Exclusive: Classified Information Fight Involving Marine Gets Ugly

When Marine Brig. Gen. Paul Kennedy fired off a passionate email to a superior officer in October, it looked like he was rallying to the side of Maj. Jason Brezler, an Afghanistan War veteran and New York City firefighter. Brezler was in hot water for sending classified information over an unclassified network, in an attempt to warn U.S. forces about a sinister police chief in Afghanistan, and Kennedy said he wanted to help.

Brezler had responded in July 2012 to a request for information from deployed Marines about the police chief, Sarwar Jan, who Brezler helped to oust from power in another district in Afghanistan during a deployment spanning parts of 2009 and 2010. On August 10, 2012, just weeks after Brezler sent his warning, the police chief’s teenage servant and alleged sex abuse victim, Aynoddin, opened fire on a U.S. base, killing three Marines and critically wounding a fourth. Now, Brezler is expected to go before an administrative board in December that could oust him from the Marine Corps.

Kennedy, a veteran infantry officer, told Lt. Gen. Richard Mills in an Oct. 22 email obtained exclusively by Foreign Policy that he was concerned "some momentum has built to pillory" Brezler for his inadvertent spillage of classified information. The email is one in hundreds of pages of correspondence that provide a rare, unvarnished glimpse into how senior military officers interacted with one another on a contentious issue as it grabbed attention on Capitol Hill, in the national media and among the active-duty ranks.

Kennedy, like Mills, had spent a year commanding troops in Helmand province, and appeared concerned that Brezler was in danger of having his career ruined for "ill-considered execution of otherwise WORTHY and honorable intent," as Kennedy put it.

"His performance in Now Zad during our deployment was stellar," Kennedy said in his email to Mills, referring to the Afghan district in Helmand province. "Am afraid he has been scapegoated by non-Helmand-tested staff officers."

Later the same day, Mills responded to Kennedy, saying the one-star officer didn’t have all the information about the case. Brezler, Mills said, had made more mistakes than simply sending a classified document as part of his warning about the shady police chief, Sarwar Jan.

"Paul, you need to get all the facts in the case…. No one is getting pilloried…." Mills said, in a message filled with ellipses. "The incident that he is using in his own defense is just a small slice of it….. He could have been court martialed…"

Kennedy later reconsidered and did not intervene, according to both Brezler’s attorney and a Marine official with knowledge of the case. One month later, those emails are now part of a case that has grown increasingly complicated since August, when it was first reported by this reporter for Marine Corps Times. The case is getting uglier, too. Brezler’s legal team asked the Marine Corps on Nov. 22 to replace Mills as the officer overseeing the case. The lawyers alleged the three-star general had overstated Brezler’s mistakes repeatedly in correspondence with other generals, including Kennedy, by saying the major could have been court-martialed for his handling of classified information.

Brezler’s lawyers said Mills’ comments resemble unlawful command influence, a situation in which a senior officer’s actions in a case sabotage its fairness. Unlawful command influence has been a hot-button issue in the military this year, to the point that the Navy-Marine Corps Court of Criminal Appeals is hearing arguments and will likely rule soon on whether the service’s top officer, Gen. James Amos, crossed a legal line by touring the Marine Corps last year to say he wanted misbehavior by Marines punished. Doing so made it impossible for Marines charged with crimes to get a fair trial, defense lawyers allege.

Brezler’s lawyer, Kevin Carroll, also claimed in his Nov. 22 letter to the Marine Corps that there is an apparent conflict of interest in his client’s case because one of the Marines in Afghanistan that Brezler warned about Sarwar Jan is the son-in-law of a retired Marine general officer, Lt. Gen. George Flynn, whom Mills worked with. The fact that Mills pushed for the punishment of Brezler, despite the Marine Corps not going after the officers who allowed the police chief access to the base after Brezler’s warning, raises serious questions of favoritism, the lawyer alleged. The lawyer declined to identify Flynn’s son-in-law to Foreign Policy, but the Daily Beast reported Nov. 19 he is Maj. Brian Donlon. Donlon did not respond to a request for comment.

