The fight over an alleged whistleblower reprisal for sending unlawful classified material to warn Marines of a potentially dangerous police chief in Afghanistan continued this week.
New York firefighter and Marine Reserve Maj. Jason Brezler, along with attorney Kevin Carroll, who represents Brezler pro bono for the firm Quinn Emanuel, was back in the U.S. Eastern District Court of New York on Monday. They were there contesting the U.S. government's motion to dismiss Brezler's whistleblower retaliation claim against senior U.S. Marine Corps leadership, according to an emailed statement from Carroll.
A decision should come within the next week or two, according to a former JAG officer.
"I doubt the judge would have ruled today," former Marine Lt. Col. James Weirick said. "Likely there will be a written opinion issued by the court in the next 10 days or so."
Brezler came under scrutiny three years ago for sending classified information from his personal Yahoo email account to warn Marines about Afghan police chief Sarwar Jan. Jan served on Forward Operating Base Delhi in the southern Helmand province of Afghanistan, alongside Marines from Camp Lejeune's 3rd Battalion, 8th Marine Regiment, during its 2012 deployment.
Brezler contends that he accidentally took the classified documents home after his 2010 deployment to Afghanistan with 3rd Battalion, 4th Marines out of Twentynine Palms, Calif. The contents of Brezler's email are still classified.
During that 2010 deployment to Afghanistan, Brezler lobbied for Jan's removal based on multiple allegations of indecency and facilitating support to Taliban forces by participating in Afghanistan's widespread illicit narcotics and arms trafficking trade and running a child-kidnapping ring throughout the province, according to Brezler's attorney.
After Brezler reported his suspicions about Jan, he and his colleagues persuaded the Now Zad provisional governor to oust Jan from his position as chief of police and ultimately remove him from the province, according to Marines who served with Brezler in 2010.
Two years later and 7,000 miles away at graduate school in Oklahoma, Brezler learned that Jan had returned to his old position in Now Zad. Brezler subsequently sent the classified documents he had brought home regarding Jan to warn Marines in the field with Jan about his proclivities. Seventeen days later, on Aug. 10, 2012, one of the teen boys that Jan kept in his home gunned down a group of unarmed Marines, killing Marine Staff Sgt. Scott Dickinson, 29; Marine Cpl. Richard Rivera, 20; and Marine Lance Cpl. Gregory T. Buckley Jr., 21. A fourth Marine sustained five gunshot wounds but survived.
An Afghan court later found the teen guilty and he was sentenced to seven and a half years in confinement, according to Marine Corps officials.
Brezler was accused of violating several federal laws under the 1917 Espionage Act, including removal and retention of classified documents and the subsequent disclosure of them on a unauthorized network. He was referred to a board of inquiry hearing over the unlawful classified leak. The board subsequently recommended Brezler be dismissed from military service -- disciplinary action that Brezler contends is whistleblower reprisal.
The generals named in Brezler's claim include incoming commandant of the Marine Corps, Lt. Gen. Robert Neller; former Commandant Gen. James F. Amos; and Lt. Gen. Richard P. Mills, who is retiring at the end of September.
Last year, the Defense Department's Inspector Generals Office found that Mills was not in violation of the Pentagon's whistleblower protection act when Mills recommended Brezler to a board of inquiry hearing over the classified documents.
"The fact that Mills pushed for the punishment of Brezler, despite the Marine Corps not going after the officers who allowed the police chief access to the base after Brezler's warning, raises serious questions of favoritism," Brezler's attorney Carroll told Foreign Policy magazine in 2013.
"With Mills' retirement, I suspect Neller may be substituted as the defendant. We'll see, that's really up to the government," Carroll told The Daily News. "We hope the judge will deny the government's motion to dismiss Major Brezler's whistleblower retaliation claim."
Monday's hearing came just 24 hours after a New York Times report released Sunday painted an unflattering picture of U.S. military leadership, claiming U.S. Army soldiers, as well as the U.S. Marines at FOB Delhi, were told to ignore the sexual assault abuses being perpetrated on Afghan children on U.S. military installations by Afghan officials.
That report comes a month after four congressional lawmakers, led by New York Republican Rep. Dan Donovan, sent a letter to President Barack Obama calling for an independent investigation into the events that led up to the Aug. 10, 2012, FOB Delhi attack.
The letter, which was also signed by fellow New York Republican Reps. Peter King, Tom Reed and Christopher Gibson, calls for an outside Defense Department investigation that would center on multiple allegations of impropriety and whistleblower retaliation.
"These include sex assaults of Afghan youngsters on a U.S. military base, the preventable murders of three Marines, the shameful abuse by the Marine Corps of those fallen Marines' families, and illegal whistleblower retaliation against Jason Brezler, a highly-decorated Marine Reservist and FDNY fireman," according to the letter and an emailed statement from Brezler's attorney.
"It should never have taken this many years and the New York Times to disclose this dirty secret senior military commanders have tried to keep quiet for so long," Michael Bowe, an attorney who represents the Buckley family, told The Daily News.
"The Marine Corps has misled and stonewalled the Buckley family for three years, and devoted all its effort instead to punishing the one Marine, Major Brezler, who tried to save their son and get them answers," Bowe said. "We should never permit our 'partners' to engage in rape or murder under our authority, force our young men to put up with it, or punish them."