Over the last few years, I’ve observed that the Air Force is not ingraining its officers with adequate legal expertise before placing them into senior command roles where they operate the military justice system. Too often, senior commanders are short-circuiting basic fairness and due process with undue influence, reprisal, unjustified relief from command, and abuses of investigative and administrative authority.
My concern, consistently voiced, is that this both reflects and feeds deeper cultural ills bespeaking an unacceptably dark future for national defense unless remedies are applied. An Air Force riddled with abuses of power cannot, I contend, adequately defend American interests, and will eventually suffer internal moral corrosion to the point of collapse.
It’s a concern increasingly echoed by others on the national stage. Sen. Kelly Ayotte (R-NH) rightly chastised the service after one of its generals used intimidation tactics to restrict communication between airmen and Congress. Sen. Mark Warner (D-VA) has been pushing the service to explain why it professionally destroyed Capt. Josh Wilson after he spoke out about the F-22’s then malfunctioning and dangerous oxygen system. Sen. Kirsten Gillibrand (D-NY) believes the Air Force and its sister services have shown themselves incapable of effectively addressing sexual violence in the ranks, an argument bolstered by a recent ruling that the Air Force’s top lawyer improperly influenced a sexual assault prosecution. Gillibrand is pushing for an overhaul of the military justice system, and is supported in that effort by retired Col. Don Christensen, formerly the Air Force’s chief prosecutor and now a vocal critic and activist working toward system-wide reform.
Recent events at Laughlin Air Force Base, a pilot training facility situated in the West Texas desert, are cause for grave concern that the Air Force is continuing to descend into lawlessness, substituting unmoored power for constrained authority responsibly chained down by reason and fair process. Documents obtained by JQP and backed up by sources speaking on the condition of anonymity show a pattern of investigative overreach, administrative abuse, and career-crushing sanctions insufficiently supported by evidence, with several officers’ lives upended on the basis of innuendo alone.
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The trouble began early last year, when a male Laughlin instructor pilot came under suspicion of having an inappropriate sexual relationship with a female student pilot. Such relationships violate prohibitions designed to prevent abuse and maintain good order and discipline. Officials, understandably concerned about the potential for student abuse and living under the shadow still cast by a 2011 trainee abuse scandal at Lackland Air Force Base, asked the Air Force Office of Special Investigations (OSI) to look into the matter.
As investigators dug in, they found a broader pattern of misconduct that would eventually implicate roughly a dozen officers in forbidden relationships. Base officials, understandably alarmed by the pervasiveness of what investigators discovered, perceived a deeper cultural issue in need of uprooting. Thus, in addition to pursuing criminal charges against eleven officers for inappropriate relationships, officials broadened the probe to examine not just whether a given officer committed a criminal act, but whether others knew about it and failed to intervene. The formal foundation for this broadening was a legally shaky but nonetheless codified 2013 revision to Air Force Instruction 36-2909 requiring individuals to report suspected unprofessional relationships.
This lurch toward collective responsibility, seen as a necessary and natural extension of an effort to rehabilitate obviously deep-set discipline issues, began a twisting of the original investigation into what would become a warped witch-hunt. What began as a noble enterprise would end up injuring the Air Force in more ways than one.
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The focus of the broadened Laughlin probe was a suspected inappropriate party culture among instructor pilots – in particular, First Assignment Instructor Pilots (FAIPs).
For the uninitiated, FAIPs are newly winged pilots who return immediately to the training environment for an initial flying assignment as an “IP,” or Instructor Pilot. The tradition of the FAIP is as old as the Air Force itself, with FAIPs generally comprising the tightly focused core of flying training squadrons. They are intensely proficient, doing the lion’s share of the daily instructing while older IPs with more non-flying responsibilities handle administrative tasks. General Mark Welsh, the Air Force’s current Chief of Staff, began his career as a FAIP and is known to reflect fondly on the richness of the experience.
FAIPs tend to become a tight-knit group, and have long been known by the proudly proclaimed handle “FAIP Mafia.” But they’ve also earned a reputation for playing as hard as they work, to the oft-harbored anxiety of commanders who understand the heightened danger of inappropriate familiarity given the proximity and overlap in age, interests, and associations between FAIPs and their near-peer students.
