classified material

The IG complaint alleges the commandant’s legal advisers sought to classify evidence assembled in the investigation in an effort to “prevent or delay the disclosure of information before court-martial, to conceal violations of law, and prevent embarrassment to the United States Marine Corps.”

The complaint alleges that the commandant’s legal team ignored the recommendations of Weirick, his supervisor and four civilian security specialists employed by the Corps, whom the complaint describes as experts on classification matters.

Citing the same issues, Weirick also filed a report last month to the Department of the Navy Central Adjudication Facility, part of the Naval Criminal Investigative Service responsible for determining eligibility for security clearance. In it, he requests the agency determine whether the commandant’s lawyers, Col. Joseph Bowe, and civilians Robert Hogue and Peter Delorier, still merit their security clearances, and whether “they still possess the requisite reliability and trustworthiness such that entrusting them with access to classified information is clearly consistent with the interests of national security.”

In the report, Weirick alleges that on Feb. 27, 2012, Mills and his team were directed to classify the urination video along with several other videos showing Marines behaving inappropriately during that deployment. “Col. Bowe iterated that the investigation was to be classified and that this direction was coming directly from Gen. [Joseph] Dunford, then Assistant Commandant of the Marine Corps.”

At the time, the report states, Weirick protested on several grounds: The videos were “freely exchanged” among Marines, making it impossible to account for all the duplicates; Mills lacked the authority to classify the materials because, as the head of Marine Corps Combat Development Command, he is not an “original classification authority” — meaning he can’t order the material classified even if he wanted to; and finally, that the videos posed no direct harm to national security.

That last point is debatable. U.S. forces in Afghanistan were on high alert that week in the wake of deadly protests provoked by reports that personnel at Bagram Air Base had inadvertently burned copies of the Koran, Islam’s holy book, and other religious materials. Riots throughout the country left hundreds wounded or dead, including at least four U.S. troops. So offensive materials in the wrong hands could have been viewed as potentially dangerous.

Mills’ legal team approached Marine Corps Systems Command, the only post at Quantico with classification authority, but officials there said they would be uncomfortable getting involved, according to Weirick’s report.

Two days later, Weirick’s supervisor, then-Lt. Col. Jesse Gruter, informed Bowe that Mills was willing to keep the material “unclassified/for-official-use-only,” the report says.

“But we understand that’s not our determination to make,” Gruter told Bowe in an email included in Weirick’s report. “If CMC directs that it be classified, we will forward the investigation.”

That was inconsequential. Lt. Gen. Richard Tryon, deputy commandant for Plans, Policies and Operations at the Pentagon, had already signed a memorandum classifying the videos and investigation. Emails exchanged between the Corps’ civilian security specialists disputed Tryon’s decision on the grounds that it offered no reason for the classification, as required.

Weirick’s objections, and those of the civilian security specialists, went unanswered, the report says.

Then, last June, Weirick petitioned a classification authority outside the Marine Corps. Army Maj. Gen. Karl Horst, chief of staff at U.S. Central Command, reviewed the investigation and the videos and “properly declassified” them, Weirick’s report claims.

“This was, in no way, an unintentional misclassification or simple mistake,” Weirick’s report alleges. “This was a coordinated effort to circumvent the proper classification procedures. ... These individuals purposefully avoided any input or advice from security personnel in order to wrongfully classify this information.”

Womack called the classification issue a “minor impediment.” It slowed, but did not stop, him from accessing the information he needs to formulate a defense for Richards, he said. As a retired Marine officer, Womack said he has top secret clearance — even now as a civilian. He had to wait for his clearance to be reinstated, he said.

The urination video and several others were shown during Richards’ Article 32 hearing at Camp Lejeune in March. They included footage of the scout snipers riding on top of tanks with the bodies of the three men on whom they had urinated earlier, Richards throwing a grenade over a 10-foot-wall and a grenade launcher that appeared to have accidentally discharged due to malfunction.

The former commandant's son

Weirick also alleges in his complaint that Amos “may also have engaged in selective prosecution” in the case, pointing out that Conway was promoted to his current rank and allowed to take a new assignment while other officers in the unit remain in limbo.

James B. Conway, then a major, reported for duty as the XO in June 2010. He served under Dixon during the unit’s deployment from February to August 2011. Conway received a Bronze Star for meritorious service in Afghanistan. His award citation credits him with performing “all duties of the Executive Officer in a superior fashion,” and overseeing operations in Musa Qala district while Dixon focused on neighboring Now Zad, where 3/2 Marines also operated.

“His greatest contribution was his ability to act as the Battalion Commander for extended periods and assume command and control of the Musa Qal’eh [Musa Qala] District, which encompasses two-thirds of the battalion’s combat power,” the citation said of Conway. “The result allowed the Battalion Commander to focus on the failing governance of Now Zad District in order to improve Afghan performance, preparing it for transition to full Afghan control.”

The urination video was shot in Sandala, a village in Musa Qala district, Marines testified during Richards’ Article 32 court hearing in March.

