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This is the latest in a series of Marine Corps Times stories on the controversial handling of the Scout Sniper cases. ■Congressman takes interest in complaint against Marine Corps commandant, legal advisers ■Attorneys: Important evidence kept from defense in Marine Corps urination case ■In Taliban-urination case, Marine's attorney seeks to question the commandant, other brass ■Sniper prosecutions tainted, attorneys argue ■Politics, privilege and promotion ■Editorial: No place for favoritism
Marine Corps Commandant Gen. Jim Amos stripped a three-star general of his authority to prosecute Marines implicated in a war-zone scandal after the general refused to boot them from the service as Amos demanded, according to documents obtained by Marine Corps Times.
The documents include a signed declaration by the three-star, Lt. Gen. Thomas Waldhauser, and corroborate earlier allegations by a Marine attorney and whistleblower who alleges that Amos manipulated the legal process in the cases to ensure tougher punishments for the Marines involved and, along with others at Marine Corps Headquarters, sought to cover up their actions after the fact.
The revelations raise questions about the fairness of the legal proceedings related to a video showing four scout snipers urinating on dead insurgents in Afghanistan, and the competence with which the cases against them and four other Marines have been handled.
Waldhauser, now the senior military adviser to Defense Secretary Chuck Hagel, headed Marine Corps Forces Central Command in February 2012 when Amos removed him as the consolidated disposition authority for prosecuting the urination cases and instead gave that responsibility to Lt. Gen. Richard Mills, commanding general of Marine Corps Combat Development Command.
Just days before the switch, Amos and Waldhauser met overseas to discuss the cases and their expected outcomes, according to a signed statement by Waldhauser filed in military court by attorneys for Capt. James Clement, who along with Sgt. Robert Richards faces court-martial on charges stemming from the urination incident.
The commandant wanted the Marines "crushed," Waldhauser says in his statement, and asked if the steps Waldhauser was taking would result in their dismissal from the Corps. When Waldhauser pushed back, the statement continues, Amos threatened to remove him from the case, he said, and later directed the assistant commandant to deliver the news to Waldhauser that he was doing exactly that.
The commandant's decision to reassign the cases was not explained publicly before now. In May, a source within the commandant's office told Marine Corps Times that Waldhauser was removed from the job because his future role as the defense secretary's adviser was of supreme importance and he needed time to prepare. That explanation proved untrue.
In the 15 months after Amos and Waldhauser met overseas, six Marines were disciplined as a result of the urination incident. Two of them were court-martialed and the other four accepted nonjudicial punishment, never knowing the scope of the commandant's involvement behind the scenes.
In a legal motion filed July 23, Clement's defense attorneys, John Dowd and Maj. Joseph Grimm, asked that the case be dismissed due to "unlawful command influence by the commandant" and other senior Marine officials close to him. The motion includes Waldhauser's statement, along with dozens of emails and other official correspondence between Marine officials, and the whistleblower complaint to the Defense Department inspector general.
All of it, Clement's attorneys argue, shows that the commandant and others tainted the legal process from the outset and made a calculated effort to conceal having done so, compromising the integrity of the legal process and the rights of the accused to a fair trial.
Neither Waldhauser nor the commandant would comment on the matter.
The urination video was made July 27, 2011, by members of the scout sniper team assigned to 3rd Battalion, 2nd Marines, who were deployed to Afghanistan's Helmand province from Camp Lejeune, N.C. It surfaced online in January 2012, after the unit returned home, and investigators soon learned several related videos and "trophy" photos also existed.
Amid the uproar, Waldhauser contacted Marine Corps headquarters and offered to oversee the cases, logical because MARCENT has oversight of Marine operations in the war zone. Amos agreed, according to Waldhauser's statement, and wrote a memorandum indicating Waldhauser would "exercise completely independent judgment on the disposition of these cases."
Waldhauser states he assembled his legal team and tasked them with researching how the military addressed previous cases "of this sort."
"Although not as egregious as the desecration cases," he said in his statement, "I was informed the punishment in cases involving 'war trophies' or unauthorized photographs of enemy corpses, etc had been in the range of nonjudicial punishment and letters of reprimand. That said, I considered the 3/2 desecration cases to have been more aggravated and thus may have warranted disposition at a higher forum."
But Waldhauser concluded none of the cases rose to the level of general court-martial, which would be comparable to felony criminal trials in the civilian court system and could result in hefty jail time and dishonorable or bad-conduct discharges.
Within weeks, and after conferring with investigators, Waldhauser emailed Amos to report his progress and outline "tentative plans" for dealing with the four enlisted scout snipers visible in the urination video and the enlisted combat engineer who recorded the incident. There would be no general courts-martial, Waldhauser noted, and it appeared Richards, one of the sergeants in the urination video, would likely accept having the case handled as nonjudicial punishment or at a summary court-martial, which can result in up to a month of jail time and loss of rank.
Amos and Waldhauser agreed to meet, Waldhauser told attorneys in his statement, and Waldhauser assumed they would discuss his recent progress report and whether he should move forward with the cases based on the available evidence or wait until the Naval Criminal Investigative Service completed its investigation several weeks later. He was unprepared for how their discussion played out.
The generals were on separate trips to the Middle East and met in private "on or about 7 or 8 February 2012," Waldhauser recalled in his statement.
"I do not necessarily remember the exact words or sequence of what was said, but the CMC [or commandant] did make a comment to the effect that the Marines involved needed to be 'crushed,'" Waldhauser recalls in his statement, provided to Clement's and Richards' attorneys. "The CMC went on to say that he wanted these Marines to be discharged from the Marine Corps when this was all over."
