Military Justice

More Coast Guard Cadets Under Investigation For Sexual Misconduct

Posted on February 5, 2014 by Judge London Steverson

New London — A cadet at the U.S. Coast Guard Academy (USCGA) is accused of breaking into a dorm room and sexually abusing another cadet.

An Academy spokesman said the alleged incident occurred in mid-September in the Chase Hall barracks.

The accused cadet is suspected of violating Articles 120, 130 and 134 of the Uniform Code of Military Justice (UCMJ), the military’s criminal code, which prohibit abusive sexual contact, housebreaking and unlawful entry. The charges were preferred, or formally initiated, and then served to the accused on Monday, February 3, 2014. (See below for specific elements of the offenses.)

A military attorney, or judge advocate general, will now conduct an Article 32 investigation to determine whether there is enough evidence to warrant a court-martial.

The Academy would not identify the gender of either cadet involved. Capt. Eric C. Jones, the academy’s assistant superintendent, said that while Article 120 includes rape, in this case, “the alleged offense is not rape.”

The academy is sending the accused off campus to work at another Coast Guard unit while the process moves forward, Jones said in an interview Tuesday, February 4. The alleged victim is taking classes and using the support services on campus.

Rear Adm. Sandra L. Stosz, the academy superintendent, decided to proceed with the Article 32 investigation, Jones said.

This type of investigation has often been compared to grand jury proceedings in the civilian judicial system since both are concerned with determining whether there is sufficient probable cause to believe a crime was committed and whether the person accused of the crime committed it. The military investigation, however, is broader in scope and more protective of the accused.

Jones did not release the names of the cadets or many details about the alleged incident, citing the fact that the investigation is ongoing. The Coast Guard Investigative Service (CGIS) conducted the initial investigation.

Jones added that the Academy is concerned with protecting the rights of the victim and the accused and ensuring the legal process is fair.

“I ask everyone to be patient and not to engage in supposition and rumors,” he said. “As soon as it gets to the point where it’s appropriate to release information directly to the public about the case, we’ll be ready to do that.” An Article 32 hearing is a public hearing.

The only cadet ever court-martialed at the Coast Guard Academy was tried on sexual assault charges in 2006. Webster M. Smith was convicted on extortion, sodomy and indecent-assault charges and acquitted of rape.

(The Webster Smith Case was appealed all the way to the U. S. Supreme Court. It is fully documented in a book entitled “Conduct Unbecoming An Officer and a Lady” available on Amazon.com http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-Conviction/dp/1460978021 )

The Article 32 investigating officer (IO) in this case could recommend that the alleged offenses be dismissed, dealt with administratively, or referred for trial by court-martial. Stosz, as the convening authority, will decide which path to take.

Jones said he is hoping for a decision within one to three months, but there are legal processes that could extend that timeline. (By Jennifer McDermott)

j.mcdermott@theday.com

(CGA cadet accused of sexually abusing another cadet,McDermott J.,The Day, Military News, Feb 05, 2014) 

(ADDITIONAL EXPLANATORY INFORMATION)

Note: As part of the FY 2006 Military Authorization Act, Congress amended Article 120 of the Uniform Code of Military Justice (UCMJ), effective for offenses occurring on and after October 1, 2007. Article 120 was formerly known as “Rape and carnal knowledge,” but is now entitled “Rape, sexual assault, and other sexual misconduct.”

The new Article 120 creates 36 offenses. These 36 offenses replace those offenses under the former Article 120 and others that used to be MCM offenses under Article 134 (the “General” Article).

The new Article 120 replaces the following Article 134 offenses:

The UCMJ change also amends two Article 134 offenses:

(1) Indecent language communicated to another – other than when communicated in the presence of a child – remains punishable under Article 134. If the language was communicated in the presence of a child, then it is an Article 120 offense.

(2) Pandering (having someone commit an act of prostitution) is still an offense under Article 134, but if the pandering is “compelled,” it becomes an Article 120 offense.

ELEMENTS OF THE OFFENSE

Rape

By using force: That the accused caused another person, who is of any age, to engage in a sexual act by using force against that other person.

By causing grievous bodily harm: That the accused caused another person, who is of any age, to engage in a sexual act by causing grievous bodily harm to any person.

By using threats or placing in fear: That the accused caused another person, who is of any age, to engage in a sexual act by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious: That the accused caused another person, who is of any age, to engage in a sexual act by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act by administering to that other person a drug, intoxicant, or other similar substance;
      (ii) That the accused administered the drug, intoxicant or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
      (iii) That, as a result, that other person’s ability to appraise or control conduct was substantially impaired.

Aggravated sexual assault

By using threats or placing in fear:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

      (i) That the accused caused another person, who is of any age, to engage in a sexual act; and
    (ii) That the accused did so by causing bodily harm to another person.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

      (i) That the accused engaged in a sexual act with another person, who is of any age; and (Note: add one of the following elements)
      (ii) That the other person was substantially incapacitated;
      (iii) That the other person was substantially incapable of appraising the nature of the sexual act;
      (iv) That the other person was substantially incapable of declining participation in the sexual act; or
      (v) That the other person was substantially incapable of communicating unwillingness to engage in the sexual act.

Aggravated sexual contact

By using force:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by using force against that other person.

By causing grievous bodily harm:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing grievous bodily harm to any person.

By using threats or placing in fear:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping.

By rendering another unconscious:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by rendering that other person unconscious.

By administration of drug, intoxicant, or other similar substance:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
      (iii) (a) That the accused did so by administering to that other person a drug, intoxicant, or other similar substance;
      (b) That the accused administered the drug, intoxicant, or other similar substance by force or threat of force or without the knowledge or permission of that other person; and
      (c) That, as a result, that other person’s ability to appraise or control conduct was substantially impaired.

Abusive sexual contact

By using threats or placing in fear:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by threatening or placing that other person in fear that any person would be subjected to bodily harm or other harm (other than by threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping).

By causing bodily harm:

      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and
    (iii) That the accused did so by causing bodily harm to another person.
      (i) That the accused engaged in sexual contact with another person; or
      (ii) That the accused caused sexual contact with or by another person; and (Note: add one of the following elements)
      (iii) That the other person was substantially incapacitated;
      (iv) That the other person was substantially incapable of appraising the nature of the sexual contact;
      (v) That the other person was substantially incapable of declining participation in the sexual contact; or
      (vi) That the other person was substantially incapable of communicating unwillingness to engage in the sexual contact.

Wrongful sexual contact

      (a) That the accused had sexual contact with another person;
      (b) That the accused did so without that other person’s permission; and
      (c) That the accused had no legal justification or lawful authorization for that sexual contact.

Upon a person substantially incapacitated or substantially incapable of appraising the act, declining participation, or communicating unwillingness:

Indecent act

      (a) That the accused engaged in certain conduct; and
    (b) That the conduct was indecent conduct.

Indecent exposure

      (a) That the accused exposed his or her genitalia, anus, buttocks, or female areola or nipple;
      (b) That the accused’s exposure was in an indecent manner;
      (c) That the exposure occurred in a place where the conduct involved could reasonably be expected to be viewed by people other than the accused’s family or household; and
    (d) That the exposure was intentional.

Aggravated sexual abuse of a child

      (a) That the accused engaged in a lewd act; and
    (b) That the act was committed with a child who has not attained the age of 16 years.

Forcible pandering

      (a) That the accused compelled a certain person to engage in an act of prostitution; and
    (b) That the accused directed another person to said person, who then engaged in an act of prostitution.

Note: If the act of prostitution was not compelled, but “the accused induced, enticed, or procured a certain person to engage in an act of sexual intercourse for hire and reward with a person to be directed to said person by the accused,” see Article 134.

DEFINITIONS

Sexual act. The term ‘sexual act’ means —

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

Sexual contact. The term ‘sexual contact’ means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.

Grievous bodily harm. The term ‘grievous bodily harm’ means serious bodily injury. It includes fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, and other severe bodily injuries. It does not include minor injuries such as a black eye or a bloody nose. It is the same level of injury as in Article 128, and a lesser degree of injury than in section 2246(4) of title 18.

Dangerous weapon or object. The term ‘dangerous weapon or object’ means —

(A) any firearm, loaded or not, and whether operable or not;

(B) any other weapon, device, instrument, material, or substance, whether animate or inanimate, that in the manner it is used, or is intended to be used, is known to be capable of producing death or grievous bodily harm; or

(C) any object fashioned or utilized in such a manner as to lead the victim under the circumstances to reasonably believe it to be capable of producing death or grievous bodily harm.

Force. The term ‘force’ means action to compel submission of another or to overcome or prevent another’s resistance by —

(A) the use or display of a dangerous weapon or object;

(B) the suggestion of possession of a dangerous weapon or object that is used in a manner to cause another to believe it is a dangerous weapon or object; or

(C) physical violence, strength, power, or restraint applied to another person, sufficient that the other person could not avoid or escape the sexual conduct.

Threatening or placing that other person in fear.The term ‘threatening or placing that other person in fear’ for the charge of ‘rape’ or the charge of ‘aggravated sexual contact’ means a communication or action that is of sufficient consequence to cause a reasonable fear that non-compliance will result in the victim or another person being subjected to death, grievous bodily harm, or kidnapping.

Threatening or placing that other person in fear. In general. The term ‘threatening or placing that other person in fear’ for the charge of ‘aggravated sexual assault, or the charge of ‘abusive sexual contact’ means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another being subjected to a lesser degree of harm than death, grievous bodily harm, or kidnapping.

Inclusions. Such lesser degree of harm includes —

      (i) physical injury to another person or to another person’s property; or
      (ii) a threat —
      (I) to accuse any person of a crime;
      (II) to expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
    (III) through the use or abuse of military position, rank, or authority, to affect or threaten to affect, either positively or negatively, the military career of some person.

Bodily harm. The term ‘bodily harm’ means any offensive touching of another, however slight.

Child. The term ‘child’ means any person who has not attained the age of 16 years.

Lewd act. The term ‘lewd act’ means —

(A) the intentional touching, not through the clothing, of the genitalia of another person, with an intent to abuse, humiliate, or degrade any person, or to arouse or gratify the sexual desire of any person; or

(B) intentionally causing another person to touch, not through the clothing, the genitalia of any person with an intent to abuse, humiliate or degrade any person, or to arouse or gratify the sexual desire of any person.

Indecent liberty. The term ‘indecent liberty’ means indecent conduct, but physical contact is not required. It includes one who with the requisite intent exposes one’s genitalia, anus, buttocks, or female areola or nipple to a child. An indecent liberty may consist of communication of indecent language as long as the communication is made in the physical presence of the child. If words designed to excite sexual desire are spoken to a child, or a child is exposed to or involved in sexual conduct, it is an indecent liberty; the child’s consent is not relevant.

Indecent conduct. The term ‘indecent conduct’ means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations. Indecent conduct includes observing, or making a videotape, photograph, motion picture, print, negative, slide, or other mechanically, electronically, or chemically reproduced visual material, without another person’s consent, and contrary to that other person’s reasonable expectation of privacy, of —

(A) that other person’s genitalia, anus, or buttocks, or (if that other person is female) that person’s areola or nipple; or

(B) that other person while that other person is engaged in a sexual act, sodomy (under Article 125 ), or sexual contact.

Act of prostitution. The term ‘act of prostitution’ means a sexual act, sexual contact, or lewd act for the purpose of receiving money or other compensation.

Consent. The term ‘consent’ means words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused’s use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship by itself or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. A person cannot consent to sexual activity if —

(A) under 16 years of age; or

(B) substantially incapable of —

(i) appraising the nature of the sexual conduct at issue due to —

(I) mental impairment or unconsciousness resulting from consumption of alcohol, drugs, a similar substance, or otherwise; or

(II) mental disease or defect which renders the person unable to understand the nature of the sexual conduct at issue;

(ii) physically declining participation in the sexual conduct at issue; or

(iii) physically communicating unwillingness to engage in the sexual conduct at issue.

Mistake of fact as to consent. The term ‘mistake of fact as to consent’ means the accused held, as a result of ignorance or mistake, an incorrect belief that the other person engaging in the sexual conduct consented. The ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. To be reasonable the ignorance or mistake must have been based on information, or lack of it, which would indicate to a reasonable person that the other person consented. Additionally, the ignorance or mistake cannot be based on the negligent failure to discover the true facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. The accused’s state of intoxication, if any, at the time of the offense is not relevant to mistake of fact. A mistaken belief that the other person consented must be that which a reasonably careful, ordinary, prudent, sober adult would have had under the circumstances at the time of the offense.

MAXIMUM PUNISHMENTS

Rape and Rape of a Child: Dishonorable Discharge, death or confinement for Life, and forfeiture of all pay and allowances.

Aggravated Sexual Assault: Dishonorable Discharge, confinement for 30 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Assault of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Abuse of a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Contact:Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Aggravated Sexual Contact with a Child: Dishonorable Discharge, confinement for 20 yrs, and forfeiture of all pay and allowances.

Abusive Sexual Contact with a Child:Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.