The video was recorded on July 27, 2011, and appeared online and went viral in January 2012, about two months after Conway received the Bronze Star.

Dozens of Marines in the battalion had their promotions and follow-on assignments put on hold as the investigation unfolded last year, according to emails between general officers obtained, independent of Weirick’s complaint, by Marine Corps Times. Six members of 3/2’s leadership were initially put on hold, including Dixon, Conway and Sgt. Maj. Dennis Downing, the unit’s top enlisted Marine.

Marine Corps Times also obtained a May 31, 2012, position paper sent to Amos by Gen. John “Jay” Paxton, then the three-star commander of Camp Lejeune’s II Marine Expeditionary Force, saying all six leaders put on hold were questioned at length as part of the investigation. There was no evidence any of them knew about the violations of the law of armed conflict of which the scout snipers were accused, Paxton said.

Paxton’s position paper, which was sent to Amos, Dunford and a host of other generals, says it was recommended that Conway and 1st Lt. Edward Leslie, commander of the battalion’s 81mm mortar platoon, be released of all holds.

The email to which Paxton’s position paper was attached, also dated May 31, 2012, and obtained by Marine Corps Times, says the Corps’ top general officers discussed how the 3/2 cases should be handled last year during the Executive Offsite, a quarterly meeting that includes three- and four-star generals and Sergeant Major of the Marine Corps Mike Barrett. They recommended unanimously to “grant well supported exceptions” to Conway and Leslie.

In the email, Paxton told the commandant “your guidance after the EOS was clear and it was communicated and was being executed.” The note appears to indicate that there was some confusion about the decision to go forward with Conway’s promotion, and cites the release of a “tentative” promotion list.

“In no way was there ever intent to deviate from your guidance or present a fait accompli on any individual or case. ... Per the recommendations proffered in the attachment please know that all of us are united and convinced that these [courses of action] are best for our Corps as an institution, for you as our Commandant, and for all individuals in the proper execution of due diligence and justice.”

As for Conway and Leslie, the position paper asserts: “There are neither facts, evidence, nor opinions that these two officers were aware of the urination incident nor the photography of it,” wrote Paxton, who received his fourth star and became the Corps’ assistant commandant in December. “In addition, the scope of their responsibilities, geographic location and battlefield circulation did not put them in contact with or have influence over the Scout Sniper Team.”

In contrast, the legal status of four other leaders, including Dixon, was to be kept on hold until the trials and administrative actions against other Marines played out, Paxton’s paper said.

The position paper included a “Summary of CMC Action,” referring to the commandant of the Marine Corps, and detailing how each case would be handled and leaving space for the commandant to approve, disapprove, and/or comment on each of three recommended actions.

However, a few days later, the commandant’s top uniformed attorney, Maj. Gen. Vaughn Ary, responded, saying that the commandant’s intent was not to make himself part of the decision process, but to leave the necessary actions to Paxton and Mills.

Paxton responded: “No sweat; we’ll work through it. Think I’m very clear on CMC intent.”

Dixon had been selected for colonel and to participate in an academic program at the Justice Department in Washington, but both moves have remained on hold pending conclusion of judicial proceedings.

Emails to Lt. Col. Conway were not returned. He served as the training officer for Lejeune’s 2nd Marine Division after returning from Afghanistan, and became the future operations officer for 3rd Marine Regiment, in Hawaii, in July 2012. He now commands 2nd Battalion, 3rd Marines, an infantry unit based there.

A spokesman for his father said Gen. Conway had not spoken to his son about the matter and declined to comment.

Other legal questions

Weirick is not the first to raise questions about whether the commandant’s firm hand with Marines has breached the law. As Marine Corps Times and other media outlets reported in October, at least four military judges have ruled Amos committed apparent unlawful command influence by nature of his tough talk in the Heritage Brief.

In blasting bad behavior by Marines and urging others to hold those involved accountable, the judges ruled, he potentially violated the rights of those charged with crimes by pressuring jury pools to find Marines guilty.

The judges in those four cases did not find that the commandant committed actual unlawful command influence, which could have led to the cases’ dismissal. They instead offered defense attorneys remedies to mitigate the damage, such as allowing for extended questioning and additional dismissals of jurors who are seen as potentially biased.

To date, nearly 80 claims of unlawful command influence have been made since Amos’ Heritage Briefs, but none has resulted in a case’s dismissal, said an official at Marine Corps headquarters who asked not to be named.

A spokesman for the commandant, Lt. Col. Joseph Plenzler, told Marine Corps Times in October that Amos’ intent with the Heritage Brief was to “change behavior,” Plenzler said, “not to influence the outcomes of any particular courts-martial.”

Weirick’s complaint underscores once more the fine line Amos and other leaders walk in trying to balance responsibility to lead against the strict rules in place to keep the military justice system fair.

Weirick declined to be interviewed, but provided a short statement by email.

“Everything in my complaints is true,” he said. “I iterate my oath that all the statements are true to the best of my recollection.”

Staff writer Gina Harkins contributed to this report.

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