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I become Executive Officer to Maj Gen Dave Morehouse,
AF Judge Advocate General.
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I was a Lieutenant Colonel and was awaiting
promotion to full Colonel.
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Based in large part on the effort of Army General
Counsel William J. Haynes, the DOD General Counsel
Terry O'Donnell, attempts to place all uniformed lawyers
in the military services under the civilian general
counsels via Undersecretary of Defense Policy
Memorandum. Congress intervenes, telling DOD
General Counsel nominee, David Addington, that he will
not be confirmed as DOD GC unless the memo is
rescinded. It is.
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The service Judge Advocates General
presented a solid front to Congress opposing
the politicization of military legal advice. The
entire event becomes known as the "hostile
takeover" attempt of David Addington and "Jim"
Haynes. See my National War College Paper
documenting these events.
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I am visited at my apartment in DC for a weekend by a
female judge advocate. We met during one of my visits
at an AF base. We are not in any supervisory
relationship. We are both unmarried. We have a single
romantic involvement that weekend.
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The woman and I do not continue any romantic
involvement, but remain friends. I provide
ongoing career mentoring until my retirement.
The IG Investigation characterizes this as an
inappropriate relationship. Later it is
characterized as an "affair".
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Maj Gen Morehouse retires from active duty. I am
reassigned as a student at the National War College at
Fort McNair in DC.
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I write the above paper on the "hostile
takeover" attempt.
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Carolyn and I, having become serious in our relationship
during my year at National War College are married at Ft.
McNair, in DC.
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Perhaps the most beautiful day I've ever seen
in DC.
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Carolyn and I move with her two children to Travis Air
Force Base, CA, where I become the Staff Judge
Advocate for 15th Air Force.
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In October 1994, we are thrilled to learn that
Carolyn is pregnant.
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I am deployed to Joint Task Force Saudi Arabia in Riyadh
for Operation Southern Watch. I serve as Staff Judge
Advocate and Chief of Staff to the Commander.
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I meet then Lt. Gen John Jumper and then
Colonel John Corley.
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Carolyn and I lose our pregnancy.
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I can't recall ever having been so low.
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We are reassigned to Hickam AFB, HI. I serve as Staff
Judge Advocate for Pacific Air Forces.
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I meet then Maj Gen Steve Polk, later the AF
Inspector General.
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I am selected for promotion to Brig Gen.
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It is announced that I will be assigned as Staff
Judge Advocate of Air Combat Command,
Langley AFB, VA.
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We arrive at Langley AFB, VA, and I am promoted to
Brigadier General.
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I am notified that I have been selected to become the
Deputy Judge Advocate General.
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I am sworn in as Deputy Judge Advocate General and
promoted to Major General.
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I had been a Brigadier General for only 10
months.
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I am in my Pentagon office speaking to our European
Headquarters about the World Trade Center attack when
a hijacked airliner strikes the Pentagon.
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The next day we were back at work in the
choking smoke and dust putting together
security plans and manning the Crisis Action
Center.
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It is announced that I have been selected to replace Maj
Gen Bill Moorman as Judge Advocate General in
February 2002.
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The Senate Armed Services Committee staff
extracts a promise from me to advise them if I
believe military legal advice is not being heard.
I promise candor.
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November 2001- April 2002
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DOD GC convenes a "working group" of the services'
civilian GCs and the Judge Advocates General, to
prepare for implementation of the President's Executive
order mandating military commissions to prosecute
detainees from Afghanistan who are being interned at
Guantanamo.
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It was clear that the Executive Order was largely
lifted by the White House from a similar order
issued in 1940's following WW II.
I recall feeling how strange it was to have the
civilians arguing for the harshest possible
application of the Executive Order while the
uniformed lawyers argued for some semblance
of modern due process. Strangely, the
uniformed lawyers found themselves the
"liberals" in the room arguing for a system in
which the American people and the rest of the
world could see the application of American
values. I repeatedly argued for rules of
evidence, proof beyond a reasonable doubt,
lawyer counsel for detainees and "public" trials.
Following her confirmation as Air Force GC,
Mary Walker repeatedly tells the group that my
views on due process are not the official views
of the Air Force.
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Mary Walker is confirmed as Air Force General Counsel.
She has been in Republican administrations before in
three other executive agencies.
