A New York district court judge has ordered the Marine Corps to answer allegations of wrongdoing in the administrative hearing of Maj. Jason Brezler, a Reserve civil affairs officer recommended for separation last year despite testimony from defenders who called him an exceptional Marine.
Signed by Judge Joseph Bianco of Brezler's home state of New York, the Dec. 22 order requires the Marines, the Navy, and Marine Forces Reserve commander Lt. Gen. Richard Mills to answer Brezler's claims that the proceedings against him were so flawed they should be thrown out. A response to the order is due by Jan. 16mid-January.
In a motion filed this month alongside a lawsuit asking for relief, Brezler said the transcript produced by the Marine Corps following his December 2013 three-day board of inquiry — a document containing some 1,548 instances of the word "inaudible" — containeds numerous inaccuracies. The document containedingsome 1,548 instances of the word "inaudible," and by dint of its insufficiency and the delay in producing it, violated his due process rights and military regulations, according to the motion.
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A Marine Corps spokesman at Headquarters Marine Corps said all inquiries about the case would be handled by the Department of Justice. Nellin McIntosh, a spokeswoman for the U.S. Attorney's office for the Eastern District of New York, said the department had no comment.
Brezler first came under scrutiny in 2012 when he sent an email containing a classified document to Marine colleagues in Afghanistan from his personal email account. Brezler said he did so to alert troops to an imminent war zone threat: about Sarwar Jan, a corrupt Afghan police officer with alleged ties to the Taliban who had resurfaced at on a Marine base:Forward Operating Base Delhi, a Marine outpost in the Garmser district of Helmand province.
Defenders of Brezler say his warning could have saved the lives of three Marines gunned down on the base by one of Jan's teenage servants just weeks after Brezler sent his email. But the board found his improper treatment of classified information and his possession of more classified documents on a personal hard drive amounted to professional misconduct.
Brezler's lawsuit alleges he was investigated with uncommon aggressiveness because he had enlisted the support of as a result of congressional inquiries from Rep. Peter King, R-N.Y., with whom he had communicated as a constituent about the investigation. He also claims that media attention surrounding the case accelerated the events that led to his board of inquiry. Marine Corps Times has previously reported on emails from Marine generals, including then-commandant Gen. Jim Amos, expressing interest in the case as nmedia reports emerged.
In November, the Defense Department Inspector General cleared Mills of whistleblower reprisal, saying he was not motivated by retaliation when he ordered Brezler's case to a board of inquiry. However, the report found one of Mills' statements about the case not credible.
"Although [Mills] denied that he read the [Marine Corps Times] article, we find it more likely than not he would have reviewed an article the commandant of the Marine Corps sent to him," the report said.
The board convened Dec. 17-19, 2013, at Marine Forces Reserve headquarters in New Orleans. By law, Brezler alleges, he should have received an official transcript by the end of February; but he did not receive one until Oct. 9, 2014.
The question of an accurate transcript was significant because the recommendation to separate Brezler from the Marine Corps could not be approved until one was available. Both Mills and Navy Secretary Ray Mabus had to sign off on the recommendation; Mills did so earlier this month. Mabus has yet to sign off on the recommendation.
According to a letter addressed to Marine Forces Reserve, four of the witnesses who testified at the BOI said they were unhappy with the transcript, which Brezler and his attorney say obscures testimony supporting Brezler.
In a portion of the transcript, Marine Maj. Andrew Terrell, who served with Brezler in Afghanistan, described the nature of the classified document he sent: "I didn't even recall it being classified so if [inaudible]. I remembered some of the content of it [inaudible]."
In reality, said Brezler's attorney, Kevin Carroll, who represents him pro bono for the firm Quinn Emanuel, Terrell said the following: "I didn't even recall it being classified so if I thought it was unclassified, then anything more than that would be 'over-classified.' I remembered some of the content of it. It was historical and did not contain source information. Most of the sources were Major Brezler and myself."
Because of the transcript's failures, Carroll said, the record of trial is invalid.
"[Lt. Gen.] Mills purported to review of the facts of Major Brezler's case, by means of an incomprehensible and gibberish-filled transcript, before concurring with the recommendations of the board," Carroll said in a statement. "This suggests the sham nature and predetermined outcome of the proceedings against [Brezler] in New Orleans."
Brezler's lawsuit is the second in just a few months to call for a civilian court to adjudicate alleged Marine Corps malfeasance surrounding the FOB Delhi insider attack.
In October, family members of fallen Marine Lance Cpl. Gregory Buckley Jr., one of the troops killed in the attack, filed their own lawsuit in the Eastern District Court of New York, alleging the failure of the Marine Corps to release details about the attack was an illegal effort to suppress information.
