Anatomy of a Whitewash


A few days ago, Air Force Times published an article covering the Air Force’s release of an Inspector General (IG) inquiry into disciplinary actions taken against pilots at Laughlin Air Force Base over the past two years.

For the sake of economy, I won’t recount the underlying story or summarize previous articles dealing with the inquiry or its aftermath. Those pieces are available elsewhere on JQP, and I’m guessing that if you’re reading this, you’re likely already somewhat if not substantially conversant with the story. In this article, my intent is to focus on a particular process important to the US Air Force (USAF), its institutional health, and our nation’s defense.

The Times piece coincided with Chief of Staff Gen. Mark Welsh meeting with two Congressmen whose demands gave rise to the IG review. Air Force publicists sent the Times a copy of the IG report – which had not yet been given to the Congressmen or the pilots involved – presumably supplementing it with service-friendly insights and views on the conduct and meaning of the investigation. The result was an article that didn’t analyze the IG report but selectively extracted and showcased provocative details that seemed to support the Air Force’s public narrative that it was dealing with “bad guys” and had essentially done everything correctly.

This portrayal was a disservice, in my humble opinion, to Times’ readers craving hard reporting about the USAF, to the individuals involved on all sides of this story, and to stakeholders of an Air Force that can’t operate effectively without a healthy IG process — one noticeably ailing at the moment and in dire need of the pursuit and exposure of important truths about its functioning.

The Times article – which has since been updated with quotes from Rep. Duncan Hunter’s chief of staff, Mr. Joseph Kasper — focused initially on text messages sent between the pilots that commanders wrongly relied upon to punish them for drug use.

But this isn’t the story. The Air Force has since admitted that the drug charges were unsubstantiated, and tacitly acknowledged that the commanders who initially reviewed them were misguided if not overzealous in believing otherwise.

The story is the IG inquiry itself.

Here’s what Welsh ordered the IG to do, the operative clause highlighted:

IG Tasking Order

Notwithstanding the annoying use of passive voice and hollow jargon to immediately water down the perceptual significance of commanders in this inquiry, they and their lawyers are its core subjects. This is about whether commanders properly exercised legal power when punishing other citizens under the color of federal government authority.

How the inquiry went about that task – and didn’t – will have a lot to say about the Air Force’s institutional health, ability to police itself, and ultimately whether it should tend its own justice system or surrender to an intensifying reform movement. I will attempt to provide additional insight into how the inquiry was performed and what we can actually conclude from the form and content of the report.

This analysis is biased, and I advertise that openly. I’ve long ago concluded the IG process, as currently fielded by the USAF, is not performing as an inspection agency … but as a lapdog and occasional guard dog for the chain of command.

In a sense, this is not a surprise. While the IG has the task of investigating and inspecting the USAF, it’s not an independent agency. It works for the service and its leaders, and is therefore duty bound to serve the interests of the institution.

In another sense, it’s a morally and ethically shocking realization. Constant reinforcement of the premise that the IG acts as a “watchdog” is an ornate and damaging lie gnawing at the fabric of the service. Airmen feel understandably betrayed to learn that the real task of the IG is not to help them when the system has failed … but to protect the service’s image and swerve any remedial effect for the disempowered … even when evidence clearly demonstrates commanders have abused their authority.

Which brings us to the Laughlin inquiry, such as it is.

Here are ten things I’d like you to notice as you read Part 1 and Part 2. This isn’t an all-inclusive critique — just the highlights.

1. The witness list. The only people interviewed as witnesses by the IG were the very commanders and lawyers whose actions are supposedly under review. None of the complainants are interviewed. No legal experts or objective analysts. Not even the agents from the Air Force Office of Special Investigations (OSI) who did the investigations. Not their bosses. Not the magistrate who issued the search warrants supposedly being reviewed. Not a solitary witness from outside the original circle of decision makers. Most glaringly, not even Gen. Robin Rand, who we’re told in the report directed the investigations in the first place.

This reveals that we’re not witnessing a process genuinely concerned with finding facts or conducting an authentic analysis of due process. It looks more like an effort to give everyone involved a chance – a heavily telegraphed chance – to offer rationales that fit within the policy and legal guidelines permitted, sealing themselves and the Air Force against criticism. This skips the most important question: is criticism warranted?

Over and over, the Investigating Officer (IO) simply opens the mic and allows those supposedly being investigated to go on at great length about their inner feelings. We don’t see any follow-ups, push-back, or testing questions from the supposed investigator, and he accepts as factual everything he’s told by the witnesses.

2. OSI over-involvement. Gen. Rand directed OSI, the Air Force’s equivalent of a major case unit, to perform additional investigation at Laughlin because he suspected an unprofessional relationship (UPR) of a sexual nature involving a student and instructor. This was the correct initial referral under Air Force Instruction 71-101, which establishes jurisdictional boundaries for the service’s investigative organizations. However, as the investigation broadened, new leads emerged that made commanders suspect simple drug use and failures to report UPRs. These new cases are inappropriate for OSI, and should have been delegated into standard law enforcement channels. They weren’t.

This matters because OSI is accustomed to investigating serious felonies such as rape, child abuse, and murder. Assigning investigators to small-time offenses is a recipe for investigative overkill. It’s like swatting a fly with a jackhammer, and absurdities are bound to result.

The IG should have noticed and inquired as to why OSI was chosen as the tool to investigate cases not in its jurisdictional lane. No such questions were asked. Of course, even had they been posed, the person most appropriate to answer them would have been Gen. Rand, who was permitted to absent himself from the inquiry.

3. Gen. Welsh’s involvement. On page 26, we’re told that that Chief of Staff (CSAF) permanently revoked some members’ aeronautical orders. On page 77, we hear from Maj. Gen. Mike Keltz, former commander of the 19th Air Force, that lawyers from the senior-most levels of the Air Force were involved in consultations about how to dispose of the Laughlin cases.

Upon hearing these revelations of CSAF involvement, the Air Force IG should have recused itself from the investigation. It’s neither ethical nor acceptable for CSAF to dispatch his own IG to investigate his own decisions. That fundamental conflict of interest is fatal to the credibility of the entire inquiry. The fact that the IG didn’t raise an eyebrow about it underscores the ineptitude of the process.

It’s also noteworthy that the IG didn’t explore whether there might have been unlawful command influence over disposition of the cases, a fair question given the involvement of CSAF and his lawyers as well as the origination of the entire matter by Gen. Rand.

4. Unchallenged nonsense from the Laughlin Staff Judge Advocate (SJA). Throughout the entire report, the IG treats us to lengthy testimonials from Maj. Toomer, the Laughlin prosecutor who counseled his commander, Col. Brian Hastings, on how to apply standards of evidence in arriving at disciplinary decisions. Repeatedly, Toomer says things that are obviously wrong. Yet the IG allows his statements to stand. Take this gem, excerpted from page 36:

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What he’s trying to say here is that Hastings was justified in offering an Article 15 to someone based predominantly on text message evidence even though commanders are only supposed to offer Article 15 punishment when they believe the evidence supports conviction at trial in the event the member refuses nonjudicial punishment.

But he’s wrong, and his own words prove it. In his first sentence, Toomer admits that the evidence was predominantly text messages. If your evidence is mostly inadmissible and your evidentiary standard is “beyond a reasonable doubt,” you have no reason to expect a conviction is possible. These were the circumstances in the case to which Toomer refers. He had no evidence supporting or corroborating that the text messages actually indicated drug use, and therefore no reason to expect they would be admissible in court.

Remember, text messages from private cellphones are hearsay, and thus generally inadmissible unless (a) other evidence supports their qualification for an exception, (b) they can be classified as “party admissions,” which again requires supporting evidence, or (c) the sender or receiver is willing to testify — in waiver of his Fifth Amendment right against self-incrimination — to the relevance and meaning of their content.

If Toomer’s prospective task was to prove every element of a drug offense beyond a reasonable doubt … and he couldn’t expect to get much use out of the near totality of his evidence because getting it into court would basically require the self-incriminating corroboration of the accused … then he clearly did not have a reasonable expectation of prevailing at trial. Therefore, an Article 15 offer under the circumstances would not have been appropriate.

Whether commanders were properly advised and made the right disciplinary decisions is the heart of the entire inquiry. Here the IG doesn’t even take notice of an obviously questionable judgment. This should have led to a bunch more probing questions.

5. Confusion about who, if anyone, was victimized. On page 69, Keltz interestingly admits that there are huge differences between pilot training and other training environments involving newly recruited teenaged airmen. He seems to struggle with how to distinguish the two in a meaningful way, but definitely gets that they are different.

But the rules he applied to punish the Laughlin officers pretend the environments are exactly the same. Consequently, there is a struggle to decide whether the women involved in these cases are feeble victims or willing participants in wrongdoing. Keltz and company ultimately determined them to be subjects, and they were punished accordingly (albeit much more lightly than their male counterparts).

So then … who was the victim? And if there was no victim, was there a crime? And if there was no crime, what was OSI doing investigating? Why was the investigation being managed by multiple multi-star generals and their lawyers? And if the conduct here isn’t a crime but merely something to be handled administratively, why were careers ended? Why were the pilots involved permanently grounded?

The IG should have asked these questions. Instead, the IG just took dictation.