Indecent Liberty with a Child: Dishonorable Discharge, confinement for 15 yrs, and forfeiture of all pay and allowances.

Abusive Sexual Contact: Dishonorable Discharge, confinement for 7 yrs, and forfeiture of all pay and allowances.

Indecent Act: Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.

Forcible Pandering:Dishonorable Discharge, confinement for 5 yrs, and forfeiture of all pay and allowances.

Wrongful Sexual Contact:Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Indecent Exposure: Dishonorable Discharge, confinement for 1 yr, and forfeiture of all pay and allowances.

Article 130—Housebreaking

Text.

“Any person subject to this chapter who unlawfully enters the building or structure of another with intent to commit a criminal offense therein is guilty of housebreaking and shall be punished as a court-martial may direct.”

Elements.

(1) That the accused unlawfully entered a certain building or structure of a certain other person; and

(2) That the unlawful entry was made with the intent to commit a criminal offense therein.

Explanation.

(1) Scope of offense. The offense of housebreaking is broader than burglary in that the place entered is not required to be a dwelling house; it is not necessary that the place be occupied; it is not essential that there be a breaking; the entry may be either in the night or in the daytime; and the intent need not be to commit one of the offenses made punishable under Articles 118 through 128.

(2) Intent. The intent to commit some criminal offense is an essential element of housebreaking and must be alleged and proved to support a conviction of this offense. If, after the entry the accused committed a criminal offense inside the building or structure, it may be inferred that the accused in-tended to commit that offense at the time of the entry.

(3) Criminal offense. Any act or omission which is punishable by courts-martial, except an act or omission constituting a purely military offense, is a “criminal offense.”

(4) Building, structure. “Building” includes a room, shop, store, office, or apartment in a building. “Structure” refers only to those structures which are in the nature of a building or dwelling. Examples of these structures are a stateroom, hold, or other compartment of a vessel, an inhabitable trailer, an in-closed truck or freight car, a tent, and a houseboat. It is not necessary that the building or structure be in use at the time of the entry.

(5) Entry. See paragraph 55c(3).

(6) Separate offense. If the evidence warrants, the intended offense in the housebreaking specification may be separately charged.

Lesser included offenses.

(1) Article 134—unlawful entry

(2) Article 80—attempts

Maximum punishment. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

UCMJ Article 134—General article

“Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”

Elements.

The proof required for conviction of an offense under Article 134 depends upon the nature of the misconduct charged. If the conduct is punished as a crime or offense not capital, the proof must establish every element of the crime or offense as required by the applicable law. If the conduct is punished as a disorder or neglect to the prejudice of good order and discipline in the armed forces, or of a nature to bring discredit upon the armed forces, then the following proof is required:

    (1) That the accused did or failed to do certain acts; and
    (2) That, under the circumstances, the accused’s conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

Explanation.

(1) In general. Article 134 makes punishable acts in three categories of offenses not specifically covered in any other article of the code. These are referred to as “clauses 1, 2, and 3” of Article 134. Clause 1 offenses involve disorders and neglects to the prejudice of good order and discipline in the armed forces. Clause 2 offenses involve conduct of a nature to bring discredit upon the armed forces. Clause 3 offenses involve noncapital crimes or offenses which violate Federal law including law made applicable through the Federal Assimilative Crimes Act, see subsection (4) below. If any conduct of this nature is specifically made punishable by another article of the code, it must be charged as a violation of that article. See subparagraph (5)(a) below. How-ever, see paragraph 59c for offenses committed by commissioned officers, cadets, and midshipmen.

(2) Disorders and neglects to the prejudice of good order and discipline in the armed forces (clause 1).

      (a)

To the prejudice of good order and discipline

      . “To the prejudice of good order and discipline” refers only to acts directly prejudicial to good order and discipline and not to acts which are preju dicial only in a remote or indirect sense. Almost any irregular or improper act on the part of a member of the military service could be regarded as prejudicial in some indirect or remote sense; however, this article does not include these distant effects. It is con-fined to cases in which the prejudice is reasonably direct and palpable. An act in violation of a local civil law or of a foreign law may be punished if it constitutes a disorder or neglect to the prejudice of good order and discipline in the armed forces. However,

see R.C.M. 203

    concerning subject-matter jurisdiction.
      (b)

Breach of custom of the service

      . A breach of a custom of the service may result in a violation of clause 1 of Article 134. In its legal sense, “custom” means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them. No custom may be contrary to existing law or regulation. A custom which has not been adopