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Whistle-blower alleges reprisal by Marine brass, says he won't back down

Aug. 18, 2013 - 06:00AM   |  
Maj. James Weirick
Maj. James Weirick ()
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Maj. James Weirick had seen enough. In March, after months of observing how the Marine Corps was prosecuting eight Marines implicated in war-zone controversy, he sent a six-page complaint to the Pentagon’s investigative agency alleging a variety of malfeasance by the service’s top general and his senior advisers.

The major, a staff judge advocate in Quantico, Va., assigned to the cases, urged the Defense Department inspector general to investigate how the Corps was handling its cases stemming from a video showing four scout snipers urinating on dead insurgents in Afghanistan. He alleges Commandant Gen. Jim Amos, or others working on his behalf, sought to ensure harsh punishment for the Marines facing charges and suppress evidence. To Weirick, this raised questions about the fairness of these legal proceedings.

His complaint also noted that it appeared Amos exhibited preferential treatment toward one of the officers in the scout snipers’ unit: then-Maj. James B. Conway, the son of Amos’ predecessor as commandant, retired Gen. James T. Conway. During the battalion’s deployment, the younger Conway served as executive officer for 3rd Battalion, 2nd Marines, out of Camp Lejeune, N.C.

“I lack the power or authority to get the emails and other requested materials in the possession of the Commandant and his staff,” Weirick writes in the complaint. “To ensure a fair proceeding I need the assistance of those with much greater authority. I should have acted earlier, but I truly believed those with the authority to accomplish this would adhere to the Rule of Law and our shared value of due process. This, sadly, has not been the case. Both civilian and uniformed counsel for the Commandant have thwarted my efforts and remained silent, or possibly assisted in, this unlawful command influence.”

The complaint specifically names Amos and five other senior officials: Gen. Joseph Dunford, who was assistant commandant until becoming the top U.S. commander in Afghanistan this year; Maj. Gen. Vaughn Ary, the staff judge advocate to the commandant and director of the Judge Advocate Division at Marine Corps Headquarters; Col. Joseph Bowe, Amos’ deputy staff judge advocate; and civilian legal advisers Robert Hogue and Peter Delorier.

These explosive accusations have received attention in national media, on Capitol Hill and throughout the Defense Department. They’ve also made life difficult for Weirick and Col. Jesse Gruter, his direct supervisor during most of the last year. Both allege they’ve come under fire from senior Marine officials as a result of Weirick’s complaint, according to emails and other documents obtained by Marine Corps Times as part of a months-long investigation into the allegations surrounding the commandant.

The two military attorneys were involved in the urination cases as legal advisers for Lt. Gen. Richard Mills, commanding general of Marine Corps Combat Development Command, who was selected by the commandant in February 2012 to oversee all related cases. But Weirick and Gruter contend they are the subject of reprisals for pushing back against alleged wrongdoing.

In one example, Col. Mark Jamison, a staff judge advocate for the commandant, pressed Gruter to remove Weirick from the cases after the IG complaint was filed, Weirick alleges in an Aug. 7 email to another Marine attorney, Maj. Michael Libretto. The email is contained in a recent legal motion seeking dismissal of the case against Capt. James Clement, the last Marine to face court-martial in connection with the urination video.

Weirick’s email is in response to Libretto’s request to meet for an interview about theClementcase. Weirick declined, saying Jamison had never retracted an allegation Weirick violated attorney-client privilege with the Corps by becoming a whistle-blower.

Gruter, who is copied on Weirick’s response to Libretto, weighed in via email as well, saying he, too, remembers Jamison’s alleged accusation. Gruter’s email says Jamison insisted Weirick “should be counseled in writing and be required to respond in writing” for filing the IG complaint.

Weirick filed a separate reprisal complaint with the Pentagon IG on May 24. In it, he alleges Ary and Hogue, the commandant’s top civilian attorney, lodged a professional misconduct complaint against Gruter and canceled his next assignment as punishment for Weirick reaching out to Congress about his IG complaint.

