Thomas J. Fiscus, 14th Judge Advocate General United States Air Force
Testimony to DOD IG on Walker Commission
2. Protected communications made to DOD IG investigator. In February 2004, I was interviewed by a DOD IG investigator, Mr. Ray Arp, who was investigating the conduct of the inquiry made by the AF GC, Mary Walker, during the spring of 2003 into allegations that the USAF Academy (AFA) was ignoring allegations of rape and sexual assault by male cadets. My testimony that Mary Walker was on notice of an earlier AF IG investigation into allegations that the Academy was not properly handling sexual assault allegations, conflicted directly with hers. She was aware of my testimony and it influenced her in her advice to the AF IG into allegations of sexual improprieties on my part. My testimony was also known by DOD GC, William J. Haynes, who no doubt read it as part of the legal review of the AF IG ROI and who advised the SECAF and SECDEF to ask the President to remove me as AF JAG.
Factors Demonstrating Violation of the MWPA
In January 2003, a media and political furor erupted over allegations of failure by the leadership of the AFA to appropriately handle allegations of rape and other sexual offenses at the AFA. The SECAF and CSAF, as encouraged by Mary Walker, almost instantly faulted the military legal advice received by the AFA Superintendent, concerning the handling of rape allegations. In numerous public fora and in interviews with the media, the SECAF in particular found it expedient to criticize judge advocates for giving inadequate legal advice to the AFA commanders. In one meeting of AFA alumni at the Pentagon, the SECAF and CSAF made a show of singling me out in front of the assembly of about 200 USAFA alumni to ask what I intended to do about the poor legal advice being given to commanders who were handling rape allegations.
In order to establish with more particularity the treatment of various AFA cases, SECAF appointed Mary Walker to do a study of the handling of all allegations of sexual misconduct at the AFA during the preceding 10 years. I was to have no role in the investigation except to provide resources to Walker’s “team.” During the course of the investigation, one of the members of the team, Colonel Morris Davis, reported to me that Mr. Kipling W. “Kip” AtLee from Mary Walker’s office had concluded that the report being prepared was going to omit reference to an IG ROI that had been conducted approximately six years before into allegations that the then Commandant, Brig General John Hopper, had been ignoring allegations of rape and sexual misconduct at the AFA. Although the earlier IG investigation concluded that Gen Hopper should be cleared of the allegation, Colonel Davis recognized that it was significant as having put the AF on notice of a possible “climate” issue. Mr. AtLee had himself played a role in the aftermath of the Hopper investigation, giving legal advice on the procedures subsequently adopted at the AFA for the handling of sexual assault allegations – the same procedures under attack in the January 2003 complaint. After my conversation with Colonel Davis, I immediately prepared an email (Exhibit 11) to send to Mary Walker to notify her that she should consider the earlier IG investigation. After getting my Deputy’s review of the email, I decided not to inflame the already tense relationship with Mary Walker via a “paper trail” document that would put her further on the defensive. Instead, I determined that I would suggest at our weekly meeting that she take a look at the earlier IG report as it was relevant to the current inquiry. At our meeting, Walker appeared to make a note of my recommendation. However, when the Walker report was finally issued, it contained no mention of the earlier Hopper investigation. The report concluded that with one possible exception, all allegations of rape or sexual assault at AFA had been appropriately handled by commanders.
When Congress commissioned former Representative Tillie Fowler to conduct an investigation into the AF’s handling of this matter, the Hopper inquiry was discovered and the Commission concluded that Mary Walker had acted to cover it up for Pentagon leadership. Walker almost immediately blamed me and my staff for not informing her of the existence of the Hopper report. (Exhibit 12) She convinced the SECAF that my office, and in particular Mr. Gordon Wilder, head of my Administrative Law Division, had purposely withheld that information from her. In fact, while I was on official travel in Turkey, she made that allegation in the presence of Mr. Wilder and General Rives, to the SECAF. The SECAF, once again believing whatever Walker told him, immediately wanted to take disciplinary action against Mr. Wilder. Informed of this development, I immediately flew back from Turkey to meet with the SECAF to inform him not only of the fact that Walker’s own staff (Mr. AtLee) had known about the earlier IG report, but also that I had personally informed Walker of its existence and suggested she look at it. Although the SECAF was assuaged by this information, Walker was again furious, calling me a liar in front of several of her staff, my deputy, and Mr. Wilder. Later, when the DOD IG investigation was conducted into the matter, I advised Mr. Arp as I have outlined above, providing him with a copy of the draft email. I have no doubt that Walker, the SECAF and CSAF were aware of my protected communication to the IG investigator and that my testimony gave Ms. Walker and Mr. Haynes added impetus to seek my destruction.