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Attorneys: Important evidence kept from defense in Marine Corps urination case

Marine officer's legal team calls out brass for witness testimony, sensitive emails

Jun. 30, 2013 - 06:00AM   |  
Attorneys for Capt. James Clement, right, say the Marine Corps has taken extraordinary measures to suppress evidence that will exonerate their client. They've alleged the commandant's top legal adviser, Robert Hogue, left, inappropriately ordered evidence to be classified in the criminal cases stemming from a vulgar war-zone video.
Attorneys for Capt. James Clement, right, say the Marine Corps has taken extraordinary measures to suppress evidence that will exonerate their client. They've alleged the commandant's top legal adviser, Robert Hogue, left, inappropriately ordered evidence to be classified in the criminal cases stemming from a vulgar war-zone video. ()
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The Marine Corps has taken extraordinary measures to suppress evidence in its prosecution of the only officer charged in connection with a vulgar war-zone video that surfaced online last year, his attorneys allege.

Capt. James Clement is charged with dereliction of duty and conduct unbecoming an officer because four enlisted Marine scout snipers in his unit recorded themselves urinating on Taliban corpses in Afghanistan’s Helmand province on July 27, 2011. Clement’s case is one of two remaining after six others were resolved.

The video has proven an embarrassing ordeal for the Marine Corps and some of its senior leaders — including the service’s commandant, Gen. Jim Amos, who is implicated in an internal complaint made to the Defense Department Inspector General alleging he, or others acting on his behalf, manipulated the legal process to ensure stiff punishment of the Marines involved.

Court documents and emails obtained by Marine Corps Times suggest the Marine Corps has sought to block Clement’s attorneys, John Dowd and Maj. Joseph Grimm, from accessing evidence they say exonerates their client and would ensure he receives a fair trial. The material includes witness statements recorded more than a year ago during separate investigations into the urination video — one conducted by the Corps, the other by the Naval Criminal Investigative Service — plus related communication between the commandant, his legal advisers and several Marine generals.

The witness interviews, including testimony by Clement and others in his unit, were inappropriately classified as “secret” on orders from the commandant’s civilian counsel, Robert Hogue, and the Marine Corps has continued to make it difficult to access the materials despite subsequent orders to declassify them, according to a motion filed June 21 by Dowd and Grimm. They’ve asked the government to make the evidence available or justify why it must be classified.

According to emails exchanged in May between several Marine attorneys, the communication between Amos, Hogue and others is relevant to accusations that senior Marine officials deliberately and unlawfully sought to influence the outcome of the urination cases. In one of these messages, a staff judge advocate says “there does not appear to be any action on the part of the Government that is not somehow contaminated” by unlawful command influence.

In a written statement, Dowd said he and Grimm want to “uncover the truth hidden by the abuse of the classification process to deny [Clement] the evidence that will acquit him.”

“The evidence includes his voluntary recorded statement provided in a grueling four-hour interrogation,” Dowd added. “The evidence includes the recorded sworn statements of his comrades which acquit him of dereliction of duty and unbecoming conduct. The evidence includes recorded testimony which exposes [conflicting statements] — all in violation of [Clement’s] constitutional right to a public trial, to confront witnesses against him and to call witnesses in his favor.”

A spokesman for the commandant’s office declined to comment. Prosecution of these cases is overseen by Marine Corps Combat Development Command in Quantico, Va. A spokesman there, Col. Sean Gibson, provided a statement in response to questions.

“The government takes its discovery obligations seriously and will ensure that requests by the defense are addressed appropriately,” he said. “Motions requests are part of ongoing litigation between the government and the accused and commenting on them could compromise the integrity of the military justice process.”

The defendant

Clement is the highest ranking Marine to face court-martial because of the incident. All eight men known to have faced disciplinary action were members of 3rd Battalion, 2nd Marines, an infantry unit based at Camp Lejeune, N.C. Sgt. Robert Richards, one of the four scout snipers in the video, also awaits court-martial.

The urination video is one of several the scout snipers made that day depicting a host of violations, from photographing the dead bodies to needlessly firing weapons. Clement was on patrol with them, serving as the communications link between the sniper team and fellow officers at a nearby command center, but maintains he was neither aware of nor present during any wrongdoing.

After Clement’s Article 32 hearing in April, the investigating officer recommended he receive nonjudicial punishment for failing to stop the Marines from firing their weapons. Clement refused, setting the stage for his court-martial, now scheduled for November.

