West Texas Salem: Civil Liberties Trampled in Abusive Criminal Probe of Airmen

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This article continues to expose disturbing allegations of senior officer misconduct at Laughlin Air Force Base first chronicled in the August 26th column “Witch Hunt in the Desert.” An investigation into unprofessional relationships at Laughlin came loose from its moorings, morphing into an unbounded drug abuse inquiry that destroyed the lives of several Air Force officers without a shred of credible evidence of wrongdoing. The story continues with the revelation that tactics employed in the inquiry obliterated basic Constitutional protections. Thus far, the Secretary of the Air Force has refused to comment on this case despite several media inquiries, much less get involved. Unless that changes, Congress should call senior Air Force officials to Capitol Hill for hearings to explain what happened, who is accountable, and what is being done to guarantee this never happens again. If the Air Force is allowed to become a carve-out from American society where civil liberties don’t apply, the nation cannot expect a viable defense.

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For lovers of irony, the current iteration of the Air Force is a smorgasbord. This past week, while leaders were busily foisting upon the service’s most junior members a preachy compendium reinforcing the importance of professional oaths, those same officials were actively ignoring violations of those oaths by senior commanders. After the publication of an article here last week detailing alarming compromises of due process in the hunting of several Laughlin officers for suspected drug use, senior officials declined to comment in response to media inquiries. This is an extension of the unaccountable conduct exhibited by the senior officers they’re now protecting with official silence.

Since the publication of last week’s article, JQP has obtained new information and additional documents demonstrating that not only did senior Air Education and Training Command (AETC) officers besmirch notions of fairness and ethics in its dogged pursuit of several officers on suspicion of drug use derived solely from wayward text messages, those officials also trampled on basic Constitutional guarantees, and did so seemingly without sensing the seriousness of their violations. This conduct goes beyond mere objectionability and into the realm of lawlessness. 

In one case, an officer was given an expansive no-contact order after being initially informed that he was under investigation. He was instructed that he was to talk to no one, and inferred the order to be a total bar to discussion of his case. Such an order violates an accused member’s right to mount a defense, to seek counseling, to obtain legal representation, and to confide about the issue with family and trusted friends who provide a vital support network at such a pivotal moment of personal crisis.

But beyond that, such an order constitutes unlawful restriction. Air Force members are entitled to speak with legislative representatives for any reason, at any time. This is a guarantee codified in Title 10, Section 1034 of the U.S. Code, which is one of the legislature’s chosen means of guaranteeing fundamental First Amendment political expression for military members.

Under some circumstances, speech rights can be lawfully constrained during criminal proceedings. Officials can always act to protect classified information. Judges can hear motions and issue gag orders to preserve the viability of prosecutions and prevent the biasing of jurors. Additionally, accused members who commiserate with other suspects or potential witnesses can be held in violation of criminal prohibitions on witness tampering, obstruction of justice, and conspiracy. In cases where these concerns exist, orders can be given, but their lawful coverage can extend no further than legitimate concern they address. They’re not unlimited.

In this case, a senior officer believed he had unlimited authority to silence and isolate an accused subordinate. In acting on that power-drunk belief, the senior officer infringed on his subordinate’s fundamental speech rights. When the accused officer broke the illegal order to confide in someone, he was officially admonished, compounding the infringement.

In another gross violation, one of the officers accused of drug use had his ability to purchase a firearm indefinitely suspended.  Three months after the conclusion of the investigation into his alleged drug use — an investigation which did not even lead to a criminal charge, much less a conviction — he tried to purchase a weapon for a camping trip. His name was flagged in the National Instant Criminal Background Check System (NICS), preventing the firearm dealer from selling him a weapon. The existence of this database entry represents several egregious violations of professional standards by investigators, commanders, and legal advisors associated with this case.

Title 18 of the U.S. Code, Section 922, establishes the following reasons dealers must deny a firearms sale to a proposed buyer based on a NICS entry:

Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year

Is a fugitive from justice

Is an unlawful user of or addicted to any controlled substance

Has been adjudicated as a mental defective or committed to a mental institution

Is an alien illegally or unlawfully in the United States or who has been admitted to the United States under a non-immigrant visa

Has been discharged from the Armed Forces under dishonorable conditions

Having been a citizen of the United States, has renounced U.S. citizenship

Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner

Has been convicted in any court of a misdemeanor crime of domestic violence

Is under indictment for a crime punishable by imprisonment for a term exceeding one year

None of these descriptors applied to any of the accused Laughlin officers, including the member denied the right to purchase a firearm. It’s clear that law enforcement officials made a NICS entry based on their suspicion that the officer was “an unlawful user of … any controlled substance.” This assumes a legal conclusion never reached. Title 21 of the U.S. Code, Section 802 contains the legal definitions used to apply the Section 922 NICS limitations to gun sales. Ironically, it doesn’t define the term “user” per se, which means the ordinary dictionary definition applies. That definition reads as follows:

“a person who uses something.”