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Walker tells a group of senior Judge Advocates
that she wants the relationship between the GC
office and TJAG office to work like "Fred and
Ginger". She fails to mention that she intends
to be Fred.
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I am sworn in as the 14th AF Judge Advocate General.
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In my remarks to the nearly 300 people in
attendance, I hold out an olive branch to Mary
Walker and the GC's office staff.
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Mary Walker comes to my office to inform me that the mix
of legal functions between the TJAG an GC offices is all
wrong and that she intends to give the GC office much
greater authority over the legal advice provided by
uniformed military lawyers.
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I agreed that we could explore how to better
serve our clients. I attempted to explain that
the functions of the respective staffs had
evolved over the course of the entire history of
the Air Force and should be disturbed only with
careful thought and planning. She is not
amused.
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Walker makes a trip to visit Air Force facilities in the
middle east. She returns from the trip with a long litany
of complaints about the legal services that the deployed
and permanently stationed JAGs are providing. Without
showing her concerns to me, she provides them directly
to the SECAF and CSAF as evidence that she needs to
exert more direct supervision over Air Force uniformed
lawyers.
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This is Walker's first formal assault on the JAG
Corps. Nearly all her complaints are the result
of her lack of knowledge and understanding of
military operations and current laws and
regulations.
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At Walker's behest, the SECAF orders an independent
review of the functions of the AF GC and Judge
Advocate General to determine appropriate roles and
missions for each. Retired Generals Richard Hawley and
Bradley Hosmer are selected to conduct the review.
They spend about two months gathering data from both
the GC and TJAG offices, conduct interviews with the
clients of both staffs and make inquiries of field
commanders. Their report is thorough and concludes
that there are only minor redundancies in the two staffs
and that with minor adjustments, the system as set out
by the then existing Secretarial order is working well.
They recommend no significant changes to operations.
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Though the SECAF and CSAF receive and
approve the Hawley/Hosmer report as written, it
is dismissed by Mary Walker as "something they
could have written at the bar over a couple of
beers." Walker continues to press the SECAF
for changes to operations. She goes so far as
to claim the term "JAG Department" is an
inappropriate label, despite the fact that the
term "JAG Department" comes from the statute
that created the AF JAG Department in 1947.
Later, she is able to convince the Secretary that
the term "JAG Department" creates confusion
with the Department of the Air Force. The
Secretary orders that the JAG Department
change its name. I am able to convince the
Secretary to allow us to adopt the term JAG
Corps so as to equate us to the other services
terminology. Apparently, there is no
"confusion" in the similarity of names between
the Department of Defense and the
"Department " of the Air Force.
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By now Mary Walker's constant barrage of criticism of
the JAG Corps and me in particular has resulted in the
Secretary being concerned over my willingness to
"cooperate" with the AF GC. Walker has repeatedly told
me that only she deals with the Secretary on legal
matters and that any message I have for him is to be
provided through her. Though I disagree with her view,
I accede to it and send matters intended for the
Secretary through Walker. In an e-mail criticizing me
based on something Walker has told him, the
Secretary gives me an opening to go see him. I seize on
the opportunity.
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When I meet with the Secretary, I am horrified to
learn that his concern is not that I am
uncooperative with Mary Walker, but that I have
been snubbing him by not coming to see him on
legal issues. Walker has not conveyed my
reports to the Secretary and instead has told
him that she doesn't know what my position is
on various issues of interest to the Secretary. I
advise the Secretary that I will provide him with
weekly updates of information of interest to him
and will visit him periodically for one-on-one
issue sessions. Walker is furious that I have
gone to the Secretary without taking her with
me. For the next two years, I do exactly as I
promised to keep the Secretary informed of JAG
activities and issues.
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A letter from a female group of former Air Force Academy
cadets alleges widespread sexual assaults and
harassment there has not been treated seriously. The
SECAF and CSAF, both of whom want to make major
changes at the Academy, see this as a great opportunity
to appear to be heroes by strongly addressing any
problems related to the treatment of sexual assault
allegations while also changing other matters at the
Academy. The Superintendent, Lt. Gen John Dallagher,
is hung out to dry over the matter. He is forced out as
Superintendent and retired as a major general. The
Secretary orders Mary Walker to review the handling of
sexual assault allegations at the Academy. She demands
I provide her with resources to conduct the inquiry, but
does not permit me to have any information regarding
her findings or to help shape her report.