“My fear is that unfavorable personnel action will be taken against my Commanding General, LtGen Richard P. Mills, as a result of my protected communications,” Weirick says in the reprisal complaint. “I do recognize it sounds somewhat strange for a major to be worried that a LtGen will be retaliated against for the major’s actions. But this entire matter has continued to escalate as a result of my original DoD IG complaint. It is my belief that the Commandant’s staff is retaliating against members of my chain of command as a direct result of my protected communications.”

Reprisal is banned by the federal Military Whistleblower Protection Act, which states service members are allowed to make “lawful communications” with members of Congress, inspectors general, military auditors and law enforcement organizations. A 2011 internal investigation by the Defense Department released to the Center of Public Integrity found the Pentagon frequently failed to protect whistle-blowers from reprisal, however.

The legal rights of those accused in the urination cases “have been protected throughout every step of the military justice process,” said Col. Sean Gibson, who has served as the Marine Corps’ spokesman for most issues related to these cases. He said it would be “improper to comment on any statements, testimony, or credibility of possible witnesses” in Clement’s case, and referred all questions about Weirick’s IG complaint to Defense Department Inspector General Lynne Halbrooks. A spokeswoman for the IG, Bridget Serchak, has declined to comment on the case. The commandant’s office has declined to address Weirick’s allegations.

The whistle-blower

Weirick and Gruter declined to be interviewed. Weirick, however, released a brief statement to Marine Corps Times when informed that the newspaper was preparing a story about him. In it, he points out the sacrifice made by the eight Marines charged with crimes as a result of the urination video. It was recorded July 27, 2011, in the middle of a fierce combat deployment to Helmand province’s violent Musa Qala district.

Weirick states that because of the ethics allegation that Marine Corps headquarters has lodged against him, he is unable to comment “on the facts or any other aspect” of the case against Clement, who is accused of dereliction of duty and conduct unbecoming an officer for failing to stop the misconduct of junior Marines.

“I can, however, say that Marines are expected to act in a manner befitting the title we have earned, which includes acting in an ethical manner at all times,” Weirick states. “These Marines, despite what they were accused of, fought and nearly died in defense of the Constitution. I could not allow these Marines to be deprived of rights they are guaranteed by the document they swore to defend.”

Weirick, of Alexandria, Va., has served as the deputy staff judge advocate at Marine Corps Combat Development Command since October 2011, according to his profile on LinkedIn. Prior to that, he was a prosecutor for the Office of Military Commissions in Alexandria, Va., an appellate government counsel, and a judge advocate at Marine Corps Recruit Depot San Diego.

He completed officer training in Quantico in 2002, after graduating from the Seton Hall University School of Law in Newark, N.J., in 2000, according to his online profile. He was selected for promotion to lieutenant colonel last year, but has not pinned on his new rank.

In emails and court documents, Weirick makes it clear he will not back down. On May 22, he wrote to Colleen Bell, a staff member for Sen. Claire McCaskill, D.-Mo., asking if Bell would be interested in viewing a court-martial in which unlawful command influence accusations against the commandant were likely to come up.

During the past year, more than 80 UCI motions involving the commandant have been filed by defense attorneys who’ve latched on to comments he made as part of last year’s “Heritage Brief” tour, in which he lambasted misbehavior by Marines and pressed for aggressive responses when they were discovered. McCaskill has been one of the strongest critics of the military’s ability to prosecute sexual assaults cases, and Weirick wanted to offer her office the opportunity to see a hearing in which unlawful command influence would be discussed, he says May 24 in an email to recently retired Col. Terrance Brennan, then Mills’ chief of staff.

Weirick’s email to Brennan states that he would agree to temporarily stop contacting members of Congress at Mills’ request. Weirick adds that the three-star officer has been “scrupulous in ensuring that I suffered no reprisals resulting from my DoD IG complaint” — but he lays in on Ary, a two-star general, and Hogue, a well-connected senior executive service appointee. Weirick’s email contends they reached out to Brennan and forcefully told him Weirick was not allowed to contact members of Congress.

“The entire basis of my DoD IG complaint revolves around unlawful command influence by the Commandant,” Weirick writes. “I was communicating with a Member of Congress to inform said member about this matter and to invite her to observe a court-martial hearing that involves discussion of this unlawful command influence. ... The Gestapo tactics of Mr. Hogue and MajGen Ary must not be allowed to go unchecked. I will, without doubt, enforce all of my rights and oppose, by any legal means necessary, this infringement on my right to communicate protected communications with Members of Congress.”

