Thomas J. Fiscus, 14th Judge Advocate General United States Air Force
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).