The Complex

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

Photo by Sgt. Mallory S. VanderSchans/ Marine Corps

National Security

The Military Has Cataloged Its Ethical Failures, and They're Kind of Awesome

Did you hear the one about the first lieutenant who had to pay $120,000 in fines for accepting bribes from contractors he'd awarded with lucrative Defense Department deals? Or the Navy civilian in Texas who asked a defense contractor for a $5,000 payment so the contractor could be "recommended" for a $153,000 contract? What about the four senior officials, including two Air Force generals, a Marine general and a Navy admiral, who extended their stay in Tokyo to play golf at an illegal cost of $3,000 to the government?

The thing is, those aren't jokes. They're true stories. And they point to a growing problem within the military: a pattern of misconduct, misbehavior and outright thievery by senior generals, top Pentagon civilian officials and of course, the rank-and-file. 

The laundry list of wrongdoing, in the Defense Department and in various other government agencies, is contained in a surprisingly readable but unknown document compiled by the equally unknown Defense Department's General Counsel's Standards of Conduct Office.

The name of the July 2013 report says it all: The Encyclopedia of Ethical Failure, a 164-page who's who of bureaucratic nee'r do wells that details all of those government personnel who have tried to fleece the government, line their pockets with public money, use government property for their own use or demand loans from subordinates.

There is a section on credit card abuse, another on political endorsements. There's one on financial aid disclosures, and others on fraud, gambling and gift violations. The Defense Department likes to say that most of its personnel are law-abiding, upstanding citizens, and that's true. But the numerous cases listed in the document beg the question: who does this kind of thing? 

"Our goal is to provide DoD personnel with real examples of federal employees who have intentionally or unwittingly violated the standards of conduct," the introduction reads. "Some cases are humorous, some sad, and all are real."

Whoever assembled the list of cases in the Encyclopedia - taken mostly from Department of Defense Office of the Inspector General cases -- seemed to have had fun doing it. Forget the stuffy, bureaucratic-ese of most government publications - this one channels Al Gore with his famous directive to write government documents in English. The Encyclopedia is all written in a breezy, informal style meant to attract attention to all the wrongdoing even as it repeatedly details all the U.S. code violations and governmental regulations in question. 

Here's the headline to the item about the golf outing in Tokyo: "A Swing and a Miss for Senior Officers Using Government Funds on Golf Outing." One about a sergeant who put government-owned parts on his truck is titled "Staff Sergeant Tricks out His Ride on the Government's Dime." Here's another: "Misuse of Culinary Specialists Results in Attention of Chief of Naval Operations."

The nearly two year-old report nonetheless comes at an awkward moment for the military. As the Navy investigation into the "Fat Leonard" bribery scandal unfolds and expands, the report highlights a number of lesser-known incidents of bribery that the Defense Department believes all of its personnel should be aware of. Indeed, many of the cases have to do with misconduct involving millions of dollars of government money. 

For example, a retired Army major, Christopher Murray, received $225,000 in bribes during his assignment to Camp Arifjan, Kuwait, in 2005 and 2006 while he served as a contracting specialist there. In another case at the same base, Army Maj. James Momon, Jr. accepted cash bribes from five DOD contracting firms that supplied bottled water and other goods to U.S. bases in Kuwait.

"Momon, a contracting officer at the camp, awarded contracts and Blanket Purchase Agreement calls to those contractors, receiving $5.8 million as payment for his actions," the document reads. 

Then there was 1st Lt. Robert Moore, one of the "10 percenters" as some in the military like to call bad apples, who was deployed to Bagram Airfield in Afghanistan and eventually agreed to pay $120,000 in fines for accepting bribes from contractors in exchange for DOD contracts.

That wasn't all. According to the report, "Moore pled guilty to conspiracy, admitting to falsifying the number of bunkers and barriers delivered at Bagram, which resulted in DOD paying for bunkers and barriers that were never received." He also admitted to falsifying damage reports for leased vehicles, causing DOD to pay for repairs not performed. 

Moore wasn't alone. Army Major Christopher West and Air Force Mstr. Sgt. Patrick Boyd, also pled guilty to bribery and conspiracy for related conduct. And the two paid for their mistakes: West had to give a whopping $500,000 back to the military while Boyd turned over $130,000 more.

There were also numerous cases of senior officers who bent the rules and used their position to obtain better airline tickets, visits to clubs or extra services to which they aren't entitled. 

The encyclopedia details the case of one senior officer who, with his wife, flew in "premium class" on official business trips, justifying it in part by suggesting that flying anything less would have looked odd to their hosts in a foreign country. The case does not identify the officer, although it sounds very similar to the types of concerns over which Gen. Kip Ward, the former Africa Command commander, was reprimanded and later effectively pushed out of the military.

In another case with the same officer, "the officer justified business-class seats by indicating he was required to perform official business immediately after his arrival at his travel destination, when in fact he spent almost his first full day attending a VIP welcome, making U.S. embassy calls, enjoying lunch and dinner, and touring a local vineyard." 

There's more. "Although never issuing any direct orders, the officer requested his subordinates to perform many personal services such as caring for his dog, shopping for athletic gear, and repairing his bicycle." And there's this: the senior officer - who presumably makes in excess of $150,000 a year -- asked subordinates to loan him "thousands of dollars in payments out of their personal funds." While he repaid them later, officers can't essentially ask subordinates for personal loans - a fairly obvious violation of ethics guidelines for officers.

The four senior officers who abused their travel orders apparently were at a golf outing in Tokyo when they used government transportation and received a per diem to play in a golf tournament. 

"There were no business events that day, and the all-day golf event was attended by less than half of the conference participants... golf foursomes do not provide the opportunity to dialogue with a large or diverse group of people and thus do not greatly foster communication between conference participants," the report said. The four officers were told they had to reimburse the government both for the lodging and the per-diem costs incurred during "the golf outing."

Some of the cases make for lighter reading.  

Take the case of the Army sergeant assigned to a National Guard maintenance shop that worked on civilian vehicles there but removed government-owned car parts to install on his personal vehicle. He then used a government credit card to buy a new fuel tank and install it on his personal truck. 

"The staff sergeant not only took a government vehicle for his personal use, but he even took a shed from the shop and moved it to his home," the citation reads. "He was also suspected of using his government credit card to pay for gas for his personal vehicles.  The staff sergeant was charged with larceny and wrongful appropriation under the Code of Military Justice and the government was able to recover $8,800 in property."

The bottom line lesson: don't try any of this at home. "Please pay particular attention to the multiple jail and probation sentences, fines, employment terminations and other sanctions that were taken as a result of these ethical failures," the document reads. 

[This story was updated to reflect the newest version of the Encyclopedia, last published in July 2013.]



AFP/Bay Ismoyo