Thomas J. Fiscus, 14th Judge Advocate General United States Air Force
This complaint to the DOD IG makes the case that actions taken against me were in reprisal for official positions I took on issues that came before me as Judge Advocate General. Due to its length, I have added buttons to take the reader to specific portions of the Complaint that may be of greater interest. In some instances, there may be updated information that was not available to me at the time I filed the Complaint. In those cases, I have added links to additional websites or documents that provide the reader with additional information or bring the reader up to date.
For additional information on the Military Whistleblower Act, you may click on the link to a recent paper written by a Judge Advocate on the subject of Military Whistleblowers.
November 16, 2006 The Inspector General Department of Defense Directorate of Military Reprisal Investigations The Pentagon Washington, DC 20301-1900
Re: Complaint under the Military Whistleblower Protection Act and the Military Mental Health Evaluation Protection Act
I file this complaint under the Military Whistleblower Protection Act, 10 U.S.C. Section 1034, and the Military Mental Health Evaluation Protection Act, National Defense Authorization Act of 1993, Section 546, 106 Stat. at 2419 (1992) together with implementing Department of Defense (DOD) Directives, Instructions and Guidance.
I request that the DOD Inspector General (IG) waive any applicable statute of limitations and either itself direct, or seek the assistance of another agency to initiate, an investigation as contemplated by 10 USC Section 1034: (1) in the interest of justice; (2) due to the significance of the issues herein addressed; (3) due to the ad hoc policy of the DOD and Air Force to deny me relevant documents to which I am entitled under existing regulations as well as the Freedom of Information Act (FOIA) and Privacy Act; and (4) in consideration that the actions of those complained about are potentially criminal and are still within applicable statutes of limitations for action, if expeditiously investigated.
I am the former Judge Advocate General (JAG) of the Air Force (AF) and served in that capacity from February 2002, until, at the request of the Secretary of Defense (SECDEF), I was removed as JAG by the President in January 2005. After an anonymous complaint was filed in August 2004, an AF IG investigation substantiated allegations that I had engaged in inappropriate relationships. I was punished under the Uniform Code of Military Justice (UCMJ), Article 15. Following a grade determination directed by the Secretary of the AF (SECAF) James G. Roche and AF Chief of Staff (CSAF) John Jumper, I retired from the AF on 31 January 2005, in the grade of Colonel, after nearly 33 years of active duty service of which nearly six years were served as a general officer.
The adverse actions taken in this matter were, from the beginning, taken in retaliation for (1) various official positions I took wherein I advised those in policy making positions that their positions violated international and domestic law and DOD policy and directives; (2) instances in which I espoused positions contrary to the desires of my civilian counterparts or which suggested that proposed courses of action were not in conformance with the law or in the best interests of the AF; (3) instances in which I discussed matters related to internal processes of the AF and DOD with members of Congress or their staff members; and (4) my testimony to the DOD IG in an investigation directed at Mary Walker, the AF General Counsel (GC). These positions were taken in protected oral and written official communications transmitted to personnel authorized to receive them and known to the retaliating personnel. The adverse personnel actions taken against me were in retaliation for the official positions I took regarding the policies and actions of several of the retaliating officials. As demonstrated below, these adverse actions were taken as part of a predetermined plan to remove me from my duties as JAG, destroy my 32 year military career, ruin my professional reputation and credibility to speak on important national level issues, cause me to lose my professional licensure and future employment prospects, and to ruin my marriage and friendships and to facilitate if not directly encourage my suicide. With the exception of my marriage, not having committed suicide and retaining my law license, all of these intended results have been effectively achieved. While I retained my Iowa state law license at great expense, I do not live in Iowa, so I am unable to practice law. Though I have taken and passed the bar examination in Oregon, my state of residence, my admission to the bar has been delayed while a protracted review is made of the actions taken by the DOD against me.
I doubt the Military Whistleblower Statute and the Mental Health Evaluation Protection Act have ever been applied to the case of a senior military officer, particularly when the retaliating officials include one’s entire former chain of command. In some instances, retaliating officials are still in place and have a conflict of interest with this complaint. The AF IG, AF GC and AF JA have obvious conflicts of interest and the office of the DOD IG itself had an early and pervasive role in my case which creates a conflict of interest for it. The primary source of legal advice to the DOD IG is the DOD GC, Mr. William J. Haynes. He is one of those primarily responsible for violating my rights and for advising the retaliating officials. These conflicts of interest mandate transfer of the matter to another agency’s IG and GC.
Despite my belief that those responsible for the retaliatory actions against me can have this complaint ignored, I have determined to file this complaint now before so much time passes that it will be impossible to correct the record as it should be. For that reason, I have copied Senators Levin, Graham, McCain, Kennedy, Clinton, Smith, Wyden and Congressman Wu on this complaint.
DOD IG will have to determine the best way to proceed to affect the will of Congress that all military personnel, including general officers, who faithfully advise their senior leaders that their actions may be illegal or who make known the illegal activities of those senior personnel, are entitled to the benefit of the law’s protections.
Persons Taking Actions That Constituted Retaliation:
Secretary of Defense Donald Rumsfeld Former Secretary of the AF James G. Roche Former AF CSAF, General John Jumper DOD GC William J. Haynes AF GC Mary L. Walker Former Commander, Air Education & Training Command, General Donald Cook, AF IG, Lt General Steven Polk AF Judge Advocate General, Maj General Jack Rives Navy Judge Advocate General, Rear Admiral Bruce MacDonald
Statement of the Complaint:
Throughout my career as a Judge Advocate, it was incumbent on me to give those in policy making positions my best advice as to the legality as well as the advisability of numerous policy options and decisions. In many cases during my tenure as AF JAG, my advice and recommendations conflicted with Administration and DOD desires. Within 24 hours of my assuming my duties as JAG and for my entire tenure, I found myself in constant conflict with the efforts of the DOD and AF GCs to politicize military legal advice to the Air Staff and field commanders. I steadfastly resisted their efforts to centralize all legal policy and decision making in a separate civilian legal chain of authority, as I believed that field commanders should command and lead with the assistance of military legal advice which was free of partisan politics. If successful, the DOD and AF GC efforts would have subordinated the service JAGs and their staffs as well as legal personnel around the world to a political line of authority that reported through civilian GCs to the DOD GC. I always tried to work within the system and avoided going to the media, but some of the conflict with my civilian counterparts did attract media attention unflattering to them. (Exhibit 1)
While serving in the office of the GC of the Army in the late 1980s, Mr. Haynes authored a proposal to centralize all military legal authority under the DOD GC. When a legislative effort to accomplish this centralization failed, DOD Under Secretary Donald Atwood issued a memorandum on March 3, 1992, purporting to place all DOD legal resources under the DOD GC. The then DOD GC nominee, Mr. David Addington (now one of the White House counsel) was forced to have the memorandum withdrawn in order to secure his confirmation by the Senate. (To see the research paper I wrote while at the National War College on this event, please click the link to Hostile Takeover Attempt) Neither Mr. Haynes nor Mr. Addington ever forgot the humiliation they had suffered, as they perceived it, at the hands of the JAGs. Mr. Haynes likewise never abandoned his plan to bring the JAGs under the control of the DOD GC. During his tenure as DOD GC, he has sought steadily to affect that plan. From the beginning of her tenure, the AF GC, Mary Walker, has been his enthusiastic acolyte, using every means possible to denigrate the position of AF JAG to the SECAF and CSAF. I resisted this effort to undermine the confidence of AF senior leadership in the military legal advice they received. (Exhibit 2) The result was a hatred of me (Exhibit 3) on the part of Mary Walker that culminated in her direction of the IG investigation in my case to attack the position of JAG generally and me specifically.
