Two prominent legislators recently pressed the Air Force for answers concerning an apparently unhinged witch hunt taking place over the past two years at Laughlin Air Force Base in Texas. This legal cluster bomb, which we’ve chronicled here extensively, has ruined the careers and fundamentally altered the lives of several officers on the basis of bare suspicion alone — this according to documents obtained and reviewed by JQP as well as statements from individuals close to the situation.
As veterans themselves, Rep. Adam Kinzinger (R-IL) and Rep. Duncan Hunter (R-CA) understand more than most the susceptibility of military justice to the authoritarian pressures of the chain of command. But as they await responses to the valid questions they’ve posed to General Mark Welsh (responses that are reportedly the subject of a frantic staffing effort at the highest levels of the service), even these two shrewd lawmakers may not yet grasp the scale and severity of lawlessness that has turned Laughlin into a modern-day Salem.
It turns out the entire episode was based on enforcement of a questionable rule that might not be facially legal, is unbelievably misguided, and that nobody knew existed at the time they were charged with violating it.
Air Education and Training Command Instruction (AETCI) 36-2909, which went into effect December 2nd, 2013, implemented new restrictions on relationships between instructors and students in Air Force training programs.
Responding generally to nascent sexual abuse prevention imperatives and specifically to sexual improprieties between instructors and students in previous AETC scandals, the instruction strictly outlawed personal, social, intimate, or sexual relationships between instructors and students. The prohibitions imposed apply regardless of rank, irrespective of whether relationships pre-date participation in training, and are blind to differences in the relative formality of varying training environments.
But the instruction, entitled “Recruiting, Education, and Training Standards of Conduct” went further. It also enacted new requirements for airmen to actively monitor for and report violations of restrictions on unprofessional relationships.
Quoting from paragraph 1.3:
“Recruiters, faculty, and staff members with knowledge of an alleged violation, or attempted violation … shall immediately report the allegation to an appropriate authority, unless otherwise exempted by operation of law, regulation, or policy.
Failure to observe the provisions of this paragraph and its subparagraphs by military personnel is a violation of Article 92, [Uniform Code of Military Justice (UCMJ)].
‘Knowledge’ means awareness of an allegation. It does not require a belief in the accuracy or truth of the allegation. Knowledge may be obtained by any means, including, but not limited to, witnessing the offense, statements by third parties, and course surveys, critiques or comment cards.”
This is obviously an attempt by AETC officials to make airmen responsible for ensuring violations don’t fly beneath the radar coverage of the chain of command. On the surface, this might seem to many like a reasonable approach to dealing with the problem by making airmen an ever-present extension of leadership — mobile, embedded eyes and ears best positioned to detect relevant information.
But … if that sounds close to the definition of spying, it’s because it overlaps almost completely, creating unreasonable expectations and absurd consequences when the rule is put into motion. In application, it requires anyone who hears anything — even a rumor they suspect is false from a third party they suspect has no direct knowledge — to report it as an allegation to those with legal authority to inflict severe punishment without further evidence.
This rule has been used to dole out harsh, career ending punishments to officers who failed to tell commanders when they heard jawboning about romantic goings-on between instructors and students.
But that’s not the worst part. The worst part is that they didn’t even know the requirement to report existed when they were hearing the rumors, and therefore had no reason to believe they were doing anything wrong.
When AETCI 36-2909 was placed into effect in late 2013, it came with a requirement for commanders at all levels to ensure airmen were made aware of its strengthened provisions:
“1.5. Training Requirements. All commanders, judge advocates, investigators, and supervisors will familiarize themselves with this instruction. Commanders of education, training, and recruiting units will ensure all personnel … are briefed on the relevant provisions of this instruction upon their arrival, and at least annually thereafter.”
This means AETC contemplated a need to inform everyone of updated obligations, which makes sense given their novelty.
According to official documents reviewed by JQP, Col. Brian Hastings, then commander of the 47th Flying Training Wing, fulfilled this requirement by briefing the new 36-2909 at a mass formation event on July 31st, 2014 — nearly eight months after it had been enacted. This was the first Laughlin’s assigned officers had heard of the new requirement to make grapevine chatter a matter of official concern.