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Walker no doubt sees this as a golden
opportunity to stick it to the JAG Corps one
more time. One of her deputies, Kipling W.
AtLee, is given the task of conducting the
investigation. AtLee is well familiar with the
Academy and sexual assault allegations
because he is a former AF Judge Advocate and
retired colonel. Some years before, he had
been instrumental in developing the Academy's
sexual assault policies following allegations
against a former Commandant of Cadets that the
Academy was not treating sexual assaults
seriously. In fact, an IG investigation had been
conducted of which AtLee was aware.
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Having concluded that Mary Walker is not incorporating
JAG inputs into the working group report on detainee
interrogation techniques, we feel we have no choice but
to create a "paper trail" of our objections. My
International and Operations Law Division drafts a letter
identifying our concerns that the course proposed by
Walker in her "final" report violates domestic and
international law and subjects the United States to
opprobrium from the international community.
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By the time the letter is completed, I am on
travel and it is signed out with my authority by
my deputy. It is immediately classified. Walker
is furious at the letter. She is forced to advise
the DOD GC of our objections. Ours is the first
of similar letters later sent by the other service
JAGs. We never see the final product
submitted by Walker to the DOD GC, but later
learn that it supported more than two dozen
interrogation techniques for routine use and
required DOD level approval for five others.
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Walker's internecine warfare on the JAG Corps and me
continue unabated. At her insistence, the SECAF issues
a new Secretarial Order reassigning responsibilities to
the two legal staffs. When Walker proposes to have a
greater voice over advice given to Commanders in the
field, I send a strongly worded rebuttal, supported by the
field commanders and their staff judge advocates.
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My letter is leaked and an article is published in
the Air Force Times newspaper regarding the
issue. Walker is furious and accuses me of
leaking the letter to the AF Times. As usual, this
is completely untrue. I suspect a member of her
own staff actually leaked the letter.
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Having begun to think about my departure from active
duty, I am intrigued by the Broad Foundation's Urban
Superintendent's Academy program. It provides military
and private sector leaders a ten month intensive
training program to equip them to become involved in
urban public school education at the superintendent
level. I apply and am selected from a cohort of nearly
300 for one of the 22 spaces in the program.
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While I considered all sorts of career avenues,
this one truly captured my imagination. I felt
public school superintendency could be a
continuation of my service to the nation
because I firmly believe that quality public
education is a vital and urgent matter of
national security.
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The story of Abu Grhaib detainee mistreatment breaks in
the press. Almost immediately there is a rush to
determine how the system broke down.
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The civilian leadership in DOD is in near panic.
Mary Walker is identified as having taken the
lead for the DOD in considering the
interrogation techniques for Guantanamo, later
exported to Iraq and Afghanistan by Maj Gen
Geoffrey Miller. She is dubbed the "torture
attorney" in published articles.
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I am contacted by Senator Lindsay Graham to discuss the
internal process used by the DOD GC working group to
consider detainee interrogation techniques. He wants
to know the "climate" of our discussions. He asks if the
JAGs were in agreement with the Administration position
as outlined by the John Yoo memorandum. I tell him the
TJAGs were unanimously against any policy that took the
US out of compliance with the Geneva Conventions. I
tell him I was so concerned that I had my Deputy sign out
a letter to Mary Walker in Feb 03 (see above) putting the
AF JAG on record as opposing a policy that would put us
in the category of rogue nation. He is surprised to learn
of the letter and asks if he can have a copy. I tell him
that the Memo has been classified and I will begin
looking for a way to legally provide it to him.
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At the time of Graham's request for the Feb 03
letter to Mary Walker, I knew there was great
tension in the Pentagon civilian legal
establishment over the negative publicity
triggered by the revelations of Abu Grhaib. I
knew I should go cautiously and not involve
anyone else if possible. I began to look into
how the Feb 03 letter became classified, who
had classification authority over it and who
could either declassify it or grant access to
Senator Graham. I did seriously consider
sending it to him through the mail without
regard to its classification. However, I knew
that if discovered, such an action would most
surely result in severe disciplinary action.