I made numerous protected communications, but a few formed the primary basis for the efforts of those listed above to destroy my military career as well as my professional and personal reputation:
1. Protected Communications Regarding Guantanamo Detainee Interrogations. As the senior uniformed legal officer of the AF during the period Dec 2002 – Mar 2003, I advised the DOD GC and the DOD GC Working Group on Detainee Interrogations, headed by AF GC Mary Walker, orally and, in February 2003, via a protected written communication authorized by me and signed by my Deputy, that the interrogation techniques proposed for use at Guantanamo Bay on detainees interned there violated international law as well as domestic law and established DOD guidance, exposed the United States to international ridicule and legal challenge, and placed US service personnel at risk. This protected communication was provided to Mary L. Walker, the AF GC and was made known to the DOD GC, SECAF and CSAF, and possibly to SECDEF by her or the DOD GC.
Factors Demonstrating Violation of the MWPA
During this time period, I orally warned the DOD GC that the then “proposed” interrogation techniques (we had no idea that the interrogation techniques which we were evaluating were already in use) were illegal under international law and our own domestic law and (DOD) written guidance. The original SECDEF letter approving the use of interrogation techniques that were clearly outside the existing DOD and Army policies was not made available to us. Initially, I was unaware of the White House memorandum authored by Mr. John Yoo. Once I became aware of it, I several times expressed my view to the DOD GC weekly meetings that the opinion was an unwarranted and hyperbolic extension of the President’s authority. I argued that it conflicted with 50 years of military doctrine supporting the applicability of the Geneva Conventions, even under the circumstances of a “war on terror.” It was clear that my opinion was not welcome to AF GC Walker and DOD GC Haynes, though it was clearly the consensus of the uniformed lawyers. My Deputy reported similar reactions to his inputs to these meetings when he attended in my stead.
I dissented to the conclusion advanced by Mary Walker that the John Yoo legal memorandum was the definitive word on the legality of torturous interrogation techniques. Due to this dissent, I was assumed to be the leader of a group of military attorneys who contacted members of the New York City Bar Association in June 2003, to complain about the process and the legal positions being advanced by the Administration and the DOD. When the New York City Bar Association went public with the military legal dissension, reporters for various media called my office several times for comment or interview. Some went so far as to claim they already knew I was the leader of the uniformed lawyers seeking the help of the New York City bar. They wanted the details of my dissent. Because I had been attempting to work through internal DOD channels, I declined all comment and interviews. Even though I was not a part of the group of judge advocates who contacted the New York City bar, the fact that I was being sought out by the media as the leader of the opposition to the detainee interrogation techniques was made known to DOD GC, AF GC, SECAF, and possibly to others higher up the chain of command. I believe that email traffic that has been withheld from me under the FOIA will confirm this.
My view of the interrogation techniques coincided with that of Alberto Mora, GC of the Navy. His advocacy against the application of illegal interrogation techniques, in and out of the DOD GC meetings which I attended, was documented in the Church Commission Report, in media coverage and through his receipt of the Profiles in Courage Award. Despite unanimous agreement by the military lawyers that the Geneva Conventions applied to the Guantanamo detainees, it was only through Mr. Mora’s support for their views that a working group was created to review them. That working group was headed by the AF GC, Mary Walker, whose stated intent was to support the legal position taken in the White House’s Yoo memoranda of 28 December 2002 and 9 January 2003. Throughout the existence of the Working Group, the military JAGs were never given the Working Group’s draft reports in sufficient time to allow more than a cursory review. The working group drafts were embargoed until the very last minute and we were given usually not more than one day to respond with suggestions. The legal reviews conducted by my International and Operations Law Directorate and Administrative Law Directorate, suggested significant revisions of the report. These reviews are not available to me, but may still exist in AF JA files. Our suggestions and recommendations were ignored. (Exhibit 4) I personally had a great deal of difficulty in gaining access to the drafts, reflecting the desire of Mary Walker to ensure I had as little influence on the process as possible.
When the “final” working group report was made available to me (only to be read while in Mary Walker’s office) it became clear that she had not been intending any sort of meaningful analysis of the detainee interrogation techniques and the applicability of international conventions on prisoners of war and torture. At this point, we felt we had no alternative but to object in writing, creating a paper trail. In early February 2003, Maj Gen Jack Rives, acting under my authority and with my approval sent a letter to Mary Walker, pointing out the questionable legality of the principles contained in the working group’s draft “final” report. Mary Walker was furious with the letter, calling it “. . . untimely.” She asserted that our representatives to the Working Group concurred with the positions taken by her, which could not have been further from the truth. (Exhibit 5) The JA letter forced Walker to go back to the DOD GC to report the dissent, creating great enmity toward me and my Deputy on the parts of Walker and Haynes. The JA letter was classified and remained classified until July 2005 after it was requested under FOIA by Senator Lindsay Graham. My interaction with Senator Graham on this matter is detailed below. None of the military lawyers were permitted to see or comment on the final decision document which SECDEF signed in April 2003, implementing a substantial subset of the techniques originally approved by him. My request for a copy of the February 2003 JA letter under FOIA and the Privacy Act (so as to attach it here) has been denied. My appeal of the denial has languished in the AF GC’s office for over 11 months. This demonstrates the inherent conflict of interest for Mary Walker in her role in the IG investigation of the anonymous complaint against me and its aftermath.
When the story of Abu Grain broke in the media, the issue of the legality of the interrogation techniques authorized by SECDEF for use at Guantanamo Bay, which were later exported to Iraq and Afghanistan by Major General Geoffrey Miller, was brought into question. It soon became clear that there was an issue as to the utilization of the advice of the military lawyers in crafting the interrogation techniques approved by SECDEF. By May 2004, at the height of the media and Congressional furor over the interrogation techniques, I was clearly perceived as the leading uniformed dissident and a thorn in the side of the civilian legal apparatus in AF GC and DOD GC. I had attained the unfortunate mantle of “ringleader” due to the positions my office had taken on the detainee interrogation technique issue. At the height of the controversy, on May 11, 2004, Mr. Haynes attempted to force me into an on camera interview with the ABC news organization. He wanted me to say that the military lawyers had full input into the process of evaluating the interrogation techniques and agreed with the resulting policy decision. I was put under direct pressure by Mr. Haynes to do the interview. With extreme reluctance, I initially agreed to meet with the reporter, but afterward refused. I could not in good conscience help create the impression that the review was a fully participatory process. I knew it wasn’t and I had argued that the proposed handling of the detainees violated the Geneva Conventions. Mr. Haynes was incensed by my decision. Thereafter, while I was away on official travel, Mr. Haynes pressured my Deputy (Maj Gen Jack Rives) to do an on camera interview in my absence and without my approval.
The next day, on May 12, 2004, Mary Walker intercepted me at the door of the CSAF conference room before a weekly staff meeting. She was furious that JA’s February 2003 memo to her, regarding our view of the detainee interrogation working group report conclusions, had been leaked to Mr. Scott Stuckey, minority counsel for the Senate Armed Services Committee (SASC) Staff. Referring to our letter as “Jack’s CYA Memo” she berated me both before the staff meeting and following the staff meeting for the positions taken in the memo as well as the purported leak of the memo to the SASC. As we walked back toward her office, I protested to Walker that I had not provided the memo to anyone other than her. Walker had not informed me of the source of her information. Despite my protests, Walker was not deterred by the facts, loudly condemning me for undercutting her authority and position and trying to make her look bad. I had become her scapegoat for unflattering media and internet coverage that dubbed her “The Torture Attorney.” She further declared, in a voice loud enough to turn the heads of others in the hallway, that I was not a team player and that she intended to inform the SECAF and CSAF that we (JA) were going behind her back to the SASC.
After Walker informed General Jumper about the “leak” to the SASC, I was summoned to his office for his usual “Ready Fire Aim” questioning. I assured him that I had not provided the memo to Mr. Stuckey. I told him that I had not even discussed the memo with Mr. Stuckey, nor had I provided him or anyone else a copy. To my knowledge, Mr. Stuckey did not then have our memo nor would he have it until over a year later when the memo was declassified as mentioned above. It was clear that General Jumper accepted the assertion of Walker that I had given Mr. Stuckey the memo. I am convinced that Mary Walker’s unrelenting barrage of criticism of me and the JAG Corps caused General Jumper to reject my assurance to him that I had not done as alleged by Walker. This had a predictable effect later when the IG investigation took place.
