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Dunford fielded tough questions on military justice before his confirmation

Jul. 29, 2014 - 06:00AM   |  
Joseph Dunford
Gen. Joseph Dunford testifies on Capitol Hill in Washington on July 17 before the Senate Armed Service Committee hearing on his nomination to be the next commandant of the Marine Corps. (Lauren Victoria Burke/The Associated Press)
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Correction:
An earlier version of this story incorrectly described Robert Hogue’s comments concerning the service’s treatment of Maj. James Weirick, a Marine attorney and whistle-blower. Hogue, counsel for the commandant, defended the decision to fire Weirick and serve him with a restraining order.

Before Gen. Joseph Dunford appeared before the Senate Armed Services Committee for his confirmation hearing July 17, he answered a long list of the committee’s questions on topics ranging from acquisition challenges to suicide prevention.

Made public at the start of the hearing, the 22-page list of questions and responses includes an unusually specific line of query: five questions pertaining to the commandant’s legal advisers and their proper role in military justice. Dunford’s answers, said members of the military legal community, showed an encouraging grasp of the way the system ought to work.

“Who has responsibility for providing legal advice on military justice matters in the Marine Corps?” The committee asked. And “What is the role, if any, of the counsel for the commandant in the duty assignments of Marine Corps judge advocates?”

The questions originated with civilian attorney L. Lee Thweatt, a former Marine who included them for consideration in a letter to all members of the Senate Armed Services Committee. Thweatt has been outspoken about his concern for the Marine Corps justice system, particularly with regard to the treatment of Maj. James Weirick, a Marine attorney who filed a series of complaints to the Defense Department inspector general. Weirick’s complaints alleged efforts by the commandant and his civilian advisers illegally influenced military justice regarding Marines accused in the infamous 2011 scout sniper urination scandal.

Weirick was later fired after sending a bizarre, strongly worded email to Peter Delorier, deputy counsel for the commandant.

Last fall, Thweatt sent a letter to Paul Oostburg Sanz, the top civilian attorney for the Navy, asking for a professional censure for Robert Hogue , counsel for the commandant. Hogue had defended Weirick’s firing and other actions taken against the whistle-blower, including the decision to serve Weirick with a restraining order, telling Marine Corps Times on Sept. 27 that the recent Navy Yard mass shooting had left him “concerned for the safety of my clients and staff given the bizarre nature of [Weirick’s] communications.”

To date, investigations have not validated any of the allegations against the commandant and his staff. The Pentagon’s inspector general ruled that Commandant Gen. Jim Amos did not show favoritism in the promotion of an officer linked to the scout sniper unit, while the Information Security Oversight Office found no evidence of improper classification in order to thwart military justice.

Most recently, the IG found that the actions taken against Weirick did not constitute whistleblower reprisal on the part Amos and his staff. Sources say the office may release one final ruling regarding Weirick’s allegations. It’s not clear whether the IG plans to investigate his claim that Amos removed the three-star general overseeing the prosecution of those charged in the scout sniper case, Lt. Gen. Thomas Waldhauser, because he refused to promise they would be “crushed” and thrown out of the service. Amos has denied that he ever asked that the Marines be crushed.

Dunford answered the questions conservatively, citing Navy policy to outline precise roles. One question requested he outline the specific legal responsibilities of the staff judge advocate to the commandant—the top Marine Corps attorney—and the counsel for the commandant, a civilian position.

Dunford responded that the SJA to the commandant was senior uniformed legal adviser to the commandant and Marine Corps headquarters, overseeing military justice, civil and administrative law, and ethics, among other areas. The general counsel of the Navy, he said, was tasked with providing legal advice to the Marine Corps in areas including business and commercial law, acquisition law, and fiscal and environmental law.

The counsel for the commandant, he said, has no formal role in assigning Marine attorneys, as that responsibility was the commandant’s alone. It was essential, Dunford said, that the SJA to the commandant provide independent legal advice to him.

“The SJA to CMC’s legal advice is independent because he is not subject to evaluation or supervision in the content of his advice from anyone other than the commandant,” Dunford wrote. “Fundamental to the duty to provide independent advice is the need for that advice to be provided without any form of interference by others.”

Thweatt said he had not communicated with the Senate Armed Services Committee since submitting his letter and was not sure who on the panel decided to include his questions in the list that went to Dunford, but said he was pleased by the decision. He also ventured a guess at the reason the committee included the questions.

“It’s probably an implicit and explicit signal to Gen. Dunford that the unlawful command influence issues that were raised in Gen. Amos’s tenure should not be repeated,” he said.

John Dowd, a civilian attorney who represented one of the defendants accused in the infamous Marine sniper urination scandal, said he was heartened to see the future commandant demonstrate his understanding of proper roles in military justice.

“His answers were a bulls-eye. It was perfect,” Dowd said of Dunford’s responses. “If anybody on the civilian side of the Marine Corps needed a message, they got it, right there.”

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