Separately, Weirick exchanged a series of emails that week with Lt. Col. David Greenlees, a member of the Marine Corps Office of Legislative Affairs on Capitol Hill. Greenlees sent a May 22 message asking why Weirick had contacted McCaskill without his office’s involvement. Weirick responds that he was not representing the Marine Corps in an official capacity at the time. Greenlees counters that Weirick should not have used his Marine Corps email account if that was the case, and Weirick responds by invoking Article 31 of the Uniform Code of Military Justice, which allows service members to remain silent under interrogation.

“Warrior, I’m puzzled as to what is going on here,” Greenlees responds. “I’m simply asking you why you are setting up the brief. I am working on setting it up as well.”

In his email to Brennan, Weirick states that there was nothing illegal about him using his usmc.mil email account to contact members of Congress. Marine administrative message 181/10, he points out, authorizes “limited personal use of internet-based capabilities via the Marine Corps Enterprise Network.” A three-sentence email qualifies, he asserts, and adds that “the only reason” he is temporarily suspending emailing members of Congress is his fear that Marine Corps headquarters will make Mills or Brennan the subject of reprisal.

Days later, Weirick emailed Hogue, Ary, Bowe and Delorier, and copied Greenlees on his message. The major states that he will continue to communicate with members of Congress about all of the issues raised in his IG complaint. “I am not relinquishing my right to make protected communications with Members of Congress as I see fit,” he writes. “As you are assuredly aware, I have alleged each of your conduct represents a ‘violation of law or regulation,’ thus my communications are clearly protected.”

The whistle-blower's boss

Gruter had said little publicly about the cases before now. In a signed declaration filed Aug. 13 with Clement’s motion to dismiss his case, the colonel corroborates much of what Weirick alleges in his initial inspector general complaint. Gruter served as the staff judge advocate for Marine Corps Combat Development Command — and as Weirick’s direct supervisor — beginning in January 2012. He became Mills’ chief of staff in June, according to his LinkedIn profile.

Gruter contends in his declaration that Marine Corps headquarters classified videos, interviews and other evidence collected during the investigations into the urination cases despite his and Weirick’s protests, and without legal justification. That move was made through a February 2012 memo approved by Lt. Gen. Richard Tryon, then the deputy commandant for plans, policies and operations at the Pentagon, Gruter says. The colonel adds that Bowe, Amos’ deputy staff judge advocate, informed him that Dunford, then the Corps’ assistant commandant, had ordered it. Mills, the consolidated disposition authority for all the cases, disagreed with classifying the investigations, but it was done anyway, Gruter says. The memo signed by Tryon has Hogue’s name on it, and states it was prepared by Delorier, one of the commandant’s civilian attorneys.

Gruter’s declaration says that soon after he vocalized his concerns, Ary, the Marine Corps’ top uniformed attorney, attempted to remove him as Mills’ legal adviser. Ary told Gruter he wanted a lawyer in that position who understood Washington’s political dynamic, Gruter’s statement says. The colonel adds that he believes it was Mills’ “support that deterred Major General Ary from replacing me.”

Gruter‘s declaration emphasizes his belief that Hogue, specifically, was tracking the urination cases for the commandant, recalling a phone conference in February or March 2012 between Hogue, Gruter, Bowe and Col. Dave Bligh, then the legal adviser to Lt. Gen. Steven Hummer, who carried out the Marine Corps’ internal investigation of the urination incident.

“Mr. Hogue said that he was involved in all the things he was hired to do and all those things he was directed to do by the CMC,” Gruter says. “Mr. Hogue then said that the [urination] cases went through him. My understanding was that Mr. Hogue’s office was the legal counsel [point of contact] at HQMC for any [urination case] issue that would go to CMC or have CMC’s attention.”

The commandant's son

Gruter says in his declaration that he also protested on behalf of Mills when he saw a May 31, 2012, email in which Gen. John Paxton, then the three-star commander of II Marine Expeditionary Force at Camp Lejeune, addressed the urination cases. Attached to Paxton’s message was a position paper addressing how the Corps could handle each. It left room for Amos to approve or disapprove, and write in comments about each recommendation. A copy of that position paper, initialed by Amos, was later obtained by Clement’s lawyers this past July, bolstering their claim Amos committed unlawful command influence, they say.

