A reserve officer who was recommended for discharge from the Marine Corps three years ago for mishandling classified documents while attempting to warn colleagues downrange about a threat can stay in the service, at least for now, a federal judge ruled this week.
In a decision published Tuesday, New York Eastern District Court Judge Joseph Bianco threw out the December 2013 board of inquiry administrative finding against Maj. Jason Brezler, saying the military had failed to provide him full adequate records of the procedure and documents relevant to his claims that he was a victim of whistleblower retaliation.
The Navy must arrange a new board of inquiry for Brezler, Bianco decided, so he can "fully and fairly" present evidence on the issues.
"This is a stunning rebuke of the fundamentally unjust proceedings to which this decorated Marine was subjected for over three years," Brezler's attorney, Michael Bowe, said in a statement.
"The judge correctly found that highly relevant documents and information were withheld from the defense, that the excuses for doing so were 'completely unsupported,' and that Major Brezler was 'completely deprived … of any meaningful opportunity' to rebut critical claims," he added. "Most important, the Court outlined in detail the powerful evidence that Major Brezler was illegally retaliated against in rejecting the argument that there was no evidence of retaliation."
At issue for Brezler, a New York City firefighter and a Bronze Star recipient, is a 2012 email he sent from his personal Yahoo account that contained a classified document cataloguing the threats presented by an Afghan policeman, Sarwar Jan. Jan was suspected of having ties to the Taliban and abusing young boys, as Brezler knew from his 2010 deployment to the Afghan region of Now Zad as a civil affairs officer.
For some, fears about the policeman would be confirmed when a teenage boy employed by Jan, Ainuddin Khudairaham, killed three Marines at Forward Operating Base Delhi on Aug. 10, 2012v -- two weeks after Brezler's email.
But the military never officially linked Jan to the violent attack, and attention focused instead on Brezler's mishandling of classified information, a serious offense in the military. At Brezler's board of inquiry, prosecutors would argue that he had also brought home from his 2010 deployment a small hard drive containing classified documents, and that it appeared he planned to use the documents to inform a book project, "Rebirth of Apocalypse Now Zad," which he later abandoned.
From the start, however, many have championed Brezler as an exceptional Marine who acted fast to warn troops about a man who he believed presented an immediate danger. Nine character witnesses testified at his board of inquiry.
The list included Maj. Gen. Lawrence Nicholson, then commander of 1st Marine Division, who said Brezler's contributions in Iraq and Afghanistan "rank among the most important I've seen in the most challenging settings." State Department official John Kael Weston compared Brezler to Gen. Joseph Dunford, now chairman of the Joint Chiefs of Staff, saying he would want to serve alongside both in a war zone.
And the family of one of the Marines killed at Forward Operating Base Delhi, Lance Cpl. Greg Buckley Jr., has steadily supported Brezler, saying his warning, if heeded, might have prevented the attack.
More recently, some have compared Brezler favorably with 2016 Democratic presidential nominee Hillary Clinton, who was investigated by the FBI after it was revealed she had used a personal email server for official business while Secretary of State. The investigation found Clinton had been "extremely careless" with sensitive information, some classified, but did not recommend that she be criminally charged.
Brezler first claimed he was experiencing whistleblower retaliation in early 2013, reaching out to Rep. Peter King, a Republican from New York, alleging that he received an improperly negative fitness report while he was under investigation for mishandling the classified document.
King queried the Marine Corps about the complaint, triggering a flurry of emails from then-commandant Gen. James Amos and other senior generals, correspondence that was later reported in Marine Corps Times. But while the Marine Corps has maintained no retaliation occurred, the court found the service failed to provide Brezler with evidence to support this claim.
"Indeed, the government has never argued in the instant action that plaintiff's retaliation arguments were irrelevant to the BOI, but rather has repeatedly asserted that the Navy carefully examined and rejected those claims throughout the administrative review," Bianco wrote.
"In short, this Court finds that Major Brezler lacked the relevant documents necessary to fully and fairly litigate his retaliation claims, and that the Navy's failure to provide those materials violated its own discovery rule under the particular circumstances of this case," he wrote.
It's not clear when a new board of inquiry would be scheduled for Brezler, whose career has now been in limbo for more than three years. The Marine Corps did not immediately have a statement in response to the court's ruling.