Apparently in response to what he was learning from the unfolding fraternization inquiry, Laughlin’s then wing commander, Col. Brian Hastings, issued a series of directives in late July of 2014 targeting Laughlin’s FAIP population. His order banned the serving of shots of liquor in base clubs, imposed an alcohol curfew on base, and banned “FAIP Mafia” patches, symbols, and memorabilia. Observers (including me) sharply criticized Hastings’ policy as a glaring example of draconian command overreach in response to misconduct by a few bad apples. But, as it turns out, this was only part of the story, and not even the most egregious part.
As the OSI investigation into sexual misconduct widened to examine whether bystanders failed to intervene, agents began seizing and examining the cellphones of those under suspicion. It is not clear how many such phones were seized, or whether the seizures were voluntary. In any case, as agents began surveying phone contents, they saw new avenues for investigative inquiry, and the hunt once again broadened. This would prove dimly and irrevocably fateful for a number of Laughlin officers.
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On the basis of text messages recovered from the phone of an officer under suspicion of sexual misconduct, agents began to suspect some Laughlin pilots of a different offense: drug use. Banter exchanged between and among the cellphones of several pilots seemed to make reference to the use of the rave drug “Ecstasy,” calling it by slang names often found in music lyrics and other pop culture references. As agents reconstructed the winding trail of banter, they eventually isolated a group of four officers, labeling them suspected drug abusers and referring their suspected conduct to commanders for official action. If the reader is either alarmed or amazed at this point by the idea that private text messages from a private phone, standing alone, could become the basis of a criminal referral for drug use, the reader is not alone.
The context within which this chain of events formed is important. At the time the OSI inquiry was unfolding, Laughlin was also dealing with a drug scandal within its Operations Support Squadron. Several enlisted airmen were under investigation, with court processes pending. Likely eager to discern any criminal links between those airmen and the base’s officers, agents and the chain of command went after their new suspects with a vengeance.
On the basis of the wayward text messages, which read comically like direct lifts from a script of the HBO series “Entourage,” the officers were suspended from flying, placed on administrative hold, physically isolated from their squadrons, and given gag orders preventing them from interacting with teammates. This also hampered their ability to meaningfully raise a defense against any charges. While they sat idle, mostly ignored and neglected for months while awaiting their fates, the chain of command reviewed the evidentiary record and began disciplinary proceedings against all four.
Putting aside the legally thorny question of whether agents had enough reasonable suspicion to seize and examine the cellphones of four officers with otherwise spotless conduct records, the decision to move toward disciplinary action on the basis of the limited evidence available is legally problematic to say the least. All four officers voluntarily submitted to drug tests, with two of the four even providing hair samples. All four tests were clean. No other corroborating evidence or witness testimony showing actual drug use was found. No paraphernalia surfaced in any of the searches investigators conducted. The chain of command had not a stitch of proof beyond the inappropriate text messages seized from private cellphones, and these messages would likely be inadmissible in any court proceeding unless they could be wedged into a narrow exception to hearsay rules.
Lacking a firm basis in evidence, the government should have abandoned any charges at this point, perhaps giving the officers a scolding about the hazards of inappropriate text messages, and returned them to duty. That’s not what happened.
Instead, senior officials – whether at Laughlin or at higher levels is not clear – offered non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). Not for excessively flippant or inappropriate texting and not for private communication somehow judged counter to good order and discipline. The four were charged under Article 112a – Wrongful use, possession, etc., of controlled substances.
There is an issue of prosecutorial ethics lurking here. Commanders have a duty to refrain from offering Article 15 punishment in cases where the evidence would not support conviction in the event the accused turns down the offer and opts for a trial by court-martial. The absence of all but probably inadmissible evidence means conviction at court could not be reasonably expected, and this in turn should have nullified any contemplation of Article 15 punishment.
But beyond this, there is a basic rule of law seemingly ignored. Any time anyone accused of criminal misconduct offers an explanation for a given piece of evidence that, in the absence of additional evidence, is at least as plausible as the explanation that would indicate criminality, the resulting inference is to be resolved in favor of the accused.
That’s a fancy way of saying that for any given s/he said – s/he said accusation standing alone, an explanatory tie goes to the accused. This is a rule traceable to the overarching presumption of innocence afforded to all criminal defendants. It is baked into the foundation of American justice and is non-negotiable, even by empowered authoritarians perched atop massive military organizations.
In this case, each accused officer explained that references to “Molly” in text exchanges were made jokingly. Each provided examples of pop culture from which such jokes could reasonably be seen to arise. Each explained the circumstances within which the texts were made, elucidating how their meaning had been misunderstood without context.
This should have been the end of the road for a case based solely on text messages that could be reasonably explained away. But it wasn’t the end of the road.
Compounding questionable decisions to radically broaden an investigation, to seize and examine private communication on the basis of association, and to pursue disciplinary action armed with nothing more than baseless suspicion, senior officials next moved into the realm of power abuse to fulfill their adopted goals. Whatever honorable intent anyone possessed at the outset of the process was fatally compromised by what followed.
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In early 2015, after several months of investigation and harshly oppressive restrictions imposed upon Laughlin’s officers, senior officials at some level in the Air Education and Training Command (AETC) chain decided to press forward with an Article 15 offer against one of the four officers accused of Article 112a violations. The accused officer chose, as was his right, to publicly argue his case with the convening authority.
At that hearing in early February, the accused officer presented a strong, persuasive argument. He highlighted the lack of credible evidence against him. Seeing sense, the two-star general presiding over his hearing summarily threw out the charges against this officer, who has since been returned to flying status and progressed forward with his career. The remaining three officers accused of factually identical conduct based on the same body of evidence likely assumed their charges would be similarly dissolved. That would have been not only the fair and logical outcome, but the ethical and legally proper one. But if they expected such an outcome, they were mistaken.
Shrewdly calculating that the evidence against the remaining three was too weak to survive a genuine challenge, the Laughlin chain of command – undoubtedly on the advice of the wing’s judge advocate – opted to achieve the functional equivalent of an Article 15 by formally reprimanding the remaining officers. The involved commanders were able to do this because unlike an Article 15 or court-martial, an administrative Letter of Reprimand (LOR) can be issued on the basis of information solely and subjectively evaluated by the issuing officer, without respect to any standard of evidence.
There is no meaningful avenue to challenge or appeal an LOR, and for officers in the modern Air Force, such a sanction is instantaneously and catastrophically career ending. Rules require placement of an LOR into the official record of an officer, making it visible to promotion, development, and retention boards that decide whether officers’ careers continue, almost always culling perceived troublemakers from the ranks.
In other words, since the accused officers couldn’t be convicted and couldn’t be non-judicially punished, their chain of command opted to abandon the law altogether and destroy them administratively rather than admit it had been mistaken about their conduct, or that it could not prove what it initially suspected and therefore had a duty to hold them innocent.
This is a gross violation of the most basic ethical contracts governing the responsible exercise of command authority. It exposes a rush to judgment in lieu of a lucid decision based on a careful weighing of evidence. It is the latest proof that Air Force commanders are not intellectually or experientially equipped to administer a justice system, and that their legal advisors are too compromised by conflict of interest to render sound advice rooted in legal principle rather than political, ideological, or otherwise expedient imperatives.
The notion of a rush to judgment is independently supported. In at least two cases, the accused officers were given performance reports documenting proven misconduct before the investigations were completed. In one case, an officer’s report was documented more than four months before the investigation was closed. This reflects that the die had been cast before the evidence was in, much less considered, and that even the discovery of clearly exculpatory evidence was not going to spare these officers. Suspicion had condemned them, and there was no going back. The chain of command had gone for broke, and when it lost the bet, it refused to settle up, simply robbing the other players instead of beating them fair and square.
Public statements by senior leaders similarly indicate their minds had been made up before evidence was in-hand. According to several witnesses, Laughlin’s Operations Group Commander reportedly remarked in a public forum “there are officers among us who are using drugs, and we will crush them.” This was uttered long before any investigation had been completed, and in fact no investigation has ever substantiated the claim. Yet a senior officer was sufficiently convinced – on the basis of private text messages alone – to officially opine on the matter, in effect publicly tainting individuals everyone knew had been ensnared by the official dragnet.
What explains this seeming rush to judgment?
Any theory is speculative. It’s understandable that Laughlin’s senior leaders would want to pursue investigative leads indicating possible drug abuse, and there’s no denying that when a commander walks into a situation of failed discipline, it can be difficult to perfectly calibrate the response necessary to bring things in-hand.