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Brezler’s predicament has received attention from the top of the service for months. Shortly after his story first reached the media, Gen. Amos, the Marine Corps’ top general, fired an Aug. 26 email to three senior Marine officials asking for information about Brezler’s case. The initial Marine Corps Times story had cited concerns raised by Rep. Peter King (R-N.Y.), who’d sent a July 11 letter to the commandant asking why Brezler had been given a career-ending performance appraisal despite the fact that his spillage of classified information came while sending a warning about an insider threat.

The commandant’s email was titled "NEED GROUND TRUTH." In it, the four-star general said the initial news story was "the first I have heard about this," and that "I certainly have not seen a letter from Rep King to me." Amos asked the Marine Corps’ acting inspector general, Carlyle Shelton, to "get past the news article and come back to me with what ground truth is please." Amos’ email came about two weeks after the Marine Corps Office of Legislative Affairs already had responded to King in an Aug. 12 letter. It said Maj. Gen. James Lariviere, the commanding general of 4th Marine Division, had reviewed Brezler’s case, and agreed with him getting a bad performance appraisal, known in the Marine Corps as a fitness report.

King told Foreign Policy on Tuesday that he doesn’t expect the commandant to respond directly to every inquiry the congressman sends, but believes this one should have reached Amos.

"We’re talking about something very unique here involving the murder of three Marines. It seems to me that this should have been directly given to the commandant," King said in an interview.

A spokesman for the commandant, Lt. Col. David Nevers, declined to comment for this story. The congressman said Brezler, who reported himself to authorities after sending classified information, should not be severely punished when he tried to notify deployed Marines as quickly as possible about an insider threat they faced.

"If there is another side to the story, I haven’t heard it," King said. "No harm came from this [Brezler sending the warning], as best I know. It’s going to be hard to explain to the American people that he tried to help, and now faces this."

The att
ack, on Forward Operating Base Delhi, killed Staff Sgt. Scott Dickinson, Cpl. Richard Rivera and Lance Cpl. Gregory Buckley. Staff Sgt. Cody Rhode sustained five gunshot wounds, but survived, Marine officials said. They were all members of an Afghan police advisory team in Helmand province’s Garmser district, and working alongside 3rd Battalion, 8th Marines, from Camp Lejeune, N.C.

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Mills has argued in email traffic to other senior officers that there is another side to the case. As the commanding general of Marine Corps Forces Reserve, based in New Orleans, he is set to oversee the administrative board that Brezler, a reserve officer, will face.

In an Oct. 21 email to Amos and the Marine Corps’ No. 2 officer, Gen. John Paxton, Mills told them that there was additional media coverage of Brezler’s case after he ordered the Marine to stand before the board of inquiry. Mills added that an investigation had found there was more to the case than initially reported.

"The BOI is for mishandling classified material after his return from theater in 2012," Mills said. "The news casts [sic] paint a picture that the Major is being punished for passing classified info over unclass channels [to] warn Marines in theater of a possible insider threat. While its [sic] true he sounded a warning to Marines in theater that spillage was only a triggering event for an investigation into his other handling (or mishandling) of classified material in his care."

Mills’ email to Amos and Paxton goes on to say that an investigation by the Naval Criminal Investigative Service substantiated misconduct against Brezler, and found more than 100 classified documents on his personal, unclassified hard drive and thumb drive. Marine officials did not disclose those details earlier this year, citing a desire to maintain the integrity of the investigation.

"Unfortunately, Maj Brezler/civilian defense counsel has decided to try his case in the press," Mills told Amos and Paxton. "The Major is a NYC Fireman. His team has recruited Rep King from New York on his behalf and has fired up the Reserve Officers Association, among others. We have responded appropriately and will insure that Maj Brezler has a full and fair BOI."

Aspects of Mills’ email closely mirrors what Col. Francis Piccoli, a spokesman for the general, told Foreign Policy.