The day after that briefing, several officers were called in for questioning in connection with a suspected unprofessional relationship involving a male instructor and female student, two officers who had dated before assuming the roles that made any further romance unlawful. In the course of the inquiry into their suspected relationship, text messages indicated to investigators that other instructors might have had knowledge of the suspected relationship and not reported it. Those other officers’ cellphones were seized and searched, and they were later punished based on awareness allegedly demonstrated by their text messages.
The conduct at issue took place before they were aware of a duty to report on rumors of impropriety, and in some cases the conduct pre-dated the actual effective date of AETCI 36-2909. The fact the officers hadn’t been trained on this new and unique requirement should have disqualified them from any punishment. While ignorance is generally not an excuse for failure to follow the law, such logic isn’t universal, and can’t be seen to apply in situations where a reasonable person wouldn’t contemplate a requirement to act in the absence of having been informed of an obligation. AETC knew this, which is why it included a training requirement. In retrospect, Hastings’ mass brief looks more like a ham-handed attempt to establish the foundation for a planned crackdown than a good faith attempt to create the right kind of climate.
Of course, there’s also a question of whether requiring airmen to relay rumors is lawful in the first place. Commanders in AETC are struggling to remedy a problem under the white-hot light of political scrutiny, and are trying whatever seems to make basic sense. But while expecting airmen to report wrongdoing is reasonable, demanding that they relay every rumor, even those that in their judgment are frivolous or unreliable or emanate from suspect sources, is absurd in several ways.
First, it sets up a requirement for airmen to look suspiciously on one another. It encourages the propagation of unreliable information. Together, these mandates stand to erode trust and upend good order and discipline, which is counter to the entire object and purpose of the UCMJ. That makes the lawfulness of this rule assailable.
But even worse, knowledge of such a rule stands to shut down constructive communication. No one will dare make idle chit-chat that might create a legal controversy, and no one will want to hear communication that might oblige an official report to the chain of command. The only individuals who will surface information that might professionally destroy teammates in such an environment are those with the objective of doing just that. In other words, this rule — in its actual and foreseeable application — incentivizes backstabbing and discord while discouraging the type of open communication required to discern and address actual disciplinary problems.
It’ll also result in airmen refusing to confide in one another when there has been an actual breach of the rules and they want trusted counsel on how to end an improper relationship and get back within the rules. This is inconsistent with every principle of wingmanship and resiliency the Air Force claims to cherish, and removes any incentive for rule violators to self-redeem after they’ve made a mistake.
Of course, there’s also the problem of how anyone accused of violating the reporting requirement can raise a defense. Anyone testifying on behalf of the accused would require inside knowledge to offer anything probative, meaning they’d also be incriminating themselves. This makes the charge practically indefensible, and thus legally problematic from a due process standpoint.
Interestingly, AETCI 36-2909 was certified lawful by Col. Polly Kenny, the senior judge advocate in AETC. Col. Kenny was later responsible for advising AETC commander Gen. Robin Rand as he considered appeals from the officers punished under the reporting rule. This is incredible. Asking a lawyer to pass on the legality of a rule she herself certified is a fundamental conflict of interest. Appellants challenging the rule’s application can’t expect a fair review on the merits under these circumstances.
But even if Kenny created a rule that was strictly legal, it has to be one of the single dumbest ideas in modern military history. If your enforcement mechanism requires airmen to not just relay gossip like maids at a market, but to debase themselves and their teams by reporting every stray vagary overheard at the water cooler to the chain of command, then you don’t have much of a rule. This should have occurred to everyone involved before the rule was published. The fact it didn’t is just the latest evidence that the Air Force is incapable of effectively administering its own justice system.
But again, putting aside the sheer misguidedness of the rule and whether it is legal on its own legs, the fact remains that it was enforced against officers who were unaware of its existence and had no reason to suspect the obligation arising from it. That makes their punishments extralegal, and should necessitate the prompt withdrawal of those punishments along with an investigation into the commanders and lawyers who carried out such a questionable process.