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When I arrive at the site of the weekly Headquarters
staff meeting, I am met at the door by a livid Mary Walker
demanding to know why I gave "Jack's CYA Memo" (the
Feb 2003 Memo signed out for me by Jack Rives
referenced above) to Mr. Scott Stuckey, a Senate Armed
Services Committee staffer. I tell her I did not provide it
to him nor did I believe anyone else did either.
Following the meeting she demands I walk with her to
her office. During the walk she berates me for giving
Stuckey the Memo, tells me that I am disloyal and trying
to make her look bad and that she is going to advise the
Chief of Staff and Secretary that I am going behind her
back to the SASC.
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I had no reason to believe that Mr Stuckey had
the Feb 03 Memo and in fact, Walker's
information was incorrect. Stuckey did not have
the memo and would not have it until the
summer of 2005 when it was released to Senator
Graham following a Freedom of Information Act
request. Walker did advise the Chief and
Secretary that I was going behind her back to
the SASC. I was called into the Chief's office to
explain why I had done it. He clearly did not
believe my protestations that I did not provide
the Memo to Mr. Stuckey.
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I take a telephone call from the DOD GC, Mr. Jim Haynes,
who demands that I do a live interview with ABC News to
talk about the "collegial environment" in which the
detainee interrogation techniques approved by SECDEF
Rumsfeld were developed. He wants me to tell ABC
News that the JAGs had a full opportunity to participate
in the development of the detainee interrogation policy.
Though I advise him that I can talk about the process, I
cannot confirm that the JAG inputs were valued or
considered. He tells me he really needs for me to do
this for him. I decline to participate.
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It is clear that Haynes and Walker saw me as the
"ringleader" of the internal opposition to the
detainee interrogation technique policy. He
may well have believed that I led a group of
judge advocates that raised the issue of military
advice on the topic being ignored to the New
York City Bar Association. They obviously
hoped that if I went on national television to say
the JAGs were fully on board with the
interrogation techniques, the other JAGs would
back off any opposition. The next day, I
departed on travel and Haynes, without my
permission, coerced my deputy into doing an
interview on the topic. Fortunately, my deputy
did a good job of avoiding any confirmation of
the line Haynes had wanted me to take.
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May 14, 2004 (as best I can
reconstruct it from my records)
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Senator Graham calls me again to confirm our earlier
conversation regarding development of the DOD
detainee interrogation policy. When I confirm it and the
existence of the Feb 03 Memo to Mary Walker, he asks
me to hold the line because he wants Senator McCain to
hear this. When McCain comes on the line, I repeat the
substance of my conversation with Graham. He tells me
this is important information that they need and asks if
he too can receive the Feb 03 Memo to Walker. I explain
to him the difficulty of the classification aspect, but
assure him and Graham that I will find a way legally to
provide it to him. Graham then tells me that they
(Graham and McCain) will protect me should there be
any trouble over my cooperation with them.
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I actually believed Graham when he told me that
he and McCain would protect me if it was
discovered by the Administration that I was
assisting them. I was not able to work
immediately on the classification aspects of the
document as the rest of the month was
consumed in official travel duties hosting the
first AF Domestic Violence workshop at the JAG
School at Maxwell AFB, AL, and travel to a
conference and base inspections in Europe.
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Senator Lindsay Graham introduces legislation to
enhance the status of the Judge Advocates General by
making clear that they do not work for the civilian
general counsels and elevating their positions to three
stars (lieutenant general). Mary Walker and Jim Haynes
see this as a "fall on the sword" issue. I take the
position that the legislation is absolutely necessary to
insure that military and civilian leaders receive
uniformed legal advice at the highest decision making
levels.
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Mary Walker mounted a no holds barred
campaign against the legislation, including an
effort to have the SECAF weigh in specifically
with SECDEF and Senator Graham. She is so
determined to see the legislation defeated that,
in a bizarre email to the SECAF, she invokes the
biblical story of Esther, implying that it was
divine intervention that put Dr Roche in the
SECAF’s job “for such a time as this” so that he
could save the GCs from the threat of a
stronger JAG via elevation of TJAGs to three
stars.
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An anonymous complaint against me is filed with the
Chief of Staff and a copy sent to former TJAG Bill
Moorman. I am unaware of the complaint.
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The complaint includes copies of e-mail sent to
my government e-mail address by Major AAA.
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Major AAA sends an e-mail to my government computer.
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I read the e-mail and delete it.
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I am summoned to the Chief of Staff's office at 0900. He
informs me that an anonymous complaint has been filed
against me alleging unprofessional relationships. He
shows me an excerpt of the complaint. It is clear to me
that the wildly exaggerated complaint has been compiled
from a thorough review of my e-mail and telephone calls
to female friends and associates. The Chief tells me that
the complaint included several e-mails from Major AAA
to my e-mail account, but he does not show them to me.
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I am so shocked by what I read that I am nearly
speechless. I am prepared to acknowledge that
my relationship with Major AAA is questionable,
but do not want to put the Chief of Staff in an
awkward position by elaborating on it. I tell the
Chief that I was planning to retire the next June
anyway and would be willing to move up my
retirement date if he wanted to save the Air
Force from any embarrassment. He declines my
offer to retire early. He tells me he will turn the
matter over to the Inspector General and that I
should go back to work. I later learn that the
investigation had begun almost immediately and
was underway already when he informed me of
the complaint.
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According to the IG Report of Investigation, this is the
date the investigators capture the contents of my
government e-mail account. They do not have a warrant
to search my account as required by the 4th Amendment.
(See U.S. v Long)
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The investigators do not find the August 17
e-mail from Major AAA in my account. This forms
the basis for the later charge that I obstructed
justice. See Specification 1 on page 2 in
Disciplinary Action. The specification is totally
deficient as it includes a two day period when I
could not have known of the complaint, as well
as being the product of an illegal search. As
noted above, I simply read and deleted the
e-mail on August 17. Had the investigators
acted properly, they would have obtained a
warrant and captured my e-mail on August 19 in
order to establish a baseline for what was in my
account. Their shoddy investigative practices
were held against me by General Cook when he
considered this allegation.
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In violation of the Military Mental Health Evaluation
Protection Act, the IG investigators record the testimony
of Dr. (Major) Linda Estes, a psychologist working for the
Office of Special Investigations. Without ever meeting
me, interviewing any witness, or reading any witness
testimony, but based solely on a cursory review of a
carefully selected set of my e-mail, she issues a
diagnosis that my actions are "predatory." In one
memorable passage, she plots with the investigators
how they can ambush the teenage daughter of a dear
friend who has been identified in the anonymous
complaint, in order to coerce the daughter into
disclosing the nature of her mother's relationship to me.
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Dr. Estes testimony is as much an affirmation of
the views of the investigators as a
psychological evaluation. Throughout many
pages of testimony she does little more than
assent to the views of the two colonels
investigating the case. I am completely
unaware of this evaluation and remain so until
December 11, when I see the IG summary report
of investigation. I later file a complaint with the
Arizona Board of Psychologist Examiners about
Dr. Estes' actions. Based on my complaint, the
Board initially voted to discipline Dr. Estes in
October 2006, for violating Arizona law
governing psychologists. This was reduced to a
cautionary letter after the Air Force put on a
"full court" press to support Dr. Estes, claiming
that her testimony didn't make any difference in
the case. That was clearly false. See below.
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The Chief of Staff and SECAF both insist that I
"voluntarily" step aside during the pendency of the IG
Investigation. I press them for the reason, and both
refuse to say more than: "It will be better for you."
Wanting to avoid any difficulties for the office of the
Judge Advocate General, I accede to their demand.
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Of course, it was only later that I would learn
that the IG investigators ran to the Chief and
SECAF with the "diagnosis" of Dr. Estes. That
gave them the cover they needed to force me
out of my position at a critical time for both the
detainee interrogation issues and the
legislation to enhance the status of the TJAGs.
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I am advised by my counsel that the IG investigation has
concluded. Since learning that the complaint was based
mainly on my e-mail, I had scrupulously avoided making
any changes on my government e-mail account during
the investigation.
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About October 18, believing the investigation to
be over. I begin cleaning up some of my
personal and official folders in my government
e-mail account. I move a personal file folder
labeled "Fiscus" to an archive folder and name
it "Fiscus1" since the archive already has a
folder labeled "Fiscus". I do so to keep all my
personal e-mail in one place so as to preserve
the addresses for future use. This will become
important later in the AF ethics investigation.
