Marines Drop Court Martial Charges in Taliban Urination Case Amidst Allegations of Unlawful Command Influence

Posted by Jason Van Steenwyk marines court martial taliban urination caseIn the latest development in the strange prosecution of several marines accused of urinating on Taliban corpses in Afghanistan, the Marine Corps has abruptly dropped charges against a Marine captain they had accused of failing to adequately supervise his troops. They are still moving forward with an administrative inquiry, however, which could lead to the captain’s involuntary removal from service under ‘other than honorable’ conditions.

A videographer had filmed several marines from the 3rd Battalion, 2nd Marine Regiment, urinating on the corpses of what were Taliban fighters. The Marines themselves were members of the battalion Scout/Sniper Platoon, then operating in Helmand Province.

Two marine NCOs received non-judicial punishment for desecrating the bodies of combatants – a violation of the Geneva Conventions and the UCMJ, while a third NCO pled guilty to failing to report misconduct and making false statements about his knowledge of the incident.

Only one officer, Capt. James V. Clement, was charged in the incident. He was acting as the Kilo Company, 3/2 Marines executive officer at the time. The Marine Corps had charged Clement with failing to supervise, failing to correct misconduct and with making false statements. Clement denied wrongdoing, and determined to fight the charges. 

The Marine Corps decision to drop the court martial charge came as another marine officer, Lt. Gen. Thomas Waldhauser, came forward accusing the Marine Corps Commandant, Gen. James Amos, of exercising unlawful command influence. This is a violation of Article 37 of the Uniform Code of Military Justice.  

Military Authority has dealt with the unlawful command influence question here and here.

According to Waldhauser’s sworn statement, Amos had asked Walthauser to be the convening authority in the Clement’s court martial. Amos also provide command guidance to Waldhauser that he wanted the marines in the video “crushed,” and that he wanted them out of the service at the end of the day.

Amos later changed his mind and relieved Waldhauser of the assignment, and had another officer  take over the case. But the damage to the prosecution was done: Clement’s defense team demanded access to all Amos’s personal an official emails in order to gather further evidence of unlawful command influence. When it became clear the Marine Corps would have to comply, the Commandant dropped the charges.

That means the criminal case is off the table. But Amos is still trying to have Clement separated from the service, and has ordered a board of inquiry to convene to determine whether Clement was guilty of misconduct, and whether he should be retained or involuntarily separated from the service.

However, if  a court martial, with all its internal checks and balances built into the system, was so tainted by unlawful command influence that it could not be trusted to prosecute an officer in a high profile case, it is difficult to imagine why an administrative board of inquiry, formed outside of the UCMJ, would not be compromised in exactly the same way, and for exactly the same reason.

The Marine Corps should drop the charges against Clement at the very least, and consider dropping all but the desecration charges against the other marines who were punished in the case.

Further reading: Chapter 12 from the Judge Advocate General Advanced Course text, dealing with unlawful command influence. 


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