★ ★ ★ ★ ★
This is the part where some of you are wondering why an otherwise upstanding group of leaders and their legal advisors would knowingly violate the fundamentals of due process.
The answer isn’t supernatural: they had a problem to solve, were under pressure to solve it, and were preconditioned to process information in light of the existence of the problem. With authority in their hands, they set a determined course to the solution, and to the extent they noticed legal limitations on that authority, swiftly pushed through those limitations to the objective.
This is what commanders do, and they’re only constrained by the braking action of their own judgment and that of their advisors, who might not have the moral courage to speak truth to power in full bloom. The Air Force’s developmental processes have placed little premium on either judgment or moral courage over the last generation, and we’re now seeing the effects.
It’s getting to be a repetitive and tiresome Air Force story. We haven’t conditioned our commanders to believe they’re at all limited in their discretion to punish and destroy subordinates. We haven’t hired and trained legal advisors to illuminate the terrain of due process and keep commanders within the permissible lines.
But at the end of the day, these are interesting descriptive theories leading to rationalizations that can’t be tolerated. Punishing someone who lacked the intent to commit an offense (which requires knowledge that an offense exists) is a basic violation of elemental due process. In addition to the lamentations already expressed, there are at least two additional reasons to detest this outcome.
First, allowing it to stand is an embrace of utilitarian doctrines that obliterate individual rights for the sake of “what’s best for the institution.” If we could prove, for instance, that randomly selecting and publicly executing one American at random every 30 days would reduce violent crime by 50%, would we do it? Of course not, because in our system, means are more important than the ends. We cherish and safeguard individual rights, recognizing that they’re our only reliable resistance to government authority.
This situation is qualitatively no different, except that Air Force commanders have made an un-American choice. Someone decided Laughlin had a “culture problem” and predetermined who the “problem children” were before obeying the dictates of appropriate evidentiary and legal processes. The logic that setting aside the rights of these officers is an acceptable price to pay to prevent anything — even (gasp) sexual impropriety — is hateful to everything we’re about.
As a footnote, the really scary thing about utility is that if it works, it multiplies. If the generals choose the ends over the means in this case, they’re green-lighting more individual abuse “for the sake of the institution.”
Second, this sets a disastrous example. When those charged with enforcing the law disregard it, the success of their lawlessness gets noticed. People quickly recognize that the law is simply a free-floating device for agenda pursuit rather than a deliberate process and series of guarantees in careful balance. They recognize power and not law is in control.
This breeds contempt for the law and encourages a power orientation, which quickly collapses the system, creating incentives to show loyalty to power … incentives that easily outweigh incentives to follow the rules to the occasional frustration of power. It’s not long in such a collapsing system before the law is regarded as a laughable fiction, and people give up on it altogether. This is a decent, if partial, description of what happened to the US Army in the late 1960s and early 1970s, when it morally hollowed and nearly collapsed. The Air Force is on a frightening trajectory when this comparison can be so comfortably made.
The legitimacy of a body of rules is more important than any individual rule, and that legitimacy is determined by the means and faithfulness of enforcement. AETC continues to do grave damage to the Air Force’s legal system by acting extralegally and eschewing good faith in favor of securing its immediate objectives. At this point, Air Force leaders at the very top are aware of these abuses. Each day that goes by without them intervening deepens the damage.
It seems increasingly clear that those charged with cleaning up the mess at Laughlin, from the top of the chain of command down to the base level, did not execute their duty fully or in good faith. The only way to heal the damage they’ve inflicted is for the same Air Force to admit there were errors, come clean, and make good faith efforts at restoring what has been wrongly broken.
The rest is just a cautionary tale about poorly conceived rules in the hands of poorly trained arbiters. It may well be part of the eulogy to the military justice system someday soon unless there is a rapid and good faith effort at reform.
As Adam Kinzinger and Duncan Hunter — thus far the only two figures of consequence to show genuine interest in the plight of the hunted at Laughlin — await their answers from Big Blue, perhaps they should add a few more questions about AETCI 36-2909.