| Thomas J. Fiscus, 14th Judge Advocate General United States Air Force |
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| Me (center) with Air Force paralegals and BG Charlie Dunlap (right) in Afghanistan - July 2004 |
| Strange Days |
It was my fate to enter into the duties of Judge Advocate
General of the Air Force during one of the most difficult,
tumultuous and politically rending times in our nation’s
history. The attacks of September 11, 2001, made us different
from whom we were before that date. But, it didn’t mean we
should abandon the Constitution. In that way, my story is part
of one that is much larger and vastly more important. It is
part of this administration's grasp for power that goes far
beyond the Constitution, our laws and our commitment to the
international rule of law. It is emblematic of this
administration's determination to crush any opinion within it's
ranks that does not accord with its own conventional
"wisdom". Others who have also attempted to work within
the system to make sure decisions are based on truth and
reason, such as Ambassador Joe Wilson and his wife Valerie
Plame, former Justice Department attorney Jesslyn Radack,
and Major General Tony Taguba, have felt the power of the
Bush administration's drive to assassinate reasoned and
principled critical thinking.
General of the Air Force during one of the most difficult,
tumultuous and politically rending times in our nation’s
history. The attacks of September 11, 2001, made us different
from whom we were before that date. But, it didn’t mean we
should abandon the Constitution. In that way, my story is part
of one that is much larger and vastly more important. It is
part of this administration's grasp for power that goes far
beyond the Constitution, our laws and our commitment to the
international rule of law. It is emblematic of this
administration's determination to crush any opinion within it's
ranks that does not accord with its own conventional
"wisdom". Others who have also attempted to work within
the system to make sure decisions are based on truth and
reason, such as Ambassador Joe Wilson and his wife Valerie
Plame, former Justice Department attorney Jesslyn Radack,
and Major General Tony Taguba, have felt the power of the
Bush administration's drive to assassinate reasoned and
principled critical thinking.
Having been totally apolitical and sworn to support and defend our Constitution throughout my adult life, I thought it my duty as Judge
Advocate General to argue forcefully within the DOD: (1) against detainee military commissions procedures that ignored fundamental concepts
of American justice; (2) torturous detainee interrogation techniques that placed the United States outside domestic law and the common
international law known as the Geneva Conventions; (3) against unrelenting efforts by the current Administration to politicize military legal
advice given to commanders; and (4) for a military grade for future Judge Advocates General that would insure uniformed legal advice is heard
at the highest levels of the military services.
My views made me no friends in the DOD and White House civilian legal establishment. In fact, they saw my dissenting inputs as disloyalty.
After the Abu Grhaib debacle, I was approached by Senator Lindsay Graham. As a result of that contact, I began to quietly cooperate with him
and Senator John McCain. They were investigating the DOD/White House decision-making that resulted in the institution of torturous
interrogations of detainees at Guantanamo and Abu Grhaib. Senator Graham said I would be protected in cooperating with him and Senator
McCain. When my cooperation with Graham and McCain became known to the DOD civilian hierarchy, the Administration decided to make sure
I would be no threat. The protection promised by Graham never materialized.
So, in August 2004, my life and career, my reputation and friendships, and my future employment opportunities were radically altered by an
officially sponsored anonymous complaint which claimed I had numerous inappropriate relationships with female members of the Air Force and
several female civilians. The complaint was clearly based on an illegal search of my email. What followed was a shoddy and disgustingly sexist
Air Force Inspector General investigation directed by the Air Force and DOD General Counsels. It was conducted to support the “decision” to
dramatically end my military service. During the investigation, carefully crafted sound bites were intentionally leaked to the media. Those leaks
portrayed me as a kind of Don Juan, preying on the female members of my staff and my female friends. The investigation strayed into the
absurd, but its purpose was to make sure my knowledge and experience in matters of national concern would not be sought in any forum.