General Jumper had become famous in the Pentagon for being a single issue CSAF – support the F22. Among many senior AF officers, he was perceived as having given over his prerogatives as Chief to the SECAF. That included agreeing with the SECAF on issues that were not in the best interest of the AF, such as the use of the AF Academy sexual assault case scandal to effect unrelated changes to the Academy. General Jumper also recognized that Mary Walker enjoyed a relationship to the SECAF that was unusual. Although the SECAF was routinely impatient and critical, he was extraordinarily tolerant of Mary Walker’s repeated outbursts, political posturing and efforts to paint the JAG Corps as insubordinate. At the February 2002 Corona Conference, which I attended, Mary Walker unveiled a legal opinion and guidance that took a wholly different approach from the one the JAG Corps had taken for many years on the sensitive issue of official travel for four star spouses. Without coordinating with our office, Mary Walker announced a very liberal policy on the issue, to the considerable acclamation of the four star generals in attendance. General Jumper was moved to tell the SECAF and all in attendance at a general session of the Conference that Mary Walker was the first lawyer he ever met who did something positive for the AF. However, within two weeks of the Walker opinion, the DOD GC issued renewed guidance on the issue that affirmed the original JAG Corps position, held Walker’s position invalid and, in fact, tightened the rules on four star spouse travel. No public mention was ever made of the DOD GC action by SECAF, Gen Jumper or Mary Walker.
As it was, General Jumper time and again assumed that whatever Mary Walker alleged against me and the JAG Corps was true. I constantly fought an uphill battle to get him to even listen to the JAG side of the issues. He believed that his “go along to get along” philosophy was best. He failed to understand the danger to field commanders posed by the politicized legal advice that Mary Walker and Jim Haynes sought to impose on the services. The persistent allegations by Mary Walker’s that the JAG Department was operating outside its authority were untrue. In every instance, her information was either wrong, the result of some misunderstanding on her part about prior practice or an outright fabrication designed to injure the reputation of the JAG Department with the AF and DOD leadership. It was my fate to be the object of her wrath.
In April 2004, I had been contacted by Senator Lindsay O. Graham of South Carolina, who sought information concerning the process which had been used to formulate the DOD position on interrogation techniques for Guantanamo and Abu Grain. Senator Graham and I had become acquainted when he indicated a desire to renew his status as an AF Reserve Judge Advocate. I had carefully considered the ramifications of having a U.S. Senator as a reservist and concluded that there was ample precedent for him to serve. I appointed him to the AF Court of Criminal Appeals, to the consternation of Mary Walker, SECAF and Mr. Haynes. In fact, the SECAF confided to Walker that I had done it only to curry favor with the Senator and that he only wanted to do it to gain promotion. Neither of these slanders was true. Mr. Haynes expressed his displeasure with the appointment and demanded I furnish him a legal memorandum demonstrating that Senator Graham would not be in a conflict of interest. I did so.
During several telephone conversations in the April - July 2004 time frame with Senator Graham, and one which included Senator John McCain, we discussed the role the JAGs and their staffs had played in arriving at the final DOD policy. I spoke candidly to Senator Graham about my views of the process. It was during one of those discussions that I mentioned to Senator Graham and to Senator McCain that we had sent the above Feb 2003 letter to Mary Walker. Senator Graham requested that I send him the letter. I told him I would do so but wanted first to determine whether there was any impediment that must be overcome due to the classification of the letter. Senator Graham assured me that I would be protected if I furnished it to him. As subsequent events have unfolded, I suspect that our telephone conversations were intercepted. Those conversations made clear that I was preparing to provide Senators Graham and McCain with a document that would prove embarrassing to Mary Walker, Jim Haynes, the DOD and possibly the Administration.
Shortly after the last of these conversations, and while in the process of making sure I could lawfully give the memo to Senator Graham, I was notified on August 19, 2004, of the anonymous complaint made against me to the CSAF alleging multiple sexual improprieties and that I was a security risk. The investigation was turned over to the AF/IG, who was advised for the first six weeks of the investigation by AF/GC Mary Walker. It was not until the investigation was nearly completed, that she was forced by SECAF Roche to remove herself from the case in late September. (Exhibit 6) By then she had guided the investigators to aggregate a group of minor interactions between me and a dozen females into a sex scandal. Mary Walker should have excused herself from this case from the beginning given her well known hatred of me, but she acted on this case despite a palpable conflict of interest. That first six weeks included the creation of an illegal and unethical psychological evaluation and testimony by Major (Dr) Linda S. Estes, a psychologist working for AFOSI (a part of the AF IG Office). Relying on nothing more than a few of my emails, Dr Estes diagnosed me a sexual predator. This evaluation was conducted without my knowledge or participation, in violation of the Military Mental Health Evaluation Protection Act as implemented by Department of Defense (DOD) Instruction 6490.4 and DOD Guide 7050.6. These actions are further detailed below where I address the violation in greater specifics.
The above evaluation and testimony by the AF psychologist was carefully timed to ensure that when it was rendered I would be away on official travel, not able to contact my counsel and without any resources or ability to prepare any statement of explanation. Having been informed of the psychologist’s diagnosis, the SECAF and the CSAF tracked me down while I was on official travel and demanded that I step down from my position as TJAG. Despite my entreaties for their reasoning, they persisted in their demand without explanation, assuring me that it didn’t mean they had prejudged my case but that it was better for me. Believing only that they wanted to insulate the position of TJAG from the investigation, I reluctantly submitted a request for temporary relief from my duties as TJAG. It was only later that I would learn that the psychological evaluation was a pretext for ousting me from my position and timed to ensure I could not issue any statement on the matter to the JAG Corps. Since the DOD’s effort to have me ousted as JAG was now completed, it could be made to appear that Mary Walker was not involved in my destruction. With the die already cast to destroy my career and future employment prospects, the SECAF and CSAF concluded that Walker should back away from her direction of the AF IG investigation, in order to avoid the appearance that she was doing precisely what she was doing.
Based on comments made later to me by General Rives and others, it appears that Walker’s hatred for me was so great that she was unable to completely remove herself from the case until she was ordered by SECAF Roche to turn over that role to the Navy. At first refusing to step away from the investigation, Walker was reordered by the SECAF to stand down. By then of course it was too late for me. Walker and DOD GC Haynes had directed the investigation into a hysterical channel from which it could not escape. Mary Walker’s influence on the investigators included obtaining the illegal and unethical “evaluation” by Major Estes. That evaluation was used in a “whisper” campaign within the Pentagon to insure that any support among the leadership for me would be silenced or eroded to the point that no one would speak in my favor or approach the case with some sense of equity. That coupled with several well timed, anonymous and calculatedly inaccurate “leaks” of selective investigative details to the media made the eventual results a foregone conclusion.
These media leaks were intended not only to create hysteria and destroy the integrity of the IG investigative process, but to create an expectation as to the “proper” result. The most damaging of the leaks was the sound byte by which the case became known, that I had engaged in “… more than a dozen affairs over ten years.” This became the tag line of the case, despite the fact that only one witness out of the dozens interviewed testified to any sort of intimate relationship. The “ten year” reference misrepresented a single sexual encounter with an unmarried female judge advocate eleven years before while we were both unmarried. At the time, I was not the supervisor of or in any chain of command to the woman. Since I had been married almost exactly 10 years when the anonymous complaint was filed, the “ten year” reference was clearly designed to mock my marriage and create a sense that I had not been about the AF’s business for a decade, despite a record of performance that had propelled me to my position as AF JAG.