6. How the IG ignored a huge red flag. On page 45, Hastings says something truly remarkable. Check it out:

Hastings Unsigned Remark

This should have sparked a number of questions from any reasonably competent IO. Such as … are you saying the officer submitted forgeries to you as part of a legal process? If you truly believed that, did you investigate further? Did you ask the officer if he submitted fraudulent letters and give him a chance to explain or remedy the issue? If a member of your staff told you he didn’t submit a letter, did you put him together with the other officer in a room and ask the two of them to hash out the difference? Why did you believe your staffer and disbelieve the other officer? If this officer was defrauding you with fake letters, do you believe his lawyer — who submitted the letters on his behalf — was complicit? If not, was he incompetent? In other cases, have character letters always had wet signatures?

Hastings’ comment doesn’t add up. Either he thought the letters were forged or he didn’t. If the former, he had a duty to pursue the matter. If the latter, he had a duty to honor the letters at face value.

There’s something else very wrong here. Hastings admitted to the IG that he confronted a member of his own staff, outside of the domain of legal proceedings, about that staff member’s willingness to support a subject of disciplinary action. This is totally inappropriate. Again, this entire inquiry is about whether commanders conducted legal proceedings appropriately, and this red flag falls very near to the core of the inquiry’s purpose. Given prior reports that Hastings and his fellow commanders admonished and downgraded the performance reports of those who supported wingmen facing discipline, this should have led to an entirely new spur of investigation.

But the IG didn’t pursue it.

7. How the IG ignored another huge red flag. Hastings reels off another unchallenged soliloquy on page 71:

Hastings Comment 2

The IG had a duty here to stop Hastings and ask him what the hell he was talking about. None of the claims he makes here are found anywhere in the evidence. There was never proof these individuals sought out drug venues, hung out with drug users, or resided with people engaged in drug activity. These were unfounded theories, not proven facts. Remember, the drug charges against the Molly Three have been dissolved by the Air Force … because there was insufficient evidence.

As for his lamentation about how these officers were talking to one another, he doesn’t seem to grasp that he’s reacting to private conversations that no one had any expectation would ever be reviewed by a commander. If you look at anyone’s private correspondence, you should expect to feel awkward about what you find … because it was never intended for your consumption.

The combination of references to non-established facts and the exhibition of a prejudicial attitude unwilling to wait for evidentiary conclusions … these things should have made the IG curious enough to ask more questions about how Hastings processed the facts and claims before him.

But the IG simply took notes.

8. Massively inappropriate legal judgments. Throughout the report, Maj. Toomer uses the term “admit” or “admission” when referring to drug references in private text messages. He classifies these private messages as proof of culpability. The IG accepts this without pushing back.

Toomer knows, presumably, that he’s engaging in an egregious series of misrepresentations here, preying upon the ineptitude or willful ignorance of the IG. The contents of private text messages are hearsay. They cannot be offered in court to prove the truth of the matter asserted. They are non-testimonial, and therefore cannot be considered admissions without other evidence supporting such an inference.

The reason our court system bars hearsay as a general rule (though there are many exceptions) is that hearsay isn’t reliable. We can’t know what was meant by a comment uttered (or texted) without having experienced it in context, which is why witnesses able to explain what they saw/heard/experienced are important to establishing whether something is relevant evidence or irrelevant banter. If someone sends an email or a text that says “momma, just killed a man,” or “we’ve been dancing with Mr. Brownstone,” the statements might indicate homicide and heroin use … or they might not. Until other evidence establishes context, we can’t rightly form an inference of culpability. In our system, that means the presumption of innocence prevails.

This basic principle is directly contradicted by Toomer’s use of the characterization “admitted” or “admission” to describe what he saw in the private communications of others. At the same time, he “admits” that the texts would not be admissible in court without corroboration, which is another way of saying they prove nothing in and of themselves. If they prove nothing, then they can’t be part of the evidence meeting the preponderance standard necessary for a Letter of Reprimand (LOR), which means LORs based on texts alone were not appropriate. The IG should have pounced on this, but instead merely nodded in approval, legitimizing lawless conduct under the color of federal authority.

Toomer refers at other times to “very good evidence” of drug use. This is laughable. Remember, there was no home search, no car search, no corroboration, no eyewitness testimony, no proposed timeline or claimed venue where drugs were allegedly consumed, and no physical evidence with respect to the Molly Three. The “very good evidence” to which Toomer refers is not evidence at all. It’s hearsay coupled with prejudicial supposition. He saves his lowest moment for page 53, where he displays a breathtaking lack of basic knowledge:

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The answers, of course, are “yes,” … “yes” … and “yes” … (perhaps followed by “shut up”). Yes, a written confession is different from a private text message. The former is evidence, the latter is not. Yes, that would change the nature of the evidence, because it would actually make the words a testimonial rather than a private, abstract utterance lacking independent evidentiary meaning. Yes, it might matter if another person reported the words of the subject, provided their inputs were relevant and they did so under oath. Such testimony might provide support for inferences that could qualify the out of court statements as evidence. But those weren’t the circumstances with the Molly Three.

