The Complex

Pentagon Watchdog Takes Pass on Allegations Against Top Marine General

When a Marine Corps lawyer accused the service's top general and his staff of misconduct in their handling of legal cases tied to an embarrassing war-zone video, it created a firestorm on Capitol Hill, in the active-duty ranks, and in national media. But eight months later, it's now clear the Pentagon's watchdog agency took a pass on investigating the whistle-blower's most serious allegations -- that senior Marine officials deliberately and unlawfully interfered in the legal cases of Marines accused of war crimes and classified information to cover up their manipulation of the military justice system.

The accusations were first brought in a March complaint that accused Commandant Gen. James Amos, the Marine Corps' top officer, "or others acting on his behalf" of deliberately manipulating the legal process to crack down on Marines implicated in a war-zone investigation initiated in January 2012, after a video emerged on YouTube showing snipers urinating on the remains of dead Taliban insurgents. The complaint was brought by Maj. James Weirick, who was a staff judge advocate at Quantico, Va., working on the cases.

Weirick's 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. Weirick specifically named the commandant and five other senior officials in his complaint.

Foreign Policy has learned that while the IG pursued an investigation of Amos' handling of the younger Conway's situation, the watchdog agency 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 to Rep. Walter Jones (R-NC) and obtained by Foreign Policy.

A Defense Department official said Monday that still appears to be the case. A spokeswoman for the IG's office, Bridget Serchak, declined to comment on the issue. "We do not have anything else that we can add to this response we provided to Rep. Jones," she said.

That leaves unanswered why the IG took a pass on examining several other aspects of Weirick's complaint, including the revelation this 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 the Marines involved in the video should be treated.

In a signed declaration first reported by Marine Corps Times, Waldhauser said 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.

The IG also declined to investigate the alleged illegal classification of evidence in the sniper cases, and the withholding of key documents -- including a memo from Amos to Waldhauser acknowledging his decision to remove the three-star officer from the cases. Weirick's IG complaint said evidence in the urination video cases were classified without justification, as required by law, 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."

A lawyer for Weirick, Jane Siegel, expressed frustration in the IG's decision not to investigate her client's other allegations against the commandant and other senior Marine Corps leadership.

"It's pretty tragic, that's all I can tell you," she told Foreign Policy. "It makes you wonder how independent the IG really is when it comes to investigating allegations against senior leaders."

Thursday night, the Wall Street Journal reported that the Defense Department IG had cleared Amos of wrongdoing when it came to the treatment of the younger Conway. He was a major and executive officer in 3rd Battalion, 2nd Marines, of Camp Lejeune, N.C., when scout snipers in the unit recorded video of themselves urinating on Taliban remains in Musa Qala, Afghanistan, on July 27, 2011.

Conway, who was not in the video or accused of wrongdoing, was promoted to lieutenant colonel is year and took over an infantry battalion in Hawaii -- 3rd Battalion, 2nd Marines -- earlier this year despite the investigation. That differed greatly with the treatment of his battalion commander, Lt. Col. Christopher Dixon, whose promotion to colonel was tabled indefinitely and lost out on a plum assignment at the Justice Department that was seen as a potential fast track for promotion to brigadier general. Dixon's career was still in limbo as of Nov. 7.

The disparity in the treatment of the two officers raised questions about whether Conway was insulated from the controversy's fallout by the Marine Corps' general officer community, which determined that scope of Conway's "responsibilities, geographic location and battlefield circulation" did not put him in contact with or influence the snipers in the video, even though Conway had directly supervised them.

The Journal reported that the IG investigators determined that Amos' actions in regard to the younger Conway were "reasonable under the circumstances," according to a document the newspaper obtained. Defense officials confirmed that is the case to Foreign Policy, but declined to release the document.

Marine officials have said repeatedly that the integrity of the military justice system has been preserved throughout the cases. But their decisions did get the attention of Rep. Jones and a group of 27 former lawyers in the Marine Corps and Navy, who petitioned Congress on Oct. 22 to investigate the allegations against the commandant.

Catherine Jordan, a spokesman for Jones, told Foreign Policy on Monday that the congressman's office has sought more information from the IG since receiving the letter from them in July. He also called for an investigation of the allegations by Navy Secretary Ray Mabus, who has offered Amos a vote of confidence through a spokeswoman.

Weirick, meanwhile, was removed from his legal job at Quantico in September after he was accused of harassing Peter Delorier, one of the Marine attorneys he named in his initial IG complaint, through email. Weirick declined to comment for this story, but Siegel, his lawyer, said it's an attempt to discredit Weirick. While the IG has backed away from Weirick's allegations in the sniper cases, it's investigating his claims of reprisal, including his removal from his job, Siegel said.

A spokesman for the commandant, Lt. Col. David Nevers, told Foreign Policy that Amos's decisions have underscored his belief that Marines need to hold themselves to the highest standards. He declined to speculate on whether the IG may examine other parts of the cases.

