Exclusive: New Investigator Probes Alleged Marine Corps Cover-up

An investigation into whether senior Marine Corps officers attempted to cover up their own misconduct while prosecuting war crimes in Afghanistan has suddenly roared back to life, with a top civilian official now looking into whether the Marine brass unlawfully concealed crucial evidence in the cases, Foreign Policy has learned.

The investigation stems from the Marine Corps’ handling of legal cases tied to an embarrassing, widely distributed video depicting Marine snipers urinating on dead Taliban insurgents in Afghanistan on July 27, 2011. It was posted online in January 2012, creating an international uproar and drawing condemnations from then-Secretary of State Hillary Clinton, then-Defense Secretary Leon Panetta, and other top U.S. officials. Three snipers who appeared in the video pleaded guilty to a variety of charges, including wrongful possession of unauthorized photos of casualties. At least five other Marines received non-judicial punishments.

While the criminal cases played out, top Marine officials abruptly classified the videos and other information collected despite protestations that it wasn’t legal to do so from classification experts in the military. Marine officials argued that releasing the videos and other information in the case could lead to new attacks American troops in Afghanistan.

That move outraged Maj. James Weirick, a Marine lawyer at Quantico, VA, who alleged that Gen. James Amos — the top officer in the Marine Corps and a member of the Joint Chiefs – or others acting on his behalf deliberately and unlawfully meddled in the prosecution of the Marines caught in the video to ensure that they received stiff punishments. Weirick also accused senior Marine Corps leadership of unlawfully classifying evidence in the case in an attempt to cover up their involvement in the case.

Weirick’s whistle-blower complaint received widespread media coverage last year. It did not, however, appear to get much traction with the Defense Department’s inspector general, and it seemed like Amos and other top Marines were out of the woods. In the last few days, however, Weirick’s charges have received new attention from a powerful civilian official, John Fitzgerald, the director of the U.S. Information Security Oversight Office in Washington. Fitzgerald’s interest in the case, which hasn’t previously been reported, means that the probe is far from complete and could yet ensnare top Marine brass.

Weirick, according to letters obtained by FP, met with Fitzgerald on Jan. 22. Fitzgerald and his office aren’t widely known among the general public, but he is the top authority on whether evidence like the urination videos should have been classified. In the letter, Weirick thanked Fitzpatrick for the meeting and urged him to hold Amos and other Marine officials accountable for their actions.

Weirick, in his letter to Fitzgerald, compared the handling of the Afghanistan urination videos to the way the military responded when the gossip Web site TMZ obtained photographs that appeared to depict Marines burning insurgent corpses in Fallujah, Iraq, in 2004.

TMZ published a handful of those images on Jan. 15, and the Pentagon promised to investigate. It did not, however, appear to move to classify any of the images. In his letter, Weirick pointed out that the Marines did classify the Afghanistan urination videos. The core of Weirick’s complaint is that the Marines took that step to cover up their own unlawful meddling in the Afghanistan case.

"According to the TMZ story, the photographs were ‘turned over to the Pentagon’ before publication," Weirick wrote. "An inquiry by your office into the decision to classify the burning photos, or the decision that this material did not qualify for classification, should provide some insight into the proprietary of the previous decision to classify the urination videos."

In a follow-up letter sent Friday to Fitzgerald, U.S. Rep. Walter Jones, R-N.C., expressed dismay at the actions of senior Marine Corps leaders.

"I have been working with Maj. Weirick on some of these cases and I can tell you that this corruption, at the highest level of the USMC, is unlike anything I have witnessed in my 20 years in Congress," Jones wrote in his letter, obtained by FP. "This matter has languished with the Department of Navy and the Department of Defense for six months, so I appreciate your attention to the issue. I am confident you will come to the conclusion that the wrongful classification did take place, as well as several attempts to cover it up by those in the commandant’s office."