Though none of the military witnesses testified to a sexual relationship or even sexual harassment, the allegations were transformed into
vague formal charges. (In order to have a greater understanding of the case, I urge the reader to examine my counsel's presentation to the
Officer Grade Determination Board.) Thereafter, I was removed from my position, punished under the Uniform Code of Military Justice,
stripped of my security clearance, retired two grades lower than the one I had held for nearly five years and subjected to an unprecedented
legal ethics investigation that violated the very ethics processes I had enacted as Judge Advocate General. My wife, Carolyn, and my children
were humiliated by the press accounts of my alleged exploits and how we were "trying to save our marriage." The future I had hoped and
trained for as an urban school district superintendent was destroyed. The Air Force even sought to have my law license lifted by my licensing
state. Fortunately, the Supreme Court of Iowa was not under DOD control and it rejected the Air Force ethics complaint without a hearing.
The DOD so often portrays itself as "family" oriented, but it had no regard at all for the damage it could and did do to my family. It is hard to see
what legitimate interest of the military was served by such a severe and brutally public humiliation of me and my family, given that at most one
military witness agreed that there was some romantic connection and none felt they were a victim. Though the Inspector General investigation
report presents the case entirely as female victimization by an overbearing male, that is completely the opposite conclusion one would reach
through an objective reading of the witness testimony. None of the witnesses identified through the sifting of my e-mail ever claimed they
were victimized by me.
In Military Justice Basics, I briefly describe the process that was applied in my case, and how it differs from a military criminal trial known as a
court-martial. Some may question why a person who believes himself not guilty would "accept" the process under Article 15 of the Code, as I
did, and not demand a full blown trial by court-martial. Under military law, "accepting" the Article 15 process is not a guilty plea.
It is simply a choice to have the Commander consider the case himself as an administrative matter rather than turn it over to the court-martial
process. There are many reasons I "accepted" the Article 15 process, but the key reason was that the allegations (see the page Disciplinary
Action) were not specific violations of the Code, but were allegations that I acted in a way that was "unbecoming an officer". As you will see in
my discussion of the formal allegations for which I was punished, the amount of discretion involved in considering them made any defense
nearly impossible. How does one defend against an allegation that one's email was "inappropriately intimate" despite the fact it does not
discuss sexual matters? I first learned of the allegations late on December 8, 2004. I was given three days to decide whether to accept the
Article 15 forum or demand trial. I was allowed no extensions of time to consider my options. We received an excerpt of the AF IG Report on
the evening of December 10 and I was ordered to appear, no extensions of time allowed, before General Donald Cook, the Commander of Air
Education and Training Command, on December 20, 2004.
I believe I should have prevailed had I taken the case to trial. However, the near hysteria surrounding the case made the risk of conviction of
something simply too great to take. Under those circumstances, I could have received a federal conviction for an act no one outside the
military would consider a crime, e.g., allowing another person to use their first name in signing an email. Such a result, even if reversed later,
could result in the forfeiture of all pension and health benefits in retirement and the loss of my law license. Once the allegations were
revealed to us, it became clear that there was nothing my defense team could say or do to stop the rush to judgment. I relied on the
professional good sense of General Cook to see the case for the witch hunt it was and require the Air Force to produce solid evidence to back
its allegations. My reliance on that professionalism was misplaced.
So much of what happened in my case, from the filing of the bizarre anonymous complaint against me, to my forced retirement as a colonel, was
the product of outright illegal reprisal by senior civilian and military personnel in DOD. To challenge that reprisal in a calmer atmosphere, I
filed a complaint of reprisal in November 2006. My complaint explains why those political appointees and some of my uniformed leadership
wanted me crushed and shows the steps they took to effect the assassination of my career.
The complaint was filed over a year ago, I am still awaiting action. My efforts to engage my Congressional delegation have been fruitless with
Senator Gordon Smith's (R-OR) office agreeing only to act as a conduit for communications received from the DOD. Neither Senator Ronald
Wyden D-OR) or Congressman David Wu (D-OR) even acknowledged my requests for assistance. Despite all we have learned about the
operation of the Bush administration in the three years since my case arose, people still have a hard time accepting that the Administration
acts the way it does - the way it did in my case and so many others.