These prejudicial leaks could only have been made by one or more of the above named individuals, all of whom understood the rights to which one being investigated is entitled. In one article, the reporter even noted that the leaker knew he was violating my rights by giving information from the investigation to the reporter before the investigation was complete. After Major Estes’ evaluation and the leaks to the media, the IG investigators abandoned any effort at a measured and balanced approach and rushed the investigation to confirm Mary Walker and Jim Haynes’ desired result. By the time I was disciplined, the entire AF had been poisoned to believe the leaked media accounts. I protested that the AF was in a position to ensure the public was properly informed of what was occurring, but my protest was rejected. (Exhibit 7) The AF Public Affairs officer, Brig Gen Fred Roggero, asserted that the AF did not try to correct such stories. That is clearly false, as demonstrated by the exceptional effort of members of the SECAF’s staff to mitigate the effects of unflattering media stories involving Mary Walker’s actions regarding the Air Force Academy sexual assault scandal. (Exhibit 8)
The IG effort left no stone unturned in order to discredit me in every way possible. The object was to insure that I would be exiled from the Air Force. Likewise, I would not be considered a credible source or be sought to speak publicly on the important issues of detainee rights, interrogation techniques, applicability of the Geneva Conventions, military commissions and the plethora of other issues crucial to the rule of law in the U.S. The strategy has worked perfectly as I have never been sought out by media or academe for comment on these issues, despite the indication in initial media reports that I had resisted Administration detainee interrogation policy.
Not surprisingly, the leaks to the media predicted with uncanny accuracy exactly what did happen several weeks in advance of the supposed decision points regarding military disciplinary action, the removal of me from my position by the President and the grade determination made by the SECAF. The leak as to the grade determination predicted and no doubt set the stage for my retirement in the grade of colonel, negating over five and one half years spent as a general officer, nearly five of which were served in the grade of major general. Fortunately, the prediction that I would be disbarred by my licensing state was not within the control of Mary Walker and Jim Haynes, because the Iowa Supreme Court considered the AF allegations and inquiry and dismissed the case without a hearing. The Iowa Bar made a specific finding that I did not obstruct justice, as had been alleged in the Article 15 and professional responsibility cases. My efforts to get the AF to recognize its “error” in this regard (Exhibit 9) has been ignored (Exhibit 10).
2. Protected communications made to DOD IG investigator. In February 2004, I was interviewed by a DOD IG investigator, Mr. Ray Arp, who was investigating the conduct of the inquiry made by the AF GC, Mary Walker, during the spring of 2003 into allegations that the USAF Academy (AFA) was ignoring allegations of rape and sexual assault by male cadets. My testimony that Mary Walker was on notice of an earlier AF IG investigation into allegations that the Academy was not properly handling sexual assault allegations, conflicted directly with hers. She was aware of my testimony and it influenced her in her advice to the AF IG into allegations of sexual improprieties on my part. My testimony was also known by DOD GC, William J. Haynes, who no doubt read it as part of the legal review of the AF IG ROI and who advised the SECAF and SECDEF to ask the President to remove me as AF JAG.
Factors Demonstrating Violation of the MWPA
In January 2003, a media and political furor erupted over allegations of failure by the leadership of the AFA to appropriately handle allegations of rape and other sexual offenses at the AFA. The SECAF and CSAF, as encouraged by Mary Walker, almost instantly faulted the military legal advice received by the AFA Superintendent, concerning the handling of rape allegations. In numerous public fora and in interviews with the media, the SECAF in particular found it expedient to criticize judge advocates for giving inadequate legal advice to the AFA commanders. In one meeting of AFA alumni at the Pentagon, the SECAF and CSAF made a show of singling me out in front of the assembly of about 200 USAFA alumni to ask what I intended to do about the poor legal advice being given to commanders who were handling rape allegations.
In order to establish with more particularity the treatment of various AFA cases, SECAF appointed Mary Walker to do a study of the handling of all allegations of sexual misconduct at the AFA during the preceding 10 years. I was to have no role in the investigation except to provide resources to Walker’s “team.” During the course of the investigation, one of the members of the team, Colonel Morris Davis, reported to me that Mr. Kipling W. “Kip” AtLee from Mary Walker’s office had concluded that the report being prepared was going to omit reference to an IG ROI that had been conducted approximately six years before into allegations that the then Commandant, Brig General John Hopper, had been ignoring allegations of rape and sexual misconduct at the AFA. Although the earlier IG investigation concluded that Gen Hopper should be cleared of the allegation, Colonel Davis recognized that it was significant as having put the AF on notice of a possible “climate” issue. Mr. AtLee had himself played a role in the aftermath of the Hopper investigation, giving legal advice on the procedures subsequently adopted at the AFA for the handling of sexual assault allegations – the same procedures under attack in the January 2003 complaint. After my conversation with Colonel Davis, I immediately prepared an email (Exhibit 11) to send to Mary Walker to notify her that she should consider the earlier IG investigation. After getting my Deputy’s review of the email, I decided not to inflame the already tense relationship with Mary Walker via a “paper trail” document that would put her further on the defensive. Instead, I determined that I would suggest at our weekly meeting that she take a look at the earlier IG report as it was relevant to the current inquiry. At our meeting, Walker appeared to make a note of my recommendation. However, when the Walker report was finally issued, it contained no mention of the earlier Hopper investigation. The report concluded that with one possible exception, all allegations of rape or sexual assault at AFA had been appropriately handled by commanders.
When Congress commissioned former Representative Tillie Fowler to conduct an investigation into the AF’s handling of this matter, the Hopper inquiry was discovered and the Commission concluded that Mary Walker had acted to cover it up for Pentagon leadership. Walker almost immediately blamed me and my staff for not informing her of the existence of the Hopper report. (Exhibit 12) She convinced the SECAF that my office, and in particular Mr. Gordon Wilder, head of my Administrative Law Division, had purposely withheld that information from her. In fact, while I was on official travel in Turkey, she made that allegation in the presence of Mr. Wilder and General Rives, to the SECAF. The SECAF, once again believing whatever Walker told him, immediately wanted to take disciplinary action against Mr. Wilder. Informed of this development, I immediately flew back from Turkey to meet with the SECAF to inform him not only of the fact that Walker’s own staff (Mr. AtLee) had known about the earlier IG report, but also that I had personally informed Walker of its existence and suggested she look at it. Although the SECAF was assuaged by this information, Walker was again furious, calling me a liar in front of several of her staff, my deputy, and Mr. Wilder. Later, when the DOD IG investigation was conducted into the matter, I advised Mr. Arp as I have outlined above, providing him with a copy of the draft email. I have no doubt that Walker, the SECAF and CSAF were aware of my protected communication to the IG investigator and that my testimony gave Ms. Walker and Mr. Haynes added impetus to seek my destruction.
3. Protected Communications Concerning the Military Commission Process.
a. Protected Communications Regarding Military Commissions. I made oral and written protected communications to the DOD GC and AF GC during Nov 2001 – April 2002, which asserted the process created to prosecute detainees at Guantanamo Bay, was inadequate by nearly every legal standard, including that established after World War II. I repeatedly advised both DOD GC and AF GC that the American people and the international community would not accept prosecutions that appeared to be patently unfair by American standards of due process. This advice and advocacy was interpreted as disloyal and disruptive. A Military Commission process that reflected the Administration’s view that the process required only a semblance of due process was implemented over the objections of me and the other service JAGs. The Supreme Court recently declared illegal the Commission process implemented over the objection of me and the other JAGs. (U.S. v Hamdan) To this day, the Administration asserts that the detainees have no rights.
b. Protected Communications Regarding Military Commission Prosecution Staff. Based on information I received from Majors John Carr and Rob Preston of mismanagement and failure of leadership of the prosecution staff by Colonel Fred Borch, USA, I suggested to Brigadier General Tom Hemingway, Staff Judge Advocate to the Military Commissions Appointing Authority, that Colonel Borch needed to devote more time to managing the prosecution function. When I learned from Majors Carr and Preston that my suggestion had not solved the systemic problems in the Prosecution Office, I made a personal visit to the Military Commission Prosecution staff. That visit revealed a completely dysfunctional operation. I immediately made a protected communication to DOD GC William J. Haynes that the Military Commissions Prosecution staff was misleading the DOD senior leadership about its readiness to prosecute detainees at Guantanamo. I also made a protected communication to Mr. Haynes of allegations made to that effect by Majors Carr and Preston. Mr. Haynes, who had a vested interest in the Military Commission process, regarded my effort to seek integrity in the process and warn the DOD leadership of the potential for failure of the prosecution function as disloyal and disruptive. Mr. Haynes felt forced by me to direct an inquiry into the workings of the Military Commission Prosecution staff, which eventually resulted in the replacement of Colonel Borch. To date, no prosecution of a detainee has ever occurred and likely never will.