The involvement of Amos and other senior Marine officials in the Afghanistan cases has been under the microscope ever since Weirick, a Marine Corps attorney who had worked on them, filed an explosive complaint with the Defense Department inspector general in March 2012. Among his accusations, Weirick alleged in his IG complaint that Amos’ top legal advisers pushed to classify evidence gathered in the investigation 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 whistle-blower also filed a report around the same time with the Department of Navy Central Adjudication Facility, an arm of the Naval Criminal Investigative Service that determines eligibility for security clearances. Weirick asked the agency to determine whether three of the commandant’s lawyers — Col. Joseph Bowe and civilians Robert Hogue and Peter Delorier — deserved to keep their security clearances for defying the recommendations of Marine attorneys overseeing the case and four classification experts working for the Corps.

It is this second report to NCIS’ classification authorities that appears to have made its way to Fitzgerald. As Marine Corps Times first reported in May, Weirick alleged that the officer overseeing the urination video cases, Lt. Gen. Richard Mills, was directed to classify the urination video on Feb. 27, 2012, along with several videos depicting Marine malfeasance in Afghanistan the same day. Weirick and other attorneys working for Mills balked, saying the general lacked the proper authority to do so. Weirick alleged that another senior officer working at the Pentagon, Lt. Gen. Richard Tryon, did so instead, signing a memorandum classifying the videos and investigation, even though he wasn’t considered a classification authority, either.

Weirick alleges that he went to U.S. Central Command – which oversees operations in Afghanistan and across the Middle East – afterward to ask for Tryon’s classification decision to be reviewed. Army Maj. Gen. Karl Horst, CENTCOM’s chief of staff, reviewed the investigation and declassified it in June 2012, providing legal teams representing the Marines facing courts-martial with information they needed to defend them.

"This was, in no way, an unintentional misclassification or simple mistake," Weirick alleged in his report to NCIS’ classification authorities. "This was a coordinated effort to circumvent the proper classification procedures…. These individuals purposely avoided any input or advice from security personnel in order to wrongfully classify this information."

Marine Corps officials maintain that the videos were classified due to concerns that they would lead to violence against U.S. service members, and that the prosecution of Marines involved was done fairly and impartially. A Marine spokesman, Col. Chris Hughes, reiterated those points on Friday to FP, saying the accidental burning of the Quran, Islam’s holy book, by deployed U.S. soldiers around the same time had heightened sensitivities and led to violent protests in Afghanistan.

"The genuine concern was that these products would be used to incite violence against U.S. soldiers and Marines and other service members," Hughes told FP.

Hughes declined to comment on Jones’ accusations, but said the Marine Corps considers the congressman a friend of the service.

Weirick declined to comment on Friday. However, the classification issue may be the whistle-blower’s last, best chance for vindication. His allegations had three major components: He said top Marine officials had unlawfully meddled in the cases, illegally classified information to cover up their actions, and apparently showed favoritism to one officer, then-Maj. James B. Conway, whose father, James T. Conway, retired as Amos’ predecessor in October 2010.

As FP reported in November, the IG found no wrongdoing in regard to the younger Conway’s situation, but declined to look into the other two parts of the major’s accusations. The allegations that "legal advisers to the Commandant…sought to classify evidence to delay disclosure in a court-martial, conceal violations of law, and prevent embarrassment to the Marine Corps … is not under investigation by this office," according to a July 23 letter sent from the inspector general’s office sent to Congressman Jones, who has shown an interest in the case for months.

A spokeswoman for the IG’s office, Bridget Serchak, declined to comment on the issue at the time. That left unanswered why the IG took a pass on examining several other aspects of Weirick’s complaint, including the revelation last summer that Amos removed the first three-star general he put in charge of the cases, Lt. Gen. Thomas Waldhauser, after the two men disagreed on how severely the Marines involved in the video should punished.

In a signed declaration first reported by Marine Corps Times, Waldhauser said last summer that he was removed by Amos in February 2012 as the convening authority in the cases after Amos said he wanted the Marines involved "crushed" and tossed from the Marine Corps. Waldhauser favored a lighter administrative punishment for some of the Marines that likely would have led to a demotion in rank, but allowed them to stay in the service. Lawyers for the Marines who faced charges in the cases said the commandant’s actions amounted to unlawful command influence that made the legal proceedings unfair.

ISOO doc by Dan Lamothe

Jones Letter by Dan Lamothe