|
|
|
|
I become Executive Officer to Maj Gen Dave Morehouse, AF Judge Advocate General.
|
|
I was a Lieutenant Colonel and was awaiting promotion to full Colonel.
|
|
|
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telling DOD General Counsel nominee, David Addington, that he will not be confirmed as DOD GC unless the memo is rescinded.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.
|
|
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.
|
|
|
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.
|
|
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".
|
|
|
Maj Gen Morehouse retires from active duty. I am reassigned as a student at the National War College at Fort McNair in DC.
|
|
I write the above paper on the "hostile takeover" attempt.
|
|
|
Carolyn and I, having become serious in our relationship during my year at National War College are married at Ft. McNair, in DC.
|
|
Perhaps the most beautiful day I've ever seen in DC.
|
|
|
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.
|
|
In October 1994, we are thrilled to learn that Carolyn is pregnant.
|
|
|
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.
|
|
I meet then Lt. Gen John Jumper and then Colonel John Corley.
|
|
|
Carolyn and I lose our pregnancy.
|
|
I can't recall ever having been so low.
|
|
|
We are reassigned to Hickam AFB, HI. I serve as Staff Judge Advocate for Pacific Air Forces.
|
|
I meet then Maj Gen Steve Polk, later the AF Inspector General.
|
|
|
I am selected for promotion to Brig Gen.
|
|
It is announced that I will be assigned as Staff Judge Advocate of Air Combat Command, Langley AFB, VA.
|
|
We arrive at Langley AFB, VA, and I am promoted to Brigadier General.
|
|
|
|
I am notified that I have been selected to become the Deputy Judge Advocate General.
|
|
|
I am sworn in as Deputy Judge Advocate General and promoted to Major General.
|
|
I had been a Brigadier General for only 10 months.
|
|
I am in my Pentagon office speaking to our European Headquarters about the World Trade Center attack when a hijacked airliner strikes the Pentagon.
|
|
The next day we were back at work in the choking smoke and dust putting together security plans and manning the Crisis Action Center.
|
|
It is announced that I have been selected to replace Maj Gen Bill Moorman as Judge Advocate General in February 2002.
|
|
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.
|
November 2001- April 2002
|
|
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.
|
|
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.
|
|
|
Mary Walker is confirmed as Air Force General Counsel. She has been in Republican administrations before in three other executive agencies.
|
|
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.
|
|
I am sworn in as the 14th AF Judge Advocate General.
|
|
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.
|
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
|
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.
|
|
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.
|
|
|
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.
|
|
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.
|
|
|
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.
|
|
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.
|
|
|
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.
|
|
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.
|
|
|
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.
|
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.
|
|
|
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.
|
|
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.
|
|
|
The story of Abu Grhaib detainee mistreatment breaks in the press. Almost immediately there is a rush to determine how the system broke down.
|
|
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.
|
|
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.
|
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.
|
|
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.
|
|
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.
|
|
|
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.
|
|
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.
|
May 14, 2004 (as best I can reconstruct it from my records)
|
|
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.
|
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.
|
|
|
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.
|
|
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.
|
|
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.
|
The complaint includes copies of e-mail sent to my government e-mail address by Major AAA.
|
|
|
Major AAA sends an e-mail to my government computer.
|
I read the e-mail and delete it.
|
|
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.
|
|
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.
|
|
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)
|
|
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.
|
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
|
My counsel receive an extract from the IG Report consisting of the executive summary and some witness testimony.
|
|
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.
|
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
I am retired from active duty in the grade of Colonel.
|
|
|
|
|
|
|
|
|
|
|
|