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I am informed that I will be offered non-judicial
punishment under Article 15, UCMJ. I am notified by my
Air Force Academy classmate, Lt General Mike Dunn. I
am given three working days to decide whether to
demand trial by court-martial. We are not provided with
the evidence supporting the action as is normally done.
I am ordered to decide by Monday, December 13. No
extension of time will be granted.
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Carolyn goes with me to receive the
notification. Despite the fact that Gen Dunn and
his wife have been in our home numerous times
and we had spent considerable time in each
others' company during our assignment
together in Hawaii, he doesn't acknowledge
Carolyn. He asks her if she is my counsel.
When I remind him that it's Carolyn, my wife, he
acts as if he has never met her.
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My counsel receive an extract from the IG Report
consisting of the executive summary and some witness
testimony.
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I did not personally see any of the material until
December 11. Seeing how the investigators
have massaged the testimony of nearly every
witness to reach conclusions not logically
supported by that testimony is a revelation.
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Counsel and I work furiously through the weekend in an
effort to digest the IG Report, understand the charges
and what evidence is being used to support them and
decide the best course of action.
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Counsel advise me that they're not sure what
evidence can be used to refute an allegation
that my e-mail were "inappropriately intimate",
nor can they make sense of the obstruction of
justice allegation based on the material
contained in the IG Report. We conclude that it
is best to rely on the common sense of General
Cook to see that the charges are largely the
product of overzealous investigators.
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I accept the non-judicial forum for my case and ask for a
hearing before the Commander appointed to consider
my case, General Donald Cook. We are ordered to a
hearing on December 20. No extensions of time will be
granted.
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Though many civilians (and even some
uninformed military people) think "accepting"
Article 15 is a "guilty plea" it is not. It is simply
the choice to have the commander consider the
case himself. It was completely unfair to have
to attempt to put together any sort of defense
and character references the week before
Christmas. My counsel worked miracles to put
together the materials they did, but some
compassion in granting an extension of time
until after the holidays would have given us at
least a fighting chance. Being so close to the
completion of the investigation, most of the
witnesses still believed they were under orders
not to speak to anyone about the case,
including me or my counsel. The AF IG
investigators did not inform the witnesses that
they were released from the gag order or that
they could cooperate with us. I am grateful to
those few who, seeing the unfairness in all of
this, chose to risk talking to me and my counsel
and who assisted us as best they could in
preparing for the hearing before General Cook.
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My counsel and I appear before General Cook. I make a
brief statement to General Cook taking full responsibility
for my actions, telling him of my belief that the charges
are wildly exaggerated, and pointing him to my efforts to
keep the U.S. on the right side of the law in detainee
interrogations, military commissions, and politicization of
military legal advice.
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Earlier that day, while attempting to get clarity
on the material the AF believed supported
various of the charges, my counsel is told by
General Cook's deputy Staff Judge Advocate
that if we want the "evidence" we can demand
trial by court-martial. In all my years as a judge
advocate, I had never heard of such a practice.
In every office I ever supervised, the accused
person and counsel were provided all the data
in the government's possession when notified
of the intent to take non-judicial action.
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I return to General Cook's office. He informs me that he
has decided to punish me for the allegations. He
imposes a forfeiture of a month's pay and reads me a
scathing letter of reprimand. Having known him for
many years, I am shocked that he can have found the
charges worthy of belief and action.
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Following the formal imposition of punishment,
General Cook calls me back into his office. In
essence he urges me not to commit suicide. He
says that I am very talented and will land on my
feet. In an unfathomable display of irony, as we
part, he embraces me in a long hug - the very
type of action for which he had just ruined my
career.
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Counsel submit our presentation to the Officer Grade
Determination Board. Once again, it has had to be
prepared over the Christmas holiday with no extension
of time allowed. It is an exceptionally well written
document considering the crushing time constraint
placed upon us.
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Bush Administration officials had already laid
the groundwork for an exceptionally harsh
decision by the Board, by leaking word of the
probable outcome, thus making the result an
expected conclusion. In fact, those officials had
decided back in June/July that I was to be
humiliated and lose my stars. This was just the
Administration's end game abetted by other
uniformed officers.
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I am retired from active duty in the grade of Colonel.
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