Factors Demonstrating Violation of the MWPA
Following the attacks of 11 Sep 2001, I was part of the DOD GC oversight group that was charged with implementing a Presidential Executive Order (E.O.) prescribing the creation of military commissions to prosecute those found to have engaged in terrorist acts against the United States. The E.O. had been largely lifted wholesale from that issued by the President immediately after World War II, before the creation of the Uniform Code of Military Justice. The E.O. posited an antiquated and legally unacceptable system by modern standards. In fact, the military lawyers found themselves trying to work around the E.O. to design a military commission process that could handle allegations of crimes committed by those detained at Guantanamo Bay with some semblance of due process. From the beginning of the process, it was clear that the advice of military lawyers was not desired or respected. I found myself constantly on the defensive justifying why the detainees should be granted the rights that other prisoners of war received under the Geneva Conventions. I often pointed out that if the detainees were not considered prisoners of war and hence eligible for the protections of the Geneva Conventions, then they had to be criminals subject to international and domestic criminal law, with a right to habeas corpus and trial, legal counsel, etc. It was only with the greatest effort that the military lawyers were able to convince the DOD civilian lawyers that in order to have a credible process, it would have to be one that reflected American values of justice, else we would appear to be hypocrites domestically and internationally.
I want it understood that I accepted the idea of military commissions, as there was ample precedent for them, but in my view, the Administration position on the rules to be applied to them was clearly outside the law. I unstintingly supported the Commission process by nominating some of my very best judge advocates for positions on both the prosecution staff and the defense staff. All those I appointed acquitted themselves with distinction, especially Colonel Will Gunn and Lt Col Sharon Shafer on the defense side and Majors John Carr and Rob Preston on the prosecution side. Colonel Craig Smith and Mr. James Russell worked diligently to help create a process that included at least minimal indicia of due process. We were nonetheless unsuccessful in convincing the DOD leadership to create a legally viable military commission process.
Despite my support for the Commissions, in December 2003, I became convinced that the actions of Colonel Fred Borch, Chief Prosecutor, were taking the commission process into sure embarrassment for the United States. Based on information I received from Majors Carr and Preston, I was uneasy about the statements of Colonel Borch that charges were about to be pressed against several detainees and that trials by military commissions would soon follow. I completely trusted the judgment of Majors Carr and Preston. In their view, there was no possibility of prosecution based on the totally inadequate information available to present a case. They were convinced that Colonel Borch had lost touch with the process and was misleading the DOD leadership about the Prosecution staff’s readiness to present cases. Based on my discussions with them, I asked General Hemingway to suggest to Colonel Borch that he spend less time at the Pentagon briefing the DOD staff and more time verifying the reports of his staff of progress toward prosecution of actual cases.
After several weeks, Majors Carr and Preston came back to me saying that they were now considered non-team players because they raised issues about the adequacy of the prosecution evidence, which they clearly saw as lacking in substance. In order to see for myself, my deputy and I visited the Prosecution and Defense staffs at their offices in Crystal City. The Prosecution staff gave us a briefing on the cases most ready to prosecute. After hearing the briefing, I was dismayed. It was clear that the Prosecution staff was in serious denial over the lack of information suitable for presenting a case and further had rationalized around the almost total lack of inter agency cooperation, thus making actual prosecution nearly impossible. For his part, Colonel Borch referred to my deputy and me as “spies” upon our departure. He made clear that the other prosecution staff members should regard Majors Carr and Preston as untrustworthy. Following my visit to the Prosecution staff, I briefed DOD GC Haynes and Mr. Dan Dell’Orto that there were serious, probably fatal, flaws in the Commission Prosecution staff’s approach and that I was concerned that SECDEF and the President might be getting misinformation about the readiness of the Commission staff to prosecute any detainees. This assessment was greeted with an icy agreement to “look into it.” That did not happen.
On 15 March 2004, Majors Carr and Preston authored an email to Colonel Borch outlining their concerns about the prosecution effort (Exhibit 13). Colonel Borch’s overreaction to their concerns, broadcast to the entire prosecution staff, was presented to me by Carr and Preston shortly after it was received, on 15 March 2004. Sensing that, if released to the media, the email exchange would be New York Times and Washington Post front page news, I immediately went to see AF GC Walker and DOD GC Haynes to present them with copies of the email exchange so that both would be aware of the issue. Mr. Haynes reaction surprised me. Instead of appreciating the effort to keep him informed, he appeared to blame me for the problem. He was not happy. He indicated that he wanted prosecutions to go forward and did not want (me) to disrupt the process. He insisted that I temporarily detail Major Carr to his office, no doubt to get one “disruptive” influence out of the prosecution office. I had clearly gained his enmity by bringing this problem to his level. The next day, following a meeting among Mr. Haynes, Mr. Dell’Orto, myself, Maj Gen Tom Romig, Admiral Mike Lohr, Colonel Al Droneberger, and a Marine representative whose name I do not recall, he reluctantly determined that the allegations of Major Carr and Major Preston could not be ignored and directed an inquiry. In order to protect the two officers, I requested that Majors Carr and Preston be returned to the AF for reassignment, with their permission. My request was later granted and I reassigned them to AF judge advocate duties and advised Mr. Haynes that I would not be nominating anyone to replace them, given the climate that then existed in the Prosecution staff toward AF personnel. When the inquiry report came back, it was clear that it had been significantly edited to characterize the situation as a personality conflict among high powered prosecutors. Nonetheless, it was determined that Colonel Borch was due to be relieved for a new assignment. Shortly thereafter he was moved to the Army JAG School as its historian. He clearly saw himself as being fired. Mr. Haynes clearly saw me as the architect of a setback for the effort to prosecute the detainees.
5. Protected Communications Regarding JAG Legislation. I made numerous protected communications to Mr. Haynes, Senator Graham and to others, that I strongly supported Senator Graham’s proposed legislation to increase the grade held by future JAGs to Lieutenant General. I repeatedly took the position that the legislation was needed in order to give the JAGs greater credibility and access to decision and policy makers in all levels of the DOD. This was considered a “fall on the sword” issue by Mary Walker and Mr. Haynes and both opposed the legislation with exceptional vigor, enlisting the SECDEF, service Secretaries and Chief’s of Staff to oppose it.
Factors Demonstrating Violation of the MWPA
Efforts to enhance the status of the service JAGs have periodically been mounted in Congress. The scandal of Abu Grhaib and the way in which military legal advice had been ignored in crafting the interrogation policies served as a focal point for legislation proposed by Senator Graham. It was designed to reinforce the independence of the service JAGs from the civilian GCs and to make sure the JAGs had sufficient grade to give them a seat at the table when the 3 & 4 star generals and high ranking civilian leaders met to discuss or decide policy questions. Too often, in my experience, policy decisions were made either without legal advice or with only the advice of the GC. While the GC’s office has many talented lawyers with prior judge advocate experience, too often it was the GC herself who attended the meetings. Hence, there was no uniformed legal perspective in the room to illuminate the operational aspects of decisions that had legal consequences. It was also my experience that, absent a third star, service JAGs would continue to be denied equal access to such decision meetings. I did not come to this conclusion lightly, because I was aware that there would be resistance among the uniformed leadership as well as the civilian leadership. Given that there are only so many general officer positions authorized by Congress, the provision of a third star for the service JAGs would mean some other position would lose a star. I knew this resistance would be especially so coming from General Jumper.
Having spent time in the JA front office in various assignments during the tenures of at least seven AF chiefs of staff, I knew what a supportive Chief was like and General Jumper was anything but a supportive chief. In the spring of 2003, following the issuance of a new Secretary of the AF Order governing the roles and missions of the GC and the JAG, Mary Walker issued legal policy guidance on housing privatization negotiations. While I believed she was entitled so to do, I warned her that the guidance sent to the field was incomplete, confusing and contradictory. I urged she issue supplemental clarifying guidance. She refused. I therefore determined to send supplemental guidance that would not conflict with the GC guidance, but would fill in procedural gaps left by the GC document. As happened so often, Mary Walker became enraged that I would attempt to supplement her guidance. She told me that I must withdraw it or that she would order me to do so. Since I knew that the field needed the supplemental guidance, I sought the assistance and counsel of General Jumper. Not wanting to waste his time, I drafted a note to him outlining the situation and asking if he wanted me to submit to the AF GC, given my view that she had no authority to order me to do anything. I hand delivered the note to General Jumper’s office and sat with his executive officer in the ante room awaiting an answer. No answer ever came. Twice, the executive officer went in to ask if he wanted to see me and both times was told to wait. He never did see me on the issue or give me an answer to my plea for assistance. In order to prevent a situation in which I would be forced to specifically refuse to follow the “order” of the GC, with no prospect of support from my boss, I withdrew the much needed supplemental guidance rather than have Mary Walker issue an order which I would have to refuse to protect the independence of the service JAGs.
Thus when DOD GC Haynes asked my opinion as to the necessity of the legislation regarding a third star for TJAGs, I answered truthfully that I considered it crucial to continued independence of the service JAGs and essential to ensuring routine access to the senior policy makers. Mr. Haynes took the position that the legislation was insulting to the GCs, especially the DOD GC. I told the same thing to Senator Graham and to others who supported the legislation. 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. Mary Walker was so determined to see the legislation defeated that she invoked 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. (Exhibit 14) Shortly after this, the anonymous complaint was filed, effectively removing me from any opportunity to influence the outcome of the legislative debate. The anonymous complaint surfaced just as the matter was in a crucial phase in the Senate Armed Services Committee. The legislation was subsequently modified to omit the proposal to elevate JAGs to three stars.
1. The anonymous complaint. The filing of the anonymous complaint, dated August 15, 2004, was official action made to appear to be the work of a disgruntled staff member.
In June 2004, senior political appointees were extremely upset that Senators McCain and Graham, with whom I was then in contact, had secured information about the internal processes of the DOD regarding creation of the DOD position on detainee interrogation techniques. The information I had furnished to them demonstrated that the Administration’s public assurances were false that the JAGs had agreed with the policy decisions taken. The DOD officials were enraged that someone had turned Senators Graham and McCain against the Administration position. They had decided that I was that person and that I would not merely be dismissed, but would be totally humiliated and destroyed so that I would serve as an example to the other JAGs about the consequences of crossing the Administration on this issue. It is my belief that I was identified through monitoring of my phone calls. That was no doubt accompanied by surreptitious scrutiny of my email in an effort to confirm what I was discussing with Senators Graham and McCain. Though a surreptitious search of my email did not find correspondence with Senators Graham and McCain, these DOD officials determined that they could create a scandal by portraying my email correspondence with female colleagues and friends as evidence of sexual misconduct.
The anonymous complaint, which included copies of several email messages sent by a female judge advocate to me, gives the appearance of having been made by some disgruntled member of my staff or a JAG Corps member who made the allegations from personal knowledge. However, obvious errors in the complaint, such as referring to certain people as judge advocates who weren’t, show that the complainant was not a member of my staff. The complaint provides information that could only have been gleaned from an extensive review of my entire email account over a long period of time. For example, the anonymous complaint referred to “call sign” names jokingly used by in email by my female former executive officer and me. The former executive officer was my occasional weekend jogging partner. We were often accompanied by my wife as well. Knowledge of the “call sign” names we used in email to set up jogging times could only have come from studying my email, since we never used them publicly. Not one witness testified that they had ever heard the “call sign” names. Additionally, all the members of my staff testified that they did not know the names of several of the people identified as my alleged paramours in the anonymous complaint.
Hence, only someone with the ability to study my email over a long term could have formulated the complaint. Like everyone, I periodically changed my password, and did so whenever I granted brief access to my secretary or executive officer, so no other JAG Corps member could have had legitimate access to my email account. Someone remotely “hacking” the AF server would be extremely unlikely. The extensive access to my email account required to formulate the anonymous complaint could only have been obtained by someone with investigative license or direction. Legitimate official monitoring of my email would have made anonymity unnecessary. But a retaliatory complaint formulated from a surreptitious official intrusion intended to weave a damaging case out of disparate personal email messages would have to be anonymous. The complainant did not claim to be personally aggrieved by any interaction with me. The complaint was purely an attack on my character calculated to do maximum damage to me on a subject which nearly everyone will accept. The notion of a powerful man engaged in inappropriate relationships is a staple of American drama. Clearly, allegations of sexual improprieties are a subject about which people are not only fascinated and wont to believe, but that they seem to enjoy believing, even without much evidence. The complaint played the sexism card to a system that has struggled to fully accept the notion that women are fully capable members of the AF. At the bottom line, the kind of access to my email account that it took to weave together the anonymous complaint could only have been approved or ordered by a senior AF or DOD official.
2. AF IG Investigation (S6567P). In 30 years as a judge advocate, reviewing hundreds of IG Reports of Investigation (ROI), the nearly 2000 page ROI in my case stands as a monument to witch hunting. I have never seen a ROI so clearly designed to support a predetermined conclusion. In view of the matters presented previously, particularly the involvement of the AF GC and DOD GC in advising the investigators, that is not surprising. What is surprising is that the investigation of a senior officer could be so devoid of investigative rigor and objectivity, but so full of prejudice, rampant sexism, speculation, innuendo, unsupported judgments, misstatements of fact and illogical conclusions.
Further evidence of retaliation was the periodic leaking to the media of selective bits of information from the investigation while it was ongoing. The intentionally false sound byte I had engaged in “more than a dozen affairs over ten years” was leaked early on in the investigation. These leaks were clearly designed to divert attention away from reasons for the retaliation, such as my official stands against Guantanamo detainee torture and others as detailed above. The DOD and the AF made no attempt to stop the leaks, or to issue official corrections to the leaked information, but opted instead to push the investigation to a hasty conclusion. To have an investigation of this magnitude pushed to completion in sixty days is unheard of and reflects the cavalier way in which it was approached and conducted. A subsequent, less complex investigation of a fellow general officer (S65978P) involving similar issues took six months to complete.