"Pursuant to a NCIS investigation that substantiated the mishandling of classified information, Maj Brezler has been ordered to show cause for retention in the U.S. Marine Corps before a Board of Inquiry," Piccoli said. "The Marine Corps will not comment further on this case at this time because we do not want to influence the Board of Inquiry’s decision-making process and/or jeopardize the due process Maj Brezler should be afforded during this administrative hearing."

The case has attracted the interest of other senior Marine officers — on both sides of the case. Kennedy declined to comment on his Oct. 22 email to Mills, but a Marine official with knowledge of the case said he backed off supporting Brezler after he asked the major to "clarify a few points" about the case. Kennedy then decided Brezler "doesn’t have a basis for defense," the Marine official said. Mills and Kennedy did not exchange messages on the subject again, the official said.

On the other side, Maj. Gen. Larry Nicholson, the commanding general of 1st Marine Division; Brig. Gen. Richard Simcock, the deputy commanding general of Marine Corps Forces Pacific; and a number of high-profile retired Marines have sent letters of support asking the board to remember Brezler’s successes in combat. In an Oct. 1 letter first reported by this reporter for Marine Corps Times, Nicholson said he first met Brezler in 2006 in Fallujah, Iraq. The general credited him with launching numerous civil affairs projects in the city despite the enemy launching repeated attacks.

"Jason is a selfless, fearless and dedicated Marine Officer," Nicholson wrote. "He accomplished much, for so many, with little regard for himself. I urge board members to take into consideration these aspects of his character and prior service in deliberations."

Sen. Kirsten Gillibrand also wrote to the Marine Corps on Brezler’s behalf, urging leniency for the major in an Oct. 21 letter.

"I understand that Maj. Brezler received an urgent request for information from Marines in Afghanistan," she wrote. "Maj. Brezler immediately responded with the information, which could have been used to save the lives of fellow Marines. Maj. Brezler’s location in Oklahoma precluded him from access and using classified military networks for the transmission of this information in an expeditious manner. When Maj. Brezler was informed that the information he forwarded might be classified, he immediately reported the security breach."

Carroll’s law firm, Quinn, Emanuel, Urquhart & Sullivan, took Brezler’s case pro bono. He referred comment for this story to his Nov. 22 letter to the Marine Corps. It said Brezler voluntarily consented to an Oct. 17, 2012, search of his home. Investigators found nothing, Carroll said, but Brezler called them back when he remembered he still had a hard drive he’d used in Afghanistan. Brezler had stored classified documents on them, in part because when he was deployed from late 2009 to 2010, his unit did not have enough computers, Carroll wrote.

"Hundreds of Marines make similar (or worse) mistakes than Brezler’s every year," the letter from Brezler’s lawyer said. He compared the treatment of his client to that of the officers deployed with 3rd Battalion, 8th Marines, who continued to allow the Afghan police chief, Sarwar Jan, on the base after Brezler’s attack right up until the insider attack. None of them, including Donlon, the retired deputy commandant’s son, has faced any professional backlash.

That has similarities to another case this year for which Gen. Amos and other senior Marine officials were investigated by the Defense Department’s inspector general. In that one, Marines complained that the Corps allowed then-Maj. James B. Conway, the son of retired Commandant Gen. James T. Conway, to be cleared in an investigation launched after a video was posted on YouTube in January 2012 depicting snipers in the younger Conway’s battalion urinating on the remains of dead Taliban insurgents. Conway was not accused of any wrongdoing, but others who also were not charged with crimes were prevented from taking follow-on assignments for months. The IG found recently that Amos’ decisions were reasonable given the circumstances.

Carroll, Brezler’s lawyer, does not mention that case in his most recent correspondence with the Marine Corps, but he pulls no punches in defending his own client.

"The clear implication," wrote Brezler’s lawyer, "Is that that the naval justice system grants generals’ sons preferential treatment over those Marines whose family members are not similarly privileged."

Email traffic between Marine generals, Brezler case (Part 1) by Dan Lamothe