Thomas J. Fiscus, 14th Judge Advocate General United States Air Force
Me (center) with Air Force paralegals and BG Charlie Dunlap (right) in Afghanistan - July 2004
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.
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: