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Many Americans remember the video posted on YouTube in January of 2012 showing U.S. Marines urinating on the corpses of Taliban terrorists in Afghanistan. (VIDEO)
The images provoked international outrage. Some felt the Marines’ unlawful behavior was mitigated by the context of a long and bloody war against a brutal enemy. Others felt there was no excuse.
But few people know what became of the case once it left the public eye: it collapsed under claims of unlawful interference at the highest level of the U.S. Marine Corps. And the key whistleblower leveling allegations is one of the prosecutors: Deputy Judge Advocate Maj. James Weirick.
“I knew something was wrong from the start,” Weirick tells me, explaining that nobody at Marine Corps headquarters would answer why Commandant James Amos, a four star general, abruptly replaced the original prosecuting team after just a few weeks. (Weirick is speaking to Blue Force Tracker on his own behalf, not on behalf of the government or military).
“I think it’s unfortunate that the system of justice was not allowed to run its course,” says Eugene R. Fidell, who teaches military justice at Yale Law School, “as a result of Gen. Amos’s blatantly improper conduct.”
For his part, Gen. Amos admits that some of his conduct “probably wasn’t the right thing to do as it related to…undue command influence,” but claims that the problem was corrected and the cases “have been handled justly.”
‘Interference from the start’
When the YouTube video surfaced, Weirick never imagined the job of prosecuting it would end up in his lap at Marine Corps Combat Development Command in Quantico, Virginia. An experienced trial lawyer, he had recently worked a case before the Guantanamo military commission. In that proceeding, he obtained a terrorism-related guilty plea from Noor Uthman Muhammaed, an al Qaeda-linked Sudanese national.
“They said ‘don’t worry about it.’ And I said ‘Yeah, but we’re going to have to eventually explain it to the court,” says Weirick.
Soon, there were additional obstacles. Weirick says the commandant’s legal staff quickly moved to classify the entire case and refused to turn over discovery materials that the defense was entitled to see.
“We kept sending requests up to Gen. Amos’ legal advisors at headquarters saying that we need info, we need to be providing discovery, and they would never respond other than to send word that I was to stop emailing about it,” says Weirick.
The defendants either appeared in the urination video, supervised them, or were involved in other alleged misconduct depicted in hours upon hours of images recorded by Marines wearing personally-owned GoPro-type mini-cameras while on duty. In summer of 2012, about half of the cases were decided through non-judicial administrative punishment instead of courts martial. They didn’t have the benefit of discovery documents withheld by Marine Corps headquarters.
It was about that time that the Quantico prosecutors say they learned that Gen. Amos, who was supposed to remain strictly hands-off the case, was allegedly influencing the potential jury pool. He was on tour, speaking to officers and senior enlisted, imploring them to mete out harsher punishments for Marine misbehavior. At the time, the military was under extraordinary pressure from Congress and the media after the urination video, questions about the handling of military rape cases and other controversies.
“Think about what people are saying about us…Congress is talking to us about this,” Gen. Amos told his military audience on June 29, 2012. “We got a problem with holding people accountable for the things that they do…We’ve grown soft.”
But as distasteful as some of the allegations were, the defendants’ right to due process is paramount, according to Fidell, a co-founder of the National Institute of Military Justice.
“A commander may [improperly] try to discourage people from becoming defense witnesses, load the jury, or send signals to subordinates how he wants things done. Obviously, any of these can have a deleterious effect on military justice and deny the accused the impartial and independent administration of justice,” says Fidell.
As part of his presentation, Gen. Amos showed a slide photo of the urinating marines.
“He’s addressing all of the potential jurors, telling them ‘you need to give more punishment’,” says Weirick. “Pressure was being applied. There was lots of talk among Judge Advocates that this was going to be problematic for many cases.”
“Unlawful command influence”
As in the civilian system, military justice is intended to remain fiercely independent. The Uniform Code of Military Justice forbids “unlawful command influence” and dictates that military judges and jurors must not be pressured to arrive at a particular decision, no person may invade the military judge’s independent discretion, commanders may not question a judge’s decision, and the court decides punishment.
“Unlawful command influence has been the bane of the military justice system forever,” says Fidell. “[It]can even be a crime.”
By March of 2013, Weirick had worked the Taliban urination video case for more than a year and says he was still unable to get the commandant’s legal staff at the Pentagon to comply with discovery requirements. He was so disturbed by what he viewed as violations of ethics and law, that he took an extraordinary step—one that could prove to be a career killer. He filed a whistleblower complaint against the commandant, Gen. Amos, with the Defense Department Inspector General.
Weirick alleged that Gen. Amos had interfered with the criminal process and improperly classified components of the case to prevent embarrassment.
“Crushed and court martialed”
After the IG began investigating, Gen. Amos’ legal advisors finally turned over long-awaited discovery material to two defendants awaiting felony courts martial. It was now July of 2013 and among the long-withheld documents was shocking evidence.
One of them was a memo dated Feb. 10, 2012 in which Gen. Amos tells Waldhauser, the first prosecution authority, that he’s off the case.
“I believe some of my comments during our recent conversation could be perceived as possibly interfering with your independent and unfettered discretion to take action in these cases,” wrote Gen. Amos in announcing the case transfer.
The memo was a blockbuster. It implied that Gen. Amos may have done something highly improper. What, exactly, had he said to Waldhauser in that “conversation” 17 months ago?
Defense attorneys quickly moved to find out. On July 23, 2013, they deposed Waldhauser, who testified he had never spoken of that private conversation with Gen. Amos—until that very moment.
According to Waldhauser’s testimony: he informed the commandant on Jan. 31, 2012 that, based on case law research, he had ruled out referring any of the Marines to felony courts martial. What was left was a range of options such as misdemeanor courts martial and non-judicial proceedings. Gen. Amos wanted more. A week later, around Feb. 7, 2012, he and Waldhauser met privately in a Middle Eastern country.
It was at that meeting that Gen. Amos allegedly stepped over the line.
Waldhauser says Gen. Amos told him he wanted the Marines “crushed” and expelled from the Marine Corps through the harshest form of court martial.
“No, I am not going to do that,” Waldhauser says he replied. Gen. Amos then reportedly threatened to reassign the case to a different prosecuting team.
A few hours later, he did just that.
Waldhauser received a call from the Assistant Commandant at the Pentagon who said Gen. Amos “was upset and regretted the conversation” and planned to remove Waldhauser from the case. On Feb. 10, it was official.
“You could not have a more quintessential case of unlawful command influence,” Weirick told me of Gen. Amos’ behavior. “It’s like a horrible criminal bumbling through a bribe in exchange for money. Gen. Amos was saying, ‘I will fire you if you don’t do what I say on this’.”
Fidell, the military legal scholar, agrees.
“Gen. Amos realizes he’s stepped in it, and to unravel blatant unlawful command influence, he comes up with a brilliant solution: 'we’ll just bring someone else in.' In doing so he engages yet again in unlawful command influence. His attempted cure didn’t cure anything, it simply started the problem all over again,” says Fidell.
Waldhauser says that in a videoconference on Feb. 12, 2012, a few days after the case was transferred, Gen. Amos admitted he “crossed the line” and said that he felt assigning a new prosecutor fixed it.
But evidence turned over in the case indicates Gen. Amos remained heavily involved in the decision making. In an email dated three months later, May 31, 2012, a subordinate writes Gen. Amos, “Your guidance [on disposition of the urination video cases]…was clear and it was communicated and was being executed.”
Evidence of Gen. Amos’ alleged interference was a turning point for the two Marines whose cases were yet to be decided: Sgt. Robert Richards and Capt. James Clement. Richards was the supervisor over the sniper team and took part in the urination. Clement wasn’t present for the desecration but was charged with not properly supervising the Marines. Their attorneys claimed Gen. Amos’ actions, now revealed, had made it impossible for them to get a fair trial.
A pretrial hearing was set to consider defense claims of unlawful command influence and it promised to be an embarrassing spectacle for Marine Corps headquarters. Before that could happen, the military quickly dropped all criminal charges against Richards and Clement, averting a public airing of the unraveling scandal.
Gen. Amos: “Probably something that I shouldn’t have done”
The Pentagon, the Marine Corps and Gen. Amos provided no comment for this report on the allegations of unlawful command influence.
In a previously-issued statement, a Marine spokesman stated, “The commandant [Amos] immediately realized that he had compromised the situation and took immediate action to ensure that the investigation and cases were given to an appropriate new convening authority who could exercise independent and unfettered discretion to take action in those [urination video] cases.”
After Gen. Amos was accused of exerting unlawful command influence during his 2012 speaking tour, he published a so-called “White Letter” to clarify that the facts of each case should determine the verdict.
Last February, Gen. Amos briefly addressed the controversy in an interview on National Public Radio. He directly contradicted the testimony of Waldhauser, the first prosecuting authority, stating that he “never, ever said” he wanted the Marines “crushed and kicked out.”
Gen. Amos explained to the NPR host that he “questioned some early decisions” by Waldhauser and then realized “that probably wasn’t the right thing to do as it related to undue—what we call undue command influence, the influence that a commander, a senior commander can have on the junior commander.
“And so immediately, to correct that, I moved that case to another three-star general, and then I stayed completely out of it. And the cases have been processed through that other three-star general, and I would argue they've been handled justly. So, the matter of influence from my office was my concern with regards to my attitude as I was talking to my younger commander. And I didn't - as I got back, and I thought this is probably something that I shouldn't have done. I mean, he got the impression quickly that I was not pleased with how this conversation was going.”
“Would he, though, have gotten the impression that he was moved because he questioned?” asked the NPR host.
“I think that's absolutely specious,” replied Gen. Amos. “I think that - and I've kept my mouth shut for a year and a half, and I think that's absolutely specious. I mean, I can't speak for him, but I can speak for myself.” (NPR Audio)
Meantime, Weirick says he faced months of retaliation and attempts to expel him from the case after he filed his whistleblower complaint with the Inspector General against Gen. Amos.
Once the criminal charges against the last two defendants were thrown out, Weirick says the guilty pleas of previous defendants who hadn’t had the benefit of discovery should have been vacated—but they weren’t.
On Sept. 21, 2013, Weirick wrote an email pressuring a former member of the commandant’s legal staff to step forward and “tell the truth.” That prompted a devastating chain of events that resulted in Weirick being called a “threat” and removed from his legal duties.
First, Gen. Amos’ top civilian attorney issued a press statement that appeared to liken Weirick to the recent Navy Yard shooter in Washington D.C. who killed 12 people. Then, Weirick was treated as if he were a psychiatric risk—suspended from his normal job, urged to turn over his licensed personal firearms, and ordered to undergo a mental health evaluation (which he passed).
“I knew things were going to be bad going in, but I wouldn’t be able to look myself in the mirror if I didn’t file the whistleblower complaint with the IG,” says Weirick.
Weirick finds allies
Meantime, a group of former military lawyers and officers rallied around Weirick. On Oct. 22, 2013, 27 of them signed a letter to U.S. lawmakers calling for a Congressional inquiry, and accusing Gen. Amos of exerting unlawful command influence and depriving the accused Marines of due process.
"Worst of all, the one person who had the moral courage to report on these events fully, Maj. James Weirick, was…unfairly painted as mentally unstable and publicly compared in a press release by the commandant's top civilian lawyer, Robert Hogue, to a mass murderer,” reads the letter.
"To be sure, Maj. Weirick should be congratulated and most certainly not condemned, for bringing these issues to the forefront."
Several Democrats and Republicans on the Congressional Armed Services Committees weighed in on Weirick’s behalf.
Rep. Walter Jones (R-NC) says Maj. Weirick has suffered “unacceptable retribution… for doing what he thought was right as a Marine; as an attorney.”
Of nine Marines disciplined in the urination or related video cases, seven are now out of the Marine Corps.
The Information Security Oversight Office of the national archives recently determined that the Commandant’s classification of case materials was reasonable.
A spokesman for the U.S. Marine Corps adds that the ISOO determined “the classification decision was motivated by the safety of U.S. military personnel in Afghanistan and the protection of specific tactics, techniques, procedures, and equipment. Accordingly, the Marine Corps views any matter involving the appropriateness of having classified the materials as closed.”
The IG is expected to finish his investigation around the end of this month. Last month, he determined that the Marine Corps did not improperly prohibit Weirick from speaking to members of Congress about his allegations, or retaliate against him for communicating with members of Congress.
Weirick has formally asked the Navy Secretary to retract press statements that seemed to liken him to the Navy Yard killer. And though he’s been selected for promotion to Lt. Col., he may have prosecuted his last case: he’s never been allowed to return to his job in military justice.
“It’s like letting a Navy pilot stay in the Navy but telling him he can never fly again,” Weirick says.
Last May, a military appeals court threw out an 18-year sentence for a Marine staff sergeant found guilty of raping a civilian. That after several jurors acknowledged they were possibly influenced by Gen. Amos’ speaking tour urging harsher punishments.
Fidell says virtually no cases of unlawful command influence have been successfully prosecuted since 1951. “They dispose of these things in another way,” he says.