My complaint lists five main areas in which I ran afoul of the Bush Administration:
1. My objections to DOD policies on detainee interrogations that ignored domestic and international law, and
2. My assistance to Senators Graham and McCain investigating torturous interrogation techniques applied to detainees at Guantanamo,
Iraq and Afghanistan.
3. My positions on Military Commissions set up to try the detainees at Guantanamo and the woeful job done by the government to support
prosecutions.
4. My testimony to a DOD IG investigator about the conduct of the Walker Commission investigating sexual assault response at the Air
Force Academy
5. My support of legislation designed to enhance the status of Judge Advocates General through an appropriate grade to ensure their
voice in military matters of great national import
I have added links to the documents referred to in the complaint for the ease of the reader. Other links in the text take the reader to resources
that may help illuminate the issues.
Those with questions or comments can send them to me by clicking on the Contact Me button.
Please click on the link to read and consider my Complaint to the DOD IG.
Advocate General to argue forcefully within the DOD: (1) against detainee military commissions procedures that ignored fundamental concepts
of American justice; (2) torturous detainee interrogation techniques that placed the United States outside domestic law and the common
international law known as the Geneva Conventions; (3) against unrelenting efforts by the current Administration to politicize military legal
advice given to commanders; and (4) for a military grade for future Judge Advocates General that would insure uniformed legal advice is heard
at the highest levels of the military services.
My views made me no friends in the DOD and White House civilian legal establishment. In fact, they saw my dissenting inputs as disloyalty.
After the Abu Grhaib debacle, I was approached by Senator Lindsay Graham. As a result of that contact, I began to quietly cooperate with him
and Senator John McCain. They were investigating the DOD/White House decision-making that resulted in the institution of torturous
interrogations of detainees at Guantanamo and Abu Grhaib. Senator Graham said I would be protected in cooperating with him and Senator
McCain. When my cooperation with Graham and McCain became known to the DOD civilian hierarchy, the Administration decided to make sure
I would be no threat. The protection promised by Graham never materialized.
So, in August 2004, my life and career, my reputation and friendships, and my future employment opportunities were radically altered by an
officially sponsored anonymous complaint which claimed I had numerous inappropriate relationships with female members of the Air Force and
several female civilians. The complaint was clearly based on an illegal search of my email. What followed was a shoddy and disgustingly sexist
Air Force Inspector General investigation directed by the Air Force and DOD General Counsels. It was conducted to support the “decision” to
dramatically end my military service. During the investigation, carefully crafted sound bites were intentionally leaked to the media. Those leaks
portrayed me as a kind of Don Juan, preying on the female members of my staff and my female friends. The investigation strayed into the
absurd, but its purpose was to make sure my knowledge and experience in matters of national concern would not be sought in any forum.
Though none of the military witnesses testified to a sexual relationship or even sexual harassment, the allegations were transformed into
vague formal charges. (In order to have a greater understanding of the case, I urge the reader to examine my counsel's presentation to the
Officer Grade Determination Board.) Thereafter, I was removed from my position, punished under the Uniform Code of Military Justice,
stripped of my security clearance, retired two grades lower than the one I had held for nearly five years and subjected to an unprecedented
legal ethics investigation that violated the very ethics processes I had enacted as Judge Advocate General. My wife, Carolyn, and my children
were humiliated by the press accounts of my alleged exploits and how we were "trying to save our marriage." The future I had hoped and
trained for as an urban school district superintendent was destroyed. The Air Force even sought to have my law license lifted by my licensing
state. Fortunately, the Supreme Court of Iowa was not under DOD control and it rejected the Air Force ethics complaint without a hearing.
The DOD so often portrays itself as "family" oriented, but it had no regard at all for the damage it could and did do to my family. It is hard to see
what legitimate interest of the military was served by such a severe and brutally public humiliation of me and my family, given that at most one
military witness agreed that there was some romantic connection and none felt they were a victim. Though the Inspector General investigation
report presents the case entirely as female victimization by an overbearing male, that is completely the opposite conclusion one would reach
through an objective reading of the witness testimony. None of the witnesses identified through the sifting of my e-mail ever claimed they
were victimized by me.
In Military Justice Basics, I briefly describe the process that was applied in my case, and how it differs from a military criminal trial known as a
court-martial. Some may question why a person who believes himself not guilty would "accept" the process under Article 15 of the Code, as I
did, and not demand a full blown trial by court-martial. Under military law, "accepting" the Article 15 process is not a guilty plea.
It is simply a choice to have the Commander consider the case himself as an administrative matter rather than turn it over to the court-martial
process. There are many reasons I "accepted" the Article 15 process, but the key reason was that the allegations (see the page Disciplinary
Action) were not specific violations of the Code, but were allegations that I acted in a way that was "unbecoming an officer". As you will see in
my discussion of the formal allegations for which I was punished, the amount of discretion involved in considering them made any defense
nearly impossible. How does one defend against an allegation that one's email was "inappropriately intimate" despite the fact it does not
discuss sexual matters? I first learned of the allegations late on December 8, 2004. I was given three days to decide whether to accept the
Article 15 forum or demand trial. I was allowed no extensions of time to consider my options. We received an excerpt of the AF IG Report on
the evening of December 10 and I was ordered to appear, no extensions of time allowed, before General Donald Cook, the Commander of Air
Education and Training Command, on December 20, 2004.
I believe I should have prevailed had I taken the case to trial. However, the near hysteria surrounding the case made the risk of conviction of
something simply too great to take. Under those circumstances, I could have received a federal conviction for an act no one outside the
military would consider a crime, e.g., allowing another person to use their first name in signing an email. Such a result, even if reversed later,
could result in the forfeiture of all pension and health benefits in retirement and the loss of my law license. Once the allegations were
revealed to us, it became clear that there was nothing my defense team could say or do to stop the rush to judgment. I relied on the
professional good sense of General Cook to see the case for the witch hunt it was and require the Air Force to produce solid evidence to back
its allegations. My reliance on that professionalism was misplaced.
So much of what happened in my case, from the filing of the bizarre anonymous complaint against me, to my forced retirement as a colonel, was
the product of outright illegal reprisal by senior civilian and military personnel in DOD. To challenge that reprisal in a calmer atmosphere, I
filed a complaint of reprisal in November 2006. My complaint explains why those political appointees and some of my uniformed leadership
wanted me crushed and shows the steps they took to effect the assassination of my career.
The complaint was filed over a year ago, I am still awaiting action. My efforts to engage my Congressional delegation have been fruitless with
Senator Gordon Smith's (R-OR) office agreeing only to act as a conduit for communications received from the DOD. Neither Senator Ronald
Wyden D-OR) or Congressman David Wu (D-OR) even acknowledged my requests for assistance. Despite all we have learned about the
operation of the Bush administration in the three years since my case arose, people still have a hard time accepting that the Administration
acts the way it does - the way it did in my case and so many others.
My complaint lists five main areas in which I ran afoul of the Bush Administration:
1. My objections to DOD policies on detainee interrogations that ignored domestic and international law, and
2. My assistance to Senators Graham and McCain investigating torturous interrogation techniques applied to detainees at Guantanamo,
Iraq and Afghanistan.
3. My positions on Military Commissions set up to try the detainees at Guantanamo and the woeful job done by the government to support
prosecutions.
4. My testimony to a DOD IG investigator about the conduct of the Walker Commission investigating sexual assault response at the Air
Force Academy
5. My support of legislation designed to enhance the status of Judge Advocates General through an appropriate grade to ensure their
voice in military matters of great national import
I have added links to the documents referred to in the complaint for the ease of the reader. Other links in the text take the reader to resources
that may help illuminate the issues.
Those with questions or comments can send them to me by clicking on the Contact Me button.
Please click on the link to read and consider my Complaint to the DOD IG.