While this may seem innocuous, it’s important because it is rendered in the present tense, meaning Section 922’s prohibitions only apply to those actively using (or known to be addicted to) illegal substances. Thus, even if AETC’s law enforcement apparatus believed it had reasonable suspicion that an officer had used drugs at some point in the past, it would still lack the legal footing, without proving ongoing use, to impose a NICS entry classifying that officer as a drug user. In this case, not even historical use was supported by any credible evidence, which makes the NICS entry outrageous.

This is a long way of saying that what happened here is a breach of the law by the government in the hunting of one of its own citizens. Statutory limitations extend only as far as their language permits, and cannot be casually accepted as open doors to misappropriation and mischief making.  This is clear government infringement of the Second Amendment right of someone entitled to purchase and own a firearm. It’s also misconduct by whoever made the entry, whoever sponsored and approved it, and whoever failed to remove it or deliberately left it in-place.

This is the exact species of government infringement that gives gun rights advocates reasonable grounds for concern with respect to a regime of expanded background checks. Thus, there is a strong interest for advocates in all policy camps in preventing this kind of abuse. That it would happen in the first place is a shameful violation of the public trust, and a breach of professional standards that should be disciplined. 

Worst of all, the individual unfairly restricted in this instance is still barred to this day from purchasing a firearm, despite having made investigators and the chain of command aware of the problem. The Air Force clearly does not see a duty to abide by Constitutional limits, and that should have every lawmaker in every district in the country concerned about the state of national defense.

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But wait, there’s more.

Officers in this case came under suspicion because of text messages recovered from a cellphone examined as part of a different investigation. On the basis of those texts, investigators sought and secured warrants to search the phones of a group of additional officers. An example:

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There are a number of problems with this warrant. First, search warrants are founded on the reasonable belief that a crime has been committed — in this case, the unlawful use of drugs. While text messages emanating from phone that seem to indicate drug use might provide sufficient grounds, investigators have a duty to contextualize and weigh evidence before making a determination (hence, the term “reasonable”). Given the absence of prior criminal histories among these officers, the plausibility of the explanations they offered for their text messages, and the absence of any fact making criminality more plausible than those explanations, it’s fair to question the legal sufficiency of the foundation for these warrants. It’s also fair to question the circularity of using a text message as the grounds for reasonable suspicion to search and seize that same text message.

Then again, investigators obviously hoped to find more than they’d already found, and this gestures toward another problem. The warrants were overbroad. By providing only that the searching be related to illegal drug use — which is only knowable by first doing the searching — the military magistrate in this case licensed investigators to perform an unlimited cellphone search. This gave them access to information totally unrelated to the drug inquiry, violating the officers’ Fourth Amendment right to be free from unreasonable searches and seizures. The searches should have been limited to text messages alone. If those messages bore out the suspicions upon which the warrants found their unsteady footing, additional warrant requests could have been more confidently lodged for widened searches.

But even with this sample warrant’s overbreadth, one critical item was omitted from the permission the magistrate granted: the password required to access the phone in the first place. In the case of at least one officer, this would lead to more violations.

Sensing he was under no obligation to surrender his password, one officer initially refused to provide it when agents presented the warrant and demanded his cooperation in accessing his phone. The officer requested legal representation at that point. Undaunted by such pesky issues, the agents surmounted his resistance through simple coercion, telling him he couldn’t leave the interview without surrendering his password and giving him the impression that the chain of command they represented was giving him a lawful order that he must follow. Eventually, the officer’s resistance crumbled and he gave agents the access they wanted.