That haste resulted in investigator misconduct: (1) Investigator Colonel Donald Harris attempted to intimidate my defense counsel, Lt Colonel David Robertson, USA, with threats of sanction if he sought to talk to anyone who might be a witness in the case; (2) witnesses such as Major Michelle Pearce were obviously coached. She testified that she had no idea that she was a “sexual target” of mine until the investigators “pulled it together for her”; (3) the investigators misrepresented testimony such as that of SMSgt (ret) Lisa Fisher, whose memory was so poor that she answered over 130 times that she “didn’t know,” “couldn’t remember,” or “wasn’t sure” about the answers she gave. Nonetheless, the synopsis of her testimony reads like a coherent narrative detailing a romantic pursuit on my part; (4) lying to witnesses such as Ms Rachel Wallace, who requested and received assurance from the investigators that they would not disclose information about her interactions with me to her sister – failing to mention to Ms Wallace that they already had interviewed her sister, Lt Col Kathryn Wallace, and disclosed detailed information to her from Ms Wallace’s emails to me; (5) failure of the investigators to objectively examine witnesses such as Lt Col Deborah L. Collins, whose testimony that I improperly touched her in the midst of over 100 people was not only unsupported and even contradicted by her statements to others, but was inherently implausible. Nonetheless, based solely on her uncorroborated statement, an allegation of improper touching (later characterized as sexual harassment) was substantiated. This was one of the “more than a dozen affairs over ten years” characterized to the media; and (6) the failure of the investigators to correct the AF psychologist, Dr Linda Estes, in her belief that I had retained email from female friends as “trophies” of my alleged sexual exploits. They permitted Dr Estes to believe I had retained the emails when in fact, the emails to which she was referred long ago had been deleted by me, but retained on the AF server and retrieved by the investigators as part of their illegal search (see below) of my email.
The investigation report and the actions resulting from it were based almost entirely on an illegal search of my email ordered by Colonels Harris and Hagmaier, approved by Lt General Polk and Mary Walker. None of them has the authority to issue a valid search warrant. On 27 September 2006, the Armed Forces Court of Criminal Appeals ruled, in United States v. Long, (Exhibit 15) in a similar situation to mine that military personnel have a reasonable expectation of privacy in their official email and that it is not subject to search and seizure for a criminal investigation without an appropriate search warrant. While routine monitoring is nonetheless appropriate, wholesale search and seizure in a criminal investigation still requires adherence to the 4th Amendment to the Constitution. No search warrant was ever sought or granted in the investigation of my case. Hence all the email seized from the AF email server and my individual government computer which was used in the case together with the sworn statements of all the witnesses who were identified and interviewed based on the illegally seized email should have been omitted from consideration of the case.
The investigation was also tainted by the hypocrisy of investigator Colonel Tonya Hagmaier, who wrongly substantiated findings that I committed fraternization with two female Non-Commissioned Officers. Colonel Hagmaier does know a certain amount about fraternization since, as an officer on active duty at Wright-Patterson AFB, Ohio; she flagrantly dated and married an active duty master sergeant. She has never been disciplined in any way for that improper relationship. They are still married.
Perhaps the most egregiously retaliatory aspect of the investigation was the flagrant violation of the Military Mental Health Evaluation Protection Act, (National Defense Authorization Act of 1993, Pub. L. No. 102-484, Section 546) as implemented by Department of Defense (DOD) Instruction 6490.4 and DOD Guide 7050.6. At the behest of Colonels Harris and Hagmaier, with the approval of the AF IG, Lt General Steven Polk and AF GC, Mary L. Walker and possibly others, an illegal and unethical psychological evaluation of me was conducted by Major (Dr) Linda S. Estes, a psychologist assigned to the AF Office of Special Investigations at Andrews AFB, MD. Her diagnosis, based solely on having spent about 2 hours reading some selected set of my email messages, was that I was a sexual predator. She did not interview me or any witness, conduct any testing or request any formal clinical assessment, review my medical record or consult with any more experienced psychologist or forensic psychologist. None of the safeguards of the DOD Instruction or Guide were afforded me. Her evaluation and testimony as an expert witness prejudiced the entire investigation, the retaliating officials, and eventually the entire AF JAG Corps and most of the English speaking world, since it was reported internationally. The illegal evaluation pushed the investigation into a hysterical posture as desired by the retaliating officials. A reading of the ROI demonstrates beyond doubt that the entire ROI was written to support the illegal evaluation of Dr. Estes.
I filed a complaint with the Arizona Board of Psychologist Examiners regarding the unethical and illegal behavior of Dr. Estes. (Exhibit 16) I renew that complaint here and add to the complaint the illegal, prejudicial and retaliatory acts of the investigators, Lt Gen Polk, Mary Walker, Secretary Roche, General Jumper, DOD GC Haynes, General Cook and Maj Gen Rives regarding this particular violation. The illegal conduct of Dr. Estes is set out in detail in Exhibit 16 so I will not elaborate on it further here. On October 6, 2006, the Arizona Board of Psychologist Examiners voted to offer Major Estes a consent agreement for a written censure to be placed in her permanent professional record (a public document) for unprofessional conduct (Arizona Revised Statutes 32-2061 A13(o)) in that she offered an opinion that I was a sexual predator without foundation. That opinion was used to poison the minds of everyone involved in the internal decision making regarding my case. The power of that opinion cannot be overestimated. Hence, its prejudicial effect is reflected in every line of the ROI.
The report of investigation contains innumerable other instances of misbehavior by the investigators. Nonetheless, even with required legal reviews which should have noted the violation of the Military Mental Health Evaluation Protection Act, the ROI was nonetheless found to be “legally sufficient” to substantiate the allegations. Since the report was undoubtedly reviewed by the Navy, the AF GC, DOD GC and probably the AF JA at some point, all the legal authorities involved participated in the retaliation that formed the basis for the investigation in the first place.
At some point, the desire to use any and all means to discredit me crossed over into the absurd. Any objective legal review of the report would have to conclude that there was no evidence to support the Article 15 and Professional Responsibility allegation that I obstructed justice by deleting relevant email from my government account. Nonetheless, the allegation that I may have obstructed justice before I even knew about the anonymous complaint was found legally sufficient. That such an impossibly inadequate product could be held legally sufficient only confirms that it and its aftermath were of a purely retaliatory character.
Further Retaliatory Actions:
Following the AF IG investigation characterized by selective leaks to the media, efforts by Colonel Donald Harris to intimidate my defense counsel, investigator misconduct including lying to witnesses and intimidation, numerous procedural errors and denials of due process, I was subjected to several severely prejudicial, retaliatory adverse personnel actions including:
3. Article 15, UCMJ. On December 22, 2004 General Donald Cook imposed punishment on me under Article 15, UCMJ, including forfeiture of pay and a prejudicial reprimand. This action was imposed with a minimum of time to prepare and denial of requests for more time to prepare. We received only a portion of the IG report. General Cook’s lawyers refused to release important evidence to us unless I demanded trial by court martial. Witnesses who had been intimidated by the IG investigators feared speaking to my counsel or me. This entire matter occurred during a holiday period in which many of those who might have assisted in my defense could not be contacted due to their holiday travel plans.
4. Removal from my position as AF JAG. Demonstrating again the prejudged nature of this entire proceeding, the SECAF recommended to SECDEF my removal from the position of JAG on 3 December 2004, before I had even had a chance to offer any defense. I did not know any allegations had been substantiated until 8 December 2004.
5. Officer Grade Determination. An exceptionally harsh officer grade determination (OGD) was levied on me based on the above flawed IG ROI. The OGD board appears to have totally ignored the submission made by defense counsel on my behalf, as it was never mentioned, quoted, or summarized in the OGD report. Following the OGD recommendations, the SECAF directed my retirement as a colonel, despite my nearly six years of service as a general officer, of which nearly five were spent as a major general.
6. Security Clearance File Notation. I was notified that the Vice CSAF intended to suspend my security clearance and place unfavorable information in my security clearance file. I submitted a rebuttal to the Vice Chief. I was never further notified and have been unable to determine what information was included in that file. Based upon the retaliatory character of this action, no information related to this investigation and especially the illegal and unethical mental health evaluation should be permitted to exist in any official government file or compilation of information about me.