The Laughlin SJA’s words prove much more than he intended. The IG should have zeroed in, but didn’t.

9. Brazenly pre-formed conclusions. At the top of page 81, there is a fascinating paragraph. The IG is trying to say here that proper deliberations were had and that proper standards of evidence were met. But to support these conclusions, the IG cites “witness testimony,” unintentionally stating an axiom. Remember, the only witnesses interviewed would have essentially had to self-incriminate to stipulate otherwise. So of course witness testimony supports the conclusion that everything was done correctly.

This is a classic and obvious whitewash tactic. Ask the foxes if they raided the henhouse, and then accept their denials … as they cough feathers through their blood-stained teeth.

The IG doesn’t even make a pretense out of asking whether the deliberations arrived at the right results, or whether the standard of evidence was adequately understood by those applying it. It simply accepts the word of the self-interested witnesses it gave an open mic, delivering the result coveted by the chain of command wrapped nicely in quasi-legalistic terminology lending a false air of professionalism.

By this method, the IG legitimizes how those involved did their jobs … rather than looking for what might have gone wrong. Never look for what you don’t want to find, right?

10. The Constitutional violation. In the middle of page 80, the IG stipulates to an account of events that clearly points out a violation of an individual’s Fifth Amendment right against self-incrimination. The government is authorized to seize someone’s cellphone provided a properly founded warrant is issued. In this case, the warrants issued probably shouldn’t have been, but they met technical legal requirements. What the government cannot do is order someone to surrender his passcode, which is akin to self-incrimination. What they find on a phone with their own techniques is evidence. Forcing someone to grant access is essentially coercing him to self-incriminate.

For this to have ripened into a violation of rights, the government would have needed to take the individual to court, where the appropriate objections and motions would need to have been made and overruled. But the very fact that the IG doesn’t acknowledge the potential violation — and to the extent it stipulates there might have been one, chooses to set it aside to be resolved beyond the scope of this inquiry — is unacceptable. This is arguably the most important question the inquiry should have resolved, and it chose instead to punt on third down.

This is the absolutely appropriate venue to pull apart constitutionally problematic conduct by investigators, commanders, and lawyers. This IG didn’t even interview the investigators, excused the most senior commanders, and accepted the explanations of commanders and lawyers without testing their answers.

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The pretense of this inquiry – and the way Welsh represented it to Congress – was that the IG would earnestly evaluate what happened and give the USAF a chance to make whole anyone damaged by command or investigative overreach.

What ended up happening was the IG interviewed those who were supposed be getting investigated, gave them an unchallenged opportunity to explain themselves, and then accepted their explanations.

This doesn’t reflect a genuine attempt to locate and correct problems with the chain of command. It’s just CYA. The conclusions are not connected to the evidence. Problems are actively ignored. Red flags too. Questionable legal conclusions are taken at face value. Obvious commander bias is accepted without question. It is said many times that everyone received due process, but due process is never defined … and in fact the Constitutional provisions potentially at issue are mentioned only to declare that they’re somehow irrelevant.

Throughout our national history, the Supreme Court has had to occasionally take an active role in regulating state criminal courts through the process of judicial review. When this has become necessary, it’s been a doctrinal response to the misappropriation of the law as a means of legitimizing wide-scale violations of basic rights. Violations committed under the color of government authority are much more dangerous and insidious than those committed by the obviously lawless … because they lend the imprimatur of government power to unlawful conduct. The use of the law as a free-floating tool for the selective destruction of those arbitrarily or unfairly singled out by the empowered is an ever-present danger wherever legal authority is wielded. This is why watchdogs are needed, and why the failure of watchdogs is both a signal and a cause of crippling institutional corruption.

Before all is said and done, either Congress or the courts will find themselves regulating the Air Force’s use of government authority to legitimize corrupt practices. Hopefully, that regulation will arrive before the service corrodes itself beyond repair, hurting the entire nation when it collapses under the weight of its own moral baggage.

This report represents the failure of the current leadership team to wrestle with an obvious ethical crisis in the ranks. More distressingly, it represents an effort to conceal that such a crisis exists.

Don’t take my word for it. Unlike the USAF and its IG, I want you to be appropriately skeptical. Do your own homework, with eyes open, and judge for yourself. Are we on a healthy trajectory?

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