Less understandable is the failure to shut down an investigation when it didn’t bear out suspicions with credible, concrete evidence. When this happens in the Air Force, it often reflects a perception on the part of base-level leaders that they need to appear tough on misconduct, real or perceived, to preserve their jobs. Wherever this rationale lurks, injustice is a frequent handmaiden.
It’s also the case that once senior officers declare someone a suspect and assume a prosecutorial mentality, they have a hard time accepting evidence to the contrary. This is traceable to the Air Force’s cultural allergy to losing face. Credibility is an important touchstone for the blue-suited senior officer, and admitting to unfounded suspicions of serious misconduct by junior officers cannot be seen as anything other than a knock against that credibility. This is, however, a descriptive theory and not an excuse for ethical compromise.
Whatever the explanation, a satisfactory rationale is much harder to come by. While not evident in public discourse, there is considerable evidence of internal recognition that the Laughlin witch-hunt went off the rails, outrunning its radar coverage and rendering itself indefensible. Rumors swirled in early 2015 that General Robin Rand, then commander of AETC, wanted a major shakeup at Laughlin, to include a new wing commander. His concerns were likely compounded when he felt the necessity to relieve Maj. Gen. Mike Keltz, who oversaw Laughlin and reported to Rand, after the two-star made a racially discriminatory remark at a public hearing related to the Laughlin mess.
For whatever reason, Rand did not follow through on his rumored impulse to install a new leadership team. Nor did he carry through on privately rendered assurances that he would publicly explain the investigations.
His decision to stay hands-off essentially legitimized a seemingly extra-legal and facially absurd series of decisions that reflect poorly upon the Air Force, AETC, and Rand’s own leadership. What began as a probe into sexual impropriety morphed into an unbounded survey of private morality, with officials evidently galloping from one rationale to the next in order to vindicate their original suspicions rather than admit to overreach, much less actually consider the genuine culpability of the accused, as is their duty to do. This at the cost of three careers, incongruously scorched on the basis of the same evidence that exonerated a fourth officer.
For these three orphans of justice, the road to toast continues. All have had their aeronautical orders permanently suspended, meaning they can no longer fly. The reason given for the suspension was not drug abuse, which the chain of command realized it couldn’t prove. Instead, they’ve been suspended for “failure to adhere to Air Force standards.”
This is the sort of vagary adored by fascists for its malleability, but to believe it extends into private text communications is positively bizarre. By the new standard created, anyone in the Air Force is at risk of permanent career destruction for sending a subjectively inappropriate text message from a private cellphone. Nonetheless, this new standard is being used to drive the final nail into the coffin of three careers. Without wings, these officers have no justification for continued service, and their command is now seeking to discharge them altogether.
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Laughlin decided it had a problem with sexual impropriety among IPs and students. Nearly a dozen officers have been implicated in conduct more or less corroborating that theory. Eight of those officers retain their flying status. Two retain instructor privileges, flying and having access to students on a daily basis.
Meanwhile, three officers who had neither involvement nor knowledge of the problem sit idle as they await punitive discharge on the basis of unsubstantiated charges. The Air Force justice system, such as it is, doesn’t even take notice of them, much less intervene. Unable to prove a negative, they’re little more than supine servants wishing for mercy in the face of unbridled authority flexing itself without limit. They’re robbed of career, reputation, and future prospects not because they actually did anything wrong, but because one or more people with enough rank to roam unchallenged in the jungle of Air Force “justice” prejudged them and later doubled down rather than listen to the evidence.
If this situation and others like it are allowed to stand, we are indeed in a new world in the Air Force of 2015. A world where private communications can be seized by the chain of command, deemed inconsistent with subjective standards, and used to justify career-ending disciplinary action. A world where a mere whiff of suspicion is fatally toxic to an individual’s reputation and prospects. Most chillingly, a world where individual dignity, agency, and fairness wither in the face of unchecked power. In other words, a fascist world where power triumphs over reason and law and ideas like morality and ethics are extinguished, replaced by self-concern, cronyism, and control masquerading as micromanagement.
Can American defense be effectively sustained by a fundamentally undemocratic air service? Unless adult leadership and moral courage intercede, we may live to find out. It’s in that spirit that I implore Secretary of the Air Force Deborah Lee James to open an independent inquiry into what’s been happening at Laughlin. With enough velocity, she might rescue this situation with an appropriate process and spare her service yet another public setback.
More importantly, she might convince airmen they’re still serving in an organization worthy of their commitment.