Sgt. Mallory S. VanderSchans/ Marine Corps

The Complex

China's Beef with Japan is Also a Warning to the U.S.

China just upped the ante over a territorial dispute with Japan. But in doing so, it seems to be sending a message to the United States as it pivots east: Stay out of our way.

China's announcement Saturday that it had created an air defense identification zone (ADIZ) coupled with a demand that any non-commercial air traffic would have to submit flight plans prior to entering the area, represented by all accounts a significant provocation. China is attempting to assert its authority over a group of uninhabited islands south of Japan and just east of the Chinese mainland in the East China Sea. But the creation of the new zone is probably less about the islands, known as the Senkakus in Japan and the Diaoyus by China, as it is China's desire to flex its muscles in its own backyard as the U.S. rebalances its own strategy east.

China's decision will complicate relations as the United States seeks to build a more trusting relationship with the Asian giant and develop diplomatic efforts on a number of fronts. And it will pose a challenge to Vice President Joe Biden, who is expected to make a stop in China on a trip through Asia next month. White House National Security spokesperson Caitlin Hayden wouldn't say if the development would affect Biden's trip.

"We are very concerned about this escalatory development which increases regional tensions and affects U.S. interests and those of our allies. We have conveyed our strong concerns to China and are coordinating closely with allies and partners in the region," she said in a statement.

The area China has created isn't so much a no-fly zone as it is a yellow flag area. If the United States or another country's military flies inside the area without seeking permission first, China could respond with military force. Many countries, including the United States, have the same kind of zone around their borders. But China's move essentially puts any non-commercial flight through that area on equal footing with a flight over its own airspace.

That makes it virtually impossible for the United States or anyone else operating in the region to ignore China's claim over the area. But it's not clear how far China will really go. The United States has already said it will continue its own military operations in the zone without asking permission. And at least one knowledgeable expert believes the United States will soon assert its authority by doing just that, and test China's resolve.

"I would expect within the very near future, that [the United States] will fly through that ADIZ just to demonstrate that we reserve the right to do so," said Bonnie Glaser of the Center for Strategic and International Studies in Washington.

But that doesn't mean there will be another war in the Pacific. China could choose to ignore any U.S. aircraft in the region, or it might respond by scrambling fighter jets to escort them through the zone.

All of this could pose an enormous risk, either through escalation or by accident. In April 2001, there was a mid-air collision between a U.S. Navy EP-3 spy plane and a Chinese fighter jet, forcing the American plane to make an emergency landing on Hainan Island about 100 miles from China. The 24-member crew was detained and questioned for about 10 days before being released.

"This unilateral action increases the risk of misunderstanding and miscalculations," Defense Secretary Chuck Hagel said in a statement Saturday, reaffirming the American commitment to the defense of Japan. "We remain steadfast in our commitments to our allies and partners," according to the statement.

Rep. Randy Forbes, a member of the House Armed Services Committee who has been active on "Asia rebalance" issues, told Foreign Policy in a statement that he was happy to see the State and Defense Departments respond forcefully to the Chinese act, affirming the U.S. commitment to defending Japan. But it's not sufficient, he said.

"It is increasingly clear to me that politely conveying to China our continued frustration with their willingness to use military coercion and forms of legal warfare to bully their neighbors is just not enough," Forbes said. "It is time we explore imposing new forms of diplomatic and strategic costs on Beijing for this behavior, including an increase in our operations and exercises in the East and South China Seas."

While China will be faced with either enforcing the zone it just established or backing off, Japan will also need to decide how to respond, said Michael Auslin, a scholar specializing in Asian regional security at the nonpartisan American Enterprise Institute. "A wrong decision could lead to bloodshed," he said.

Auslin said it is worth examining why China made this move now. Is it because they don't believe the United States will back up Japan in an air clash?

"Both Japan and the U.S. need to come up with very clear [rules of engagement] for a variety of contingencies" based on this, Auslin said.

But not all analysts see it as an immediate cause for panic. China's moves so far have not directly challenged the Japanese, said Carl Baker, another analyst with the Center for Strategic and International Studies. The strong response from both Secretary of State John Kerry and Hagel despite that reflects growing concern Japan's faith in its alliance with the United States, Baker said.

Statements by Hagel and Kerry both reference Japan's claim that China's decision destabilizes the area. It is probably necessary to to reassure Japan that the U.S. supports Japan's right to administrative control of the Senkakus, but China launching an air defense zone alone does not directly challenge Japan's claim, Baker said.

"By essentially ignoring the nuance of the nature of an ADIZ and dismissing China's claims that it was establishing the ADIZ to protect its sovereign territory," Baker said, "the United States has moved a step away from its claim that it does not take a stand on the territorial claims regarding the Diaoyus and Senkakus."

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