Of the five Marines involved in the urination video, two were staff sergeants and three, including the cameraman, were sergeants. Waldhauser told Amos that he was considering nonjudicial punishment or summary courts-martial for the sergeants, according to his statement, and special courts-martial for the more senior Marines, meaning they would face up to a year of jail time, loss of rank and a bad-conduct discharge.
According to Waldhauser's statement, Amos then asked whether that plan would result in the accused Marines being thrown out of the Corps. No, Waldhauser told him, not for the sergeants. And while the two staff sergeants could be discharged as a result of the special courts-martial, such an outcome was not guaranteed. But, Waldhauser recalled telling the commandant, Amos could decide to end their careers by denying them re-enlistment.
Waldhauser's statement continues: Amos then asked "something to the effect of why not or will you give all of them general court-martials. I responded, 'No, I am not going to do that.'"
Waldhauser headed home to the U.S. hours later. During a refueling stop in Europe, he received a message to call Gen. Joseph Dunford, then the Marine Corps' assistant commandant. Dunford delivered the bad news: Amos had decided to take away the urination cases from Waldhauser. Dunford reported Amos was "upset and regretted the conversation," Waldhauser told the attorneys.
Never before in 34 years as a Marine officer had he been stripped of such a responsibility, Waldhauser said in the statement, adding that nothing about his discussion with the commandant would have jeopardized his ability to remain independent. Still, the statement reads, he did not question the decision and never discussed the matter with his replacement, Mills.
Privately, in a Feb. 10, 2012, memo to Waldhauser, Amos acknowledged acting inappropriately: "I believe some of my comments during our recent conversation could be perceived as possibly interfering with your independent and unfettered discretion to take action in these cases. To protect the institutional integrity of the military justice process, and to avoid any potential issues, I withdraw your [consolidated disposition authority] designation."
Two days later, during a video conference with Waldhauser, Amos "admitted that he had crossed the line and that replacing me ... was how he was going to fix that," Waldhauser's statement reads. "He told me that if ever asked about the incident, I should simply tell the truth."
The cover up
Amos' memo formalizing Waldhauser's removal was prepared by the Judge Advocate Division at Marine Corps headquarters. The Marine Corps provided a copy to Clement's and Richards' attorneys at the end of June, Clement's motion says, two weeks after the attorneys contacted Waldhauser to learn about his meeting with the commandant.
Officials at Marine Corps Combat Development Command volunteered a copy to Marine Corps Times on July 12 and responded to questions about its timing by saying the service "released the memorandum as part of the discovery process" in the remaining urination cases. Neither Mills nor his staff was aware of the memo previously, said Col. Sean Gibson, the command's spokesman.
But legal experts say the Marine Corps had an obligation to produce the memo months ago as part of the legal filings in all of the urination cases, and should have been made available to each defense team. Clement's motion to dismiss suggests numerous requests for such evidence went unfulfilled and that Mills' team was ordered not to speak to Waldhauser's.
Maj. James Weirick, the legal adviser to Mills who complained to the Defense Department inspector general, said had he and his colleagues been allowed to talk to Waldhauser's legal team they probably would have learned of Amos' memo. He blamed the commandant's legal staff for impeding his organization's ability to honor those requests. Weirick filed a complaint with the Defense Department inspector general in March accusing the commandant and his team of seeking to influence the outcome of these cases, and has subsequently alleged that that members of the commandant's staff tried to intimidate him and prevent him from alerting Congress about his complaint.
Upon learning of Amos' memo to Waldhauser, Weirick emailed his former boss and fellow attorney, Col. Jesse Gruter, saying the two "were used by HQMC as part of an over-arching plan, or conspiracy, to deprive these Marines of their rights." Copied on that email are several military and civilian attorneys involved in the urination cases — including the commandant's four legal advisers, all named in Weirick's IG complaint: Maj. Gen. Vaughn Ary, Col. Joseph Bowe and civilians Robert Hogue and Peter Delorier.
"At this point, I am making every effort possible to withdraw or abandon my association with this effort to violate the rights of these Marines," Weirick's email says. "... Additionally, for those cases that have already pleaded, I will take all remedial steps I am able to take to remedy the previous discovery violations. The steps I have taken thus far, contacting the IG, members of Congress, and counsel for the accused, do not seem adequate to end this conspiracy."
Clement and his attorneys hope the new evidence compels the Marine Corps to drop its case against him. His trial is scheduled for November.
It is unclear how Richards' attorneys intend to use Waldhauser's statement and Amos' memo. His trial could begin as soon as August.
When asked what bearing these developments could have on the six urination cases already resolved, Gibson said "It would be premature to discuss [them] at this point since we have not discussed this issue with any defense counsel."
However, a Marine official with knowledge of the proceedings said that for the two staff sergeants who've already been court-martialed and busted down in rank, the emergence of new evidence could be grounds to request new trials. The four Marines who accepted nonjudicial punishment, however, would have to petition the Board for Correction of Naval Records, the official said.
As for Amos and his legal advisers, it is unclear what repercussions they could face. At least one member of Congress, Rep. Walter Jones of North Carolina, has taken an interest in Weirick's IG complaint, which is not yet resolved.
The prospect of unlawful behavior within the commandant's office is of deep concern to the congressman, he told Marine Corps Times earlier this month. Jones asked the IG to be diligent in its review of Weirick's complaint and do what's necessary to "restore dignity to the commandant's office."