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Marine officer in urination scandal asks Navy secretary to review his case

Nov. 19, 2013 - 06:00AM   |  
Capt. James Clement
Capt. James Clement ()
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A Marine officer facing the end of his military career over an inappropriate war-zone video has asked Navy Secretary Ray Mabus to review the decision, saying it was unfairly influenced by a top general’s alleged desire to see him punished.

Following an administrative hearing in October, a panel of senior Marine officers recommended Capt. James Clement should be separated from the service with an honorable discharge for allegedly failing to supervise a group of scout snipers who in 2011 made a video that showed them urinating on dead insurgents in Afghanistan. Clement’s defense counsel, John Dowd, wants Mabus and attorneys from outside the Marine Corps to review the case, which was overshadowed by claims that Marine Corps Commandant Gen. Jim Amos and others close to him sought to influence its outcome.

Dowd contends the three colonels overseeing Clement’s hearing, what’s formally knows as a board of inquiry, were “following the unlawful ‘guidance’ of the commandant to ‘crush’ those charged in the [sniper] cases and throw them out of the Marine Corps,” according to the 23-page appeal he wrote. “... The finding of separation is the project of unlawful command influence and is, for that reason, null and void.”

The language in Dowd’s appeal refers to a sworn statement made last summer by Lt. Gen. Thomas Waldhauser, to whom Amos originally gave oversight of prosecuting the urination cases. Waldhauser said Amos stripped him of his authority after he refused to promise the commandant that those charged in connection with the video scandal would be thrown out of the Marine Corps.

A Marine Corps spokesman, Col. Sean Gibson, offered the following statement Tuesday in response to questions about Clement’s appeal.

“We received the letter today as part of the post-BOI process,” said Gibson, a spokesman for Marine Corps Combat Development Command, which ultimately oversaw the cases’ disposition. “We will review it, endorse it, and forward it to SecNav via Headquarters, Marine Corps in accordance with standing procedures.”

In all, eight Marines faced disciplinary action in connection with the incident. Clement had been scheduled to face court-martial in November, but the Marine Corps suddenly dropped the criminal charges against him and elected instead to hold an administrative hearing.

Led by Dowd, Clement’s defense team argued that Amos and several of his legal advisers took extraordinary measures to ensure he would be punished. Among their claims, Clement’s attorneys suggested the Marine Corps improperly classified evidence, including witness interviews.

That issue first was raised last March by Maj. James Weirick, a Marine attorney then working as an adviser to the general whom Amos chose to replace Waldhauser. Weirick filed a complaint with the Defense Department Inspector General alleging the commandant’s legal advisers sought to classify evidence assembled during the urination video investigation in violation of an executive order, signed by President Obama, defining what constitutes classified national security information and what does not.

Earlier this month, he also filed a complaint with the Information Security Oversight Office asking officials there to address the matter. The agency, which answers to the president, is responsible for policy and oversight of the government’s security classification system.

Weirick’s attorney, Jane Siegel, said he also met with IG investigators this month to discuss what he believes are whistle-blower reprisal actions — most recently, a poor performance review — intended to punish him for speaking out. A spokeswoman for the IG’s office, Bridget Serchak, has said the office cannot comment on ongoing investigations.

Dowd, too, has filed a complaint with the Defense Department IG. After Clement’s hearing concluded, he alleged that Amos tried to rally subordinates to publicly oppose testimony given by Gen. John Kelly, commander of U.S. Southern Command, who spoke in Clement’s defense. The commandant’s office has declined to address the merit of Dowd’s allegations except to say that Amos has tremendous respect for Kelly.

In his appeal to Mabus, Dowd reiterates Clement’s position that he was assigned to the scout sniper patrol as a radio operator and not in a position to evaluate their alleged misconduct, which centered on the discharge of a grenade launcher and their lack of protective equipment. The argument that Clement failed by doing nothing does not stand up to scrutiny, he told Marine Corps Times.

“His job was to maintain the radio and maintain communications, which he did very well, because that’s where the trouble was on these patrols,” Dowd said. “... You can’t play ‘should-have.’ It’s just not part of our system of justice.”

The appeal asks that the hearing officers’ recommendation to separate Clement be disapproved and his case closed “so that he can continue, untainted, his transition out of the Marine Corps to civilian life.” Dowd said it’s unclear when he will receive a response from Mabus’ office.■

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