The 10-page motion from his attorneys is accompanied by more than 80 pages of supporting documentation, including the inspector general complaint alleging wrongdoing by Amos, Hogue and three other legal advisers to the commandant: Maj. Gen. Vaughn Ary, Col. Joseph Bowe and civilian Peter Delorier. First reported by Marine Corps Times in May, the complaint was filed by Maj. James Weirick, who serves as an attorney for Marine Corps Combat Development Command and has been heavily involved in each of the cases stemming from the urination video.

That's classified

Weirick’s complaint was filed with the Pentagon inspector general in March. It alleges the commandant’s legal advisers sought to classify evidence assembled during 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.” That, Weirick contends, breaches an executive order, signed by President Obama, defining what constitutes classified national security information and what does not.

The videos and investigations were classified Feb. 29, 2012, by Lt. Gen. Richard Tryon, deputy commandant for Plans, Policies and Operations at the Pentagon. Weirick contends Tryon did so at the direction of Hogue, Delorier and Bowe, calling it a “coordinated effort to circumvent proper classification procedures.”

At that time, U.S. forces in Afghanistan were on high alert in the wake of deadly protests provoked by reports that personnel at Bagram Air Base 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. Among them were an Army officer and an Air Force officer killed in an attack at the Afghan Interior Ministry in Kabul.

The week before Tryon signed a memorandum classifying the videos and investigations, Weirick’s supervisor, then-Lt. Col. Jesse Gruter, emailed Col. Donald Riley, who was serving as the legal adviser to Gen. John Allen, then the commander of coalition forces in Afghanistan. Gruter was looking to get a sense for the level of involvement he could expect from officials in the war zone.

Riley’s response is illuminating. The colonel said Allen grew concerned upon learning other videos were discovered during the urination investigation. Allen, Riley said, addressed his concerns with Gen. James Mattis, then the head of U.S. Central Command. From there, Riley’s email says, Mattis communicated the concern to Amos, who spoke to Gen. Joseph Dunford, then the Marine Corps’ assistant commandant. Dunford then relayed the insight to Lt. Gen. Richard Mills, Gruter’s boss at Combat Development Command and the man overseeing the prosecutions.

“Accordingly,” Riley’s email says, “this went rapidly from Gen. Mattis [to] Gen. Amos [to] Gen. Dunford [to] Lt. Gen. Mills to ensure that the investigation got ‘Classified’ so that someone did not leak the video. Of course, I see some leak like that as low risk, but right now things are very tense here and are hanging by a thread with the double tap of the Koran burning and the murder of the two officers at the [Afghan Interior Ministry]. Gen. Allen’s concern is that another video, especially one showing that U.S. Forces could have engaged in misconduct would definitely push this over the edge.”

Weirick alleges Mills and his team were directed to classify the videos two days before Tryon signed the classification memo. The directive came from Bowe, who was relaying orders from Dunford, according to a report Weirick filed to the Department of the Navy Central Adjudication Facility, part of NCIS responsible for determining eligibility for security clearance.

Protests ignored

In that document, Weirick says he protested the classification order 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 scout sniper videos posed no direct harm to national security.

When Mills’ team balked, Tryon signed the order. But his head of information security, William Potts, was not involved, saying in an email “we weren’t consulted on this process.”

After that, in June 2012, Weirick petitioned a classification authority outside the Marine Corps who recommended the videos be declassified. Tryon agreed and rescinded his original decision.

The evidence was declassified in August. However, this past February, when Clement’s attorneys sought access ahead of his Article 32 hearing, they were told Clement’s interview was classified and unavailable, as were other witness statements recorded during the investigations, according to their motion.

What's in the broom closet?

The classified witness statements are located at Camp Lejeune, “in a small broom closet, not a workspace, which cannot accommodate the four members of the defense and the accused,” a footnote in the document reads. Clement and his attorneys have asked to have the recordings moved to a more accommodating facility closer to where they are based in the Washington, D.C., area, but “that request was ignored,” the motion states.

Of principal interest to Dowd and Grimm are statements made by Clement and others in the battalion to NCIS and Lt. Gen. Steven Hummer, whom Amos tapped to lead the Marine Corps’ internal investigation.

Apart from Clement, Hummer spoke to 50 witnesses, according to the motion, including Capt. Rudyard Olmstead, Clement’s company commander, and then-1st Lt. Edward Leslie, a platoon commander within the battalion. The pair watched the scout sniper mission unfold remotely via “surveillance assets,” according to court documents.

When Grimm sought to review the recordings of these and other interviews his request was ignored, even though he possesses the appropriate security clearance, the motion states. Clement, Dowd and Grimm were permitted into the broom closet one day before his Article 32 hearing, and allowed to hear Olmstead’s and Leslie’s statements to Hummer, the motion states. They were allowed also to review summaries of the interviews, which the motion says omitted evidence in the recordings indicating Clement did nothing wrong and suggesting Leslie provided “conflicting testimony.”

Leslie is one of two officers from the battalion singled out in a May 2012 position paper emailed to Amos and a host of other generals by Gen. John “Jay” Paxton, then the three-star commander of Camp Lejeune’s II Marine Expeditionary Force. It says six leaders in the battalion, including the battalion commander, Lt. Col. Christopher Dixon, were put on legal hold and questioned at length as part of the investigation. The paper concludes there was no evidence they knew about the violations allegedly committed during the scout sniper operation.

Paxton is now the Marine Corps’ assistant commandant. His position paper recommended that Leslie be released of all holds along with the battalion’s executive officer, then-Maj. James B. Conway, the son of Amos’ predecessor as commandant. Both were subsequently promoted.

Dixon, however, remains on hold at Camp Lejeune. He was selected for promotion to colonel and to participate in an academic program at the Justice Department in Washington, but both moves remain frozen pending conclusion of judicial proceedings.

The email to which Paxton’s paper was attached says Amos and several generals discussed how these cases should be handled. That happened 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.

Paxton’s paper says “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.” Both Conway’s statement to investigators and Leslie’s testimony during Clement’s Article 32 hearing would seem to contradict that assessment, however.

Conway told investigators he helped unload the bodies when they were brought back to base. Leslie was “watching the operation,” he said in court. “I definitely had the ability to influence events by reporting to them what I was seeing,” he testified.

Clement’s attorneys allege Leslie’s testimony during the Article 32 hearing in April differs from what he told Hummer during the investigation. According to a transcript from the hearing, Leslie told Hummer the scout snipers were engaged by the enemy and that Clement’s reporting was solid.

But in court testimony he said he had not seen the videos prior to the investigation. After watching them during his meeting with Hummer — which lasted between two and three hours, he said — Leslie felt the situation on the ground was not as it had been relayed to the command center by Clement.

The emails

There’s interest among Clement’s and Richards’ attorneys in what discussions took place among Amos, Hogue and other senior leaders relating to these cases. They share concerns about Amos’ decision to give Mills oversight of the urination-video cases after first appointing Lt. Gen. Thomas Waldhauser to handle them.

Waldhauser was the commanding general of Marine Corps Forces Central Command, which oversees Marine operations in Afghanistan. Richards’ civilian attorney, Guy Womack, has said Amos made the shift to Mills after Waldhauser intended give Richards only nonjudicial punishment. Womack is expected to interview both three-star generals in the coming weeks.

In early May, Weirick emailed Hogue and Delorier indicating defense attorneys had requested their emails and other communications related to the decision to replace Waldhauser, talks during the Executive Offsite and Tryon’s classification order. In a subsequent message to the judge advocate division at Marine Corps headquarters, Weirick explains that the manner by which the materials were classified “was, or could be argued to be, intertwined” with the unlawful command influence claims.

Gruter, who was Mills’ top legal adviser before becoming his chief of staff in May, expanded on this in a response to Weirick and five other Marine attorneys, pointing out that if the Marine Corps is not forthcoming “with everything that is relevant to this matter the Government will appear to be less than credible and these cases have enough issues as it is.”

“The problem we have is ‘this matter’ happens to be [unlawful command influence] and because of the various actions that have been taken, there does not appear to be any action on the part of the Government that is not somehow contaminated with ‘this matter,’ ” Gruter’s email says. “In isolation, it may be defensible to say the subject of classification is irrelevant, but none of the actions taken — shift [from Waldhauser to Mills], classification of the investigation, the ‘hold’ of certain individuals in the battalion outside the authority of [Mills] — can be considered in isolation because each … were taken and/or directed by higher authority when all authority to handle [these cases] — administrative and disciplinary — was vested in the [commanding general], MCCDC.”

Hogue and Bowe met with Gruter after the evidence was classified and made it clear “all military justice matters would flow through him to and from CMC,” Weirick’s email says. Gruter again expanded, noting that Hogue described his role as being involved “in all those things he is hired to do and all those things he is directed to do by the CMC.”

“All 3/2 matters,” Gruter’s email indicates, “fell into the latter category.”

As the senior legal adviser to the commandant, Hogue in fact has a wide purview, according to his official biography. Among his responsibilities are legal issues related to the Marine Corps’ business and procurement ventures, fiscal law, land use, labor law, and chain-of-command issues. Criminal law and military justice do not appear in that list.

Staff writer Gina Harkins contributed to this report.

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