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