There are a couple of problems here. First, courts have sometimes found, though not universally or without caveat, that forcing a defendant to surrender a password to an electronic device constitutes forced testimonial communication against the defendant’s self-interest. In other words, it can be forcing someone to self-incriminate, implicating Fifth Amendment protections to the contrary. This doctrine generally doesn’t apply when agents already have knowledge of what they will find (usually because they already have a confession from the same defendant), but to the extent what they find exceeds what they already understood to exist on the device before the search, coercing a password out of a defendant seems problematic to say the least. Given the circumstances here, it seems unlikely anyone gave it a passing thought.

But more distressingly, this accused member’s due process was fundamentally abridged by denial of his right to counsel. While not under arrest, he was not free to leave. Investigators squeezed him with the impression they had military authority to which he was especially subject and made his conclusion of the interview contingent on assisting them. This means he made the password confession in a custodial setting and was therefore entitled to the representation he was denied. This jeopardizes any evidence recovered as a result.

The government likely recognized these many problems, which partially (along with the total lack of support among the “evidence” recovered) explains why officers accused of drug abuse were not taken to court. Instead, formal legal proceedings were dropped and their careers were destroyed using administrative actions.

Which brings us to the Sixth Amendment. The entire sordid episode at Laughlin can be understood as an end-run by officials to avoid affording accused members basic due process protections. Reprimands and counseling letters provide functional equivalency of court-imposed punishments, but defendants cannot resist these actions, have no guarantees or protections against them, and have no meaningful appeal opportunity … despite the fact these actions have the same lasting consequences as a conviction.

In this case, we have an allegation of serious conduct. Drug abuse by an officer, especially an instructor pilot, is cause for official alarm (or would be in a case where it actually occurred). Addressing conduct this severe with administrative penalties is bizarre, and a clear signal that the chain of command couldn’t prove the allegations in court. 

At some point, the chain of command knew it couldn’t prove the charges. When the absence of sufficient proof was noticed, it should have led to dropping the issue altogether, affirming the fundamental requirement of justice that defendants be proven guilty before they endure punishment at the hand of government. Instead, commanders in this case found a way to punish without verifying criminality ever happened. They simply declared their bare suspicions factual and wrote them into reprimands … never mind that their power doesn’t go nearly that far — or more accurately, shouldn’t.

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When this type of legal hurdle-jumping is permitted, due process isn’t so much compromised as skipped altogether. The defendant suffers the same consequences as a conviction – to include, in this case, social condemnation, loss of ability to legally own a firearm, unlawful detention, and total invasion of privacy – on the basis of nothing more than rootless suspicion of wrongdoing.

What makes this case all the more grotesque is the failure of commanders to genuinely explore the character of those they reflexively vilified. These are officers with track records of moral and ethical uprightness. They’ve volunteered to serve their country during a time of war and upheld their oaths with unquestionable commitment. They’ve performed superbly. One officer had more than 100 character references provided on his behalf. At the end of the day, it’s unlikely commanders even considered those letters or investigated their merit, because the course of events had already been determined. Interestingly, none of the involved officers had their security clearances suspended, a clear signal that their commanders didn’t consider them untrustworthy, and perhaps, therefore, never seriously considered them drug abusers.

So, why are they being destroyed? Because the chain of command can’t be wrong. Having wagered its credibility in an initial gambit to hound these officers, it can’t admit having made a mistake without losing that credibility. This is always seen as unacceptable because it costs generals their stars, disturbs cherished narratives about being tough on misconduct, and tarnishes a justice process that is already in jeopardy of wholesale reform. Leaders always do what is right. Bureaucrats always do what serves the interests of the bureaucracy. Unfortunately for these officers and the country they serve, today’s Air Force has far more bureaucrats than leaders.

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When the First, Second, Fourth, Fifth, and Sixth Amendment rights of citizens are carelessly trampled just so generals and their bureaucracy can save face, we have cause for grave concern that a key federal agency is increasingly co-opted by fascism. This is disturbing. It is lawless. It is un-American.

And yet, it goes unaddressed while the service’s anointed leaders endlessly congratulate themselves on a taxpayer-funded traveling eyewash carnival, their trivial exploits transformed into chuckle-worthy propaganda that, despite it unintentionally comedic quality, provides a perceptual shield obscuring dark truths about the health and trajectory of the American Air Force. The longer other leaders, legislators, and citizens allow this sickness to persist, the more it will hollow the service, eventually collapsing it under the weight of moral and material obligations it can no longer sustain.

In other words, brace yourself. The winter of American airpower is coming.

This is just the beginning of the story of what’s been happening in West Texas Salem. Stay tuned.

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