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