Paxton’s email says the urination cases were discussed at the Executive Offsite, a quarterly meeting that includes three- and four-star generals and Sergeant Major of the Marine Corps Mike Barrett. That came as dozens of Marines in the battalion had their promotions and follow-on assignments put on hold as the investigation unfolded, according to emails exchanged between several general officers. The generals recommended unanimously to “grant well supported exceptions” to Maj. Conway, the retired commandant’s son, and another officer, then-1st Lt. Edward Leslie. Both were reassigned and promoted, but others in battalion’s leadership remained on hold.

Gruter says in his declaration that he “knew the email alone presented significant unlawful command influence issues” and would need to be produced to all of the accused Marines. “The phraseology of the email made it appear as if the CMC had given particular direction or guidance in the [urination cases] and the General Officers on the email had reached a collective agreement in the ‘execution of justice,’” Gruter says. “This is contrary to the underlying principle that a [consolidated disposition authority] exercises his or her sole independent and unfettered discretion in the determination of how to properly dispose of military justice matters.”

Within the email Gruter references, Paxton tells the commandant that “your guidance after the EOS was clear and it was communicated and was being executed.” It was written May 31, 2012, about a week after Maj. Conway’s name was published on a June 2012 officer promotion list. At the time, he was still under an administrative hold preventing his promotion.

Gruter says that, in his assessment, Paxton’s email resulted from Conway’s father’s belief that his son would not be promoted at the time.

“I base this on a phone call I received from Mr. Pete Delorier, Deputy General Counsel, on or about the last week of May asking me if Lieutenant General Mills was placing Major Conway on promotion delay/withhold,” Gruter’s declaration says. “... Mr. Delorier proceeded to inform me that General Conway had heard that his son was not being promoted and that had prompted a phone call from General Conway to either CMC or the General Counsel’s office, I was unclear to whom.”

The younger Conway was promoted to lieutenant colonel and subsequently took command of an infantry battalion in Hawaii. His father declined to discuss his communication with Marine Corps headquarters, but he released a brief statement through a spokesman.

“Like so many other aspects of what has been written on this story,” it says, “that I demanded Major Conway be released from administrative hold is absolutely BS.”

Colonel recuses himself

Gruter’s declaration also describes his interaction in late April with Lt. Col. Derek Brostek, another Marine attorney at Marine Corps headquarters. Gruter says he warned Brostek that “if there was one more incident smelling of [unlawful command influence] in these cases,” he would remove himself from handling them and urge Mills to do the same. Days later, on May 10, a professional responsibility complaint was lodged against Gruter by individuals at Marine Corps headquarters “regarding a matter that began over two years ago,” Gruter alleges.

The specifics of that matter are not spelled out in Gruter’s declaration, but a source with knowledge of the complaint against him said it is related to his handling of past legal cases involving personnel at Officer Candidates School, the facility in Quantico where prospective Marine officers undergo entry-level training, said a source with knowledge of the Corps’ legal community.

Gruter says in his declaration that he believes that “to some degree the timing” of the complaint against him was related to his threat to recuse himself from the urination cases. Once the complaint was lodged, Gruter says, he felt obligated to remove himself from the cases, even though Mills “protested my recusal and stated his dissatisfaction with the professional responsibility complaint.” Gruter became Mills’ chief of staff shortly afterward.

Gruter corroborates Weirick’s accusation that Marine Corps headquarters withheld evidence in the urination cases, especially a February 2012 memo from Amos to the first convening authority for the cases, Lt. Gen. Thomas Waldhauser. In his signed declaration, filed July 23 in the Clement case, Waldhauser describes the commandant stripping him of his authority to prosecute the accused Marines after Waldhauser refused to promise that he would toss them all out of the Corps. The commandant wanted the Marines “crushed,” Waldhauser says in that document. Shortly afterward, Amos named Mills the new consolidated disposition authority — signaling possible unlawful command influence, Weirick, Gruter and Clement’s defense attorneys say.

Amos’ memo to Waldhauser states the commandant believes “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.” Marine officials contend that in removing Waldhauser afterward, the commandant sought to preserve the military justice process after his misstep.

But Weirick and Gruter contend Amos’ rationale for removing Waldhauser was hidden not only from them, but from Mills. Legal experts say the Corps had an obligation to produce the memo as evidence for all eight of the other urination cases. That this was not done, they say, raises questions about fairness.

Gruter says in his declaration that if he had known Waldhauser was removed “because of his disagreement with the CMC,” he would have advised Mills to proceed differently and recommended nonjudicial punishment for all of the Marines involved, rather than some form of court-martial. If the Marines would have refused NJP, Gruter says, he would have advised Mills to forward oversight of their cases to the commandant.

Gruter closes his declaration by stating that Mills “has acted in the most utmost professional manner” in regard to the cases at all times — but he levels a stinging accusation at the lawyers within Marine Corps headquarters. As the facts surrounding Amos’ decision to swap convening authorities were disclosed, Gruter says, “it was clear to me the most relevant facts had been withheld from me and that my ability to independently and fully advise Lieutenant General Mills was severely and systematically interfered with by Judge Advocate Division.”

The consolidated disposition authority for the cases is now Lt. Gen. Kenneth Glueck, who assumed command of Marine Corps Combat Development Command in August. Mills was nominated in April to become the commanding general of Marine Corps Forces Reserve and Marine Forces North, with headquarters in New Orleans.

Attorney out at HQMC

There also is at least one personnel change taking place at Marine Corps headquarters: Delorier is on his way out. A retired Marine lieutenant colonel, he served as Hogue’s deputy in the commandant’s legal office. He is preparing to relocate to Camp Lejeune, N.C., into a job below his current pay grade, fueling speculation the move is involuntary, sources say.

After Delorier’s appointment to the Senior Executive Service in August 2010, his stature matched that of a general officer. A spokesman for the commandant, Lt. Col. Wes Hayes, said Delorier has “performed admirably and successfully as a senior executive for the last three years.” Hayes also noted that Camp Lejeune is near Delorier’s family home.

“He’s been commuting from North Carolina since he joined the Department of Navy Office of the General Counsel as a civilian attorney approximately seven years ago,” Hayes said.

Delorier was involved in the decision to classify the 3/2 investigation, preparing the action memo dated Feb. 29, 2012, and approved by Tryon. The document was sent to Tryon from Hogue after Weirick and Gruter protested the order from headquarters to classify witness interviews and other investigative materials, according to a report Weirick filed to the Department of the Navy Central Adjudication Facility, part of NCIS responsible for determining eligibility for security clearance.

Weirick’s complaint alleges Hogue, Delorier and Bowe sought to classify evidence 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” — all breaches of an executive order, signed by President Obama, defining what constitutes classified national security information and what does not. Weirick asked the agency to determine whether the commandant’s lawyers still merit their security clearances, and whether “they still possess the requisite reliability and trustworthiness such that entrusting them with access to classified information is clearly consistent with the interests of national security.”

Gibson said Tryon classified the videos in an effort to make sure they were not used as propaganda to incite violence against deployed U.S. forces. Security was heightened in Afghanistan at the time amid deadly protests provoked by reports that personnel at Bagram Air Base had inadvertently burned religious materials, including copies of the Koran, Islam’s holy book.

“At that time, Marine Corps officials believed that unauthorized disclosure of the information and images result in damage to national security, to include increasing operational and strategic risk,” Gibson said. “They further determined that continued classification was necessary to prevent further incidents of attacks in Afghanistan and to protect international relations in the region.”

Gibson said Tryon requested that CENTCOM review the decision to classify the videos a couple of months later, on April 5, 2012. That came after Weirick had raised the issue repeatedly with U.S. security professionals behind the scenes, emails show. CENTCOM declassified the videos in June of last year, as they became needed in legal proceedings for the Marines accused.

Congressman Walter Jones, whose district in eastern North Carolina includes Camp Lejeune, contacted the Department of the Navy Central Adjudication Facility on Aug. 8 seeking a progress update on Weirick’s classification complaint. Attempts to reach Delorier were unsuccessful.

Staff writer Andrew deGrandpre contributed to this report.

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