7. Professional Responsibility Inquiry. Following imposition of Article 15, UCMJ, punishment on me in December 2004, Major General Jack Rives, then performing the duties of the Judge Advocate General, needed to demonstrate that he had not known of or condoned my alleged inappropriate relationships. Facing his own confirmation to be TJAG, he ordered an unprecedented inquiry into the professional responsibility implications of the actions taken against me. The resulting inquiry, conducted by Rear Admiral Bruce MacDonald of the Navy and supported by General Rives, abrogated the AF professional responsibility process contained in AF TJAG Policy Memorandum TJS-5. (Exhibit 17)
I had actually written the first published edition of the AF Rules of Professional Responsibility in 1988 when I served as the AF JAG ethics administrator, a position I held for three years. During that time, I coordinated all JAG ethics inquiries and investigations, compiled a history of those inquires and created a method of providing ethics guidance to the field when cases were decided which established precedent or guidance that the field should know. I was aware of every reported ethics inquiry during the history of the AF JAG Corps. None ever involved an adverse professional responsibility finding involving a relationship unless that relationship was itself a conflict of interest involving a case, e.g., improper relationship between a judge and the prosecutor of a case before that judge.
Since none of the offenses of which I had been accused in the Article 15 involved any client, case or matter which was within my official duties, I could not imagine how any finding of violation of the AF Rules of Professional Responsibility could occur. I accepted that the allegation that I had improperly deleted relevant email, while untrue, was a matter that deserved inquiry. If established, it could constitute a violation of the Rules. In no case prior to mine had any lawyer ever been found to have violated the Rules of Professional Responsibility based on a mere regulatory violation, such as that governing fraternization. From the start, the process deviated wildly from that set out in TJAG guidance. I understand the way it was supposed to work because I wrote it while serving as Deputy Judge Advocate General and then reissued it early in my tenure as TJAG.
In a case such a mine, once an allegation is made that conduct violates the Rules, an inquiry is conducted and TJAG then notifies the purported violator of the violations he intends to find. TJAG provides the alleged violator with a copy of the report of inquiry receives the comments and submissions of the alleged violator and then decides what violations are established and notifies the lawyer of his findings. That is in fact the procedure I used when ethics allegations were leveled against a judge advocate colonel in the reserve accused of plagiarizing another’s paper for an Air War College writing requirement. See Para 11, AF TJAG Policy Memorandum TJS-5, page 6. (Exhibit 17)
In my case, the notification of the intended findings occurred first and it was stated that the evidence was the IG ROI. Counsel and I were given a nearly impossible deadline to make a submission. My counsel, Colonel Carlos McDade, USAF, and Lt Colonel Dave Robertson, USA, through heroic effort, put forward a sound and cogent defense within the time allowed. No aspect of the nearly 40 pages of defense submission was even noted in the MacDonald Report of Inquiry. It had been ignored.
General Rives had been nominated to replace me following my intended retirement on 1 Jun 2005. General Rives was facing a difficult confirmation process in view of the same animus of Mary Walker and William J. Haynes that had been applied to me. Amidst allegations that he had been aware of my alleged inappropriate actions, he found it expedient to deny me the due process to which I was entitled under the policy directive. Admiral MacDonald’s investigation report and conclusions as well as General Rives’ findings that I violated the AF Rules of Professional Responsibility were and are completely without merit. The Rules require a finding of having committed criminal acts to constitute a violation of Rule 8.4(b). As Article 15 is not a criminal proceeding requiring adherence to the Military Rules of Evidence and has a much less rigorous standard of proof, there was no finding of criminal activity.
Nonetheless, on 1 Mar 05, General Rives’ made the stunning determination, that I violated several provisions of the AF Rules of Professional Responsibility. These findings were not only wrong, they were totally unprecedented. What was unknown to counsel and me until April 2005, over two months after my retirement, was that Admiral MacDonald and General Rives had changed the allegation of obstruction of justice after we responded. Obviously recognizing that the Article 15 allegation of obstruction of justice was unsupportable, they surreptitiously changed the allegation from one covering a period of seven days to one of nearly four months and changed the substance from deletion of individual email to deletion of an entire email folder. Statements gathered by MacDonald, after he had received my reply, were added to the inquiry report. Those statements and supporting documents have never been provided to me, despite my FOIA and Privacy Act requests for them. Since I had not deleted relevant email following notification of the anonymous complaint, I sought correction of this illegal and unethical action internally though petitioning General Rives and the AF CSAF and Vice CSAF. I provided evidence that the AF Professional Responsibility determination about deleting an email folder was wrong (Exhibit 18). My evidence has been ignored in further retaliation for the above cited protected communications which triggered the chain of events leading to the Professional Responsibility determination.
General Rives further retaliated against me by providing to my state law licensing authority the professional responsibility inquiry report (the same one which I have been denied) seeking to have the state bar authorities remove me from the practice of law. In the process, the AF leadership, the entire JA community, my state licensing authority, and the entire American legal community were intentionally misled as to the nature of my alleged conduct. To its credit, the Iowa Supreme Court dismissed the AF complaint without a hearing.
General Rives has engaged in numerous other acts of retaliation against me in order to distance himself from me for political purposes. He held a conference of senior judge advocates in February or March 2005, designed to smear my name by conducting an extensive review of the IG report. The CSAF, General Jumper, addressed the group to additionally smear my name. Further, all members of the JAG Corps were encouraged to submit comments about my case via email to Rives. Given the hideously distorted picture painted by the ROI, it is little wonder that those emailed comments convey a sense of revulsion about me. An interesting form of retaliation has been Gen Rives effort to obliterate the fact that I ever actually served as TJAG for over two and a half years. For example, he has determined that my picture should not hang in the AF JAG School with those of the other former TJAGs.
8. Publication of the IG Report on the Internet. The intentionally destructive publication of the IG Report of Investigation on the internet has inflicted permanent, irreparable damage to my personal and professional reputation, harmed my family and friends and has rendered me unemployable. Before my case, no IG ROI involving personal conduct had ever been published on the internet. The harm caused to me and my family continues unabated to this very day, since the ROI remains available on the AF official website. At the same time, my official biography has been removed from that website.
9. Improper denial and delay by AF/JA and AF/GC of legitimate FOIA and Privacy Act Requests. AF JA and AF GC had denied and delayed responding to several FOIA and Privacy Act requests for documents and data that would have supported my defense to the above actions and have aided in the compilation of this complaint. The denial and delay in handling my FOIA and Privacy Act requests are instructive as to the degree of bias, hostility, and lack of objectivity that has been created around my case and the lengths to which the AF and DOD retaliating officials will go to thwart my efforts to demonstrate that the above actions were retaliatory in nature. By way of example, a recent FOIA “release” of some 67 pages of email among and between Mary Walker, SECAF Roche and MGen Rives discussing my case prior to and after completion of the IG investigation, had over 95% blacked out. However, even with only 5% visible, it is clear that Mary Walker attempted at every turn to drive the investigation and the actions taken in response to it. The nearly worthless release was calculated to cover and perpetuate the retaliation against me.
a. Withdrawal and invalidation of AF IG Investigation Report #S6576P and removal of it from any official publication, statement or website, including any embedded hyperlinks to it such as exist in the official biography of General Donald Cook.
b. Correction of my military record to remove evidence of punishment imposed under Article 15, UCMJ, and in lieu thereof, substitution of a Letter of Admonition for an unprofessional relationship with a female military officer.
c. Correction of my military record to reflect continued service as AF Judge Advocate General through and including the date of my retirement, 1 Feb 2005.
d. Correction of my military record to reflect retirement in the grade of Major General, effective 1 Feb 2005.
e. Restoration of any rights, privileges and property to which I am entitled by virtue of the above corrections.
f. Removal of any adverse notations contained in any file or document bearing on my eligibility for a security clearance and restoration of my security clearance.
g. Withdrawal of the adverse AF Professional Responsibility determination by Major General Jack Rives, dated 1 Mar 2005, and voidance of the Report of Inquiry compiled by Rear Admiral Bruce MacDonald, which forms its basis.
h. Restoration of my official biography on the AF website and official indication of the invalidation of the AF IG report S6567P.
i. Appropriate disciplinary and administrative action against those found to have violated my rights and/or to have otherwise acted inappropriately/illegally in my case.
I am prepared to assist the DOD IG or other agency appointed to investigate this complaint. Thank you for your consideration of this matter.