Sniper prosecutions tainted, attorneys argue
The defense attorneys for two Marines facing courts-martial in connection to the notorious video showing scout snipers urinating on Taliban corpses in Afghanistan are calling on the Corps to drop the cases against their clients, and reverse punishments against two others, following allegations that leadership deliberately interfered with the prosecution.
Guy Womack, a civilian who represents Sgt. Robert Richards, a scout sniper team leader with 3rd Battalion, 2nd Marines, during their 2011 deployment, said the recent allegations that Gen. Jim Amos, commandant of the Marine Corps, used his influence to alter how the case was being handled have convinced him that his client cannot receive a fair trial from the Corps.
And John Dowd, who is representing Capt. James Clement, the former executive officer of Kilo Company, 3/2, said he agrees with Womack’s call to dismiss the cases.
Dowd has previously referred to the case against his client as “nothing but a witch hunt.” Clement would not accept nonjudicial punishment, Dowd said, because the captain “refuses to be a scapegoat for the political hysteria” surrounding the case.
Two other Marines, then-Staff Sgts. Joseph Chamblin and Edward Deptola, already have faced special courts-martial for their roles in the incident. Both were reduced in rank to sergeant and Chamblin was ordered to pay a fine. Another four Marines have been NJPed in connection to the incident.
Womack said he believes the Marine Corps should adjust what has been done to Deptola and Chamblin. When they faced court-martial, they were unaware of the complaints that Maj. James Weirick, an attorney assigned to Marine Corps Combat Development Command in Quantico, Va., filed with the Navy and Defense Department Inspector Generals’ offices about how the case was handled at the top.
The video of the scout snipers urinating on Taliban corpses was created near Sandala, in Helmand province, on July 27, 2011. When it surfaced online about five months later, it created enormous backlash at home and abroad, embarrassed the service and led Amos to tour the Corps to give his Heritage Brief to officers and noncommissioned officers.
By calling out Richards by name during those 27 briefs, pointing him out as an example of what not to do, Amos tainted the jury pool and ensured his client could never get a fair trial, Womack said.
“It would be impossible to find Marine Corps officers who you could trust to be uninfluenced in any way by what their own commandant has said,” Womack said. “So by his actions, the commandant has eliminated the Marine Corps from being able to handle this case.”
‘A tough position’
Gary Solis, a retired Marine officer who served as a military judge and now teaches law at Georgetown University, said the issue of unlawful command influence can leave a commandant in a tough position.
“If he doesn’t say anything about a case like this, he looks like he’s not a leader; he’s just a passenger, and someone else is driving the truck,” Solis said. “If you are the commandant, you are bound to say something.”
The tougher issue Amos will have to get around, Solis said, is his decision to swap generals in the middle of the investigation.
Amos initially assigned the case to Lt. Gen. Thomas Waldhauser, then commander of Marine Corps Forces Central Command. Since MARCENT oversees operations in Afghanistan and serves as the convening authority in judicial matters tied to the war zone, the choice appeared logical.
Womack said he believed he had an agreement for Richards to receive NJP from Waldhauser, but just before Richards flew out to meet with Waldhauser in February 2012, Womack received word that the meeting had been canceled.
Weirick’s complaint alleges that once it became apparent that Waldhauser wasn’t going to punish the Marines to the degree the commandant saw fit, Amos turned the case over to Lt. Gen. Richard Mills, commanding general of Marine Corps Combat Development Command, which is Weirick’s command.
Womack said he was told the switch was made because it had been determined that the issue of the snipers urinating on the bodies was a training issue rather than an operational issue.
“What could be more operational than a sniper killing someone and peeing on them?” Womack asked. “A sniper killing someone is about as operational as you get.”
Amos’ decision to switch generals mid-course could prove to be a real challenge for the commandant to overcome, Solis said.
“Anytime a senior officer becomes involved in a case that’s underway, you’re asking for trouble,” Solis said. “Without knowing the details with the switch — without knowing any more than the fact that they switched — I would say this is going to be more trouble than the claim of unlawful command influence [stemming from the Heritage tour].”
Solis expects the cases for Clement and Richards to proceed as planned, although the government will have to answer questions during the courts-martial about why things were handled the way they were, which could affect the outcomes.
In the meantime, the allegations made in the IG complaints should be investigated by the Defense Department inspector general completely and fairly, but as as quickly as possible, said Eugene Fidell, who teaches military justice at Yale Law School.
Given this case and the huge controversy surrounding the military’s handling of sexual assault complaints, Fidell said he can’t recall a time when there was so much public scrutiny of the military justice system. Still, it’s important for people to not leap to conclusions, he said.
“I think that it’s critical that both sides be heard from, and that no one rush to judgment,” Fidell said. “The allegations are serious, and I am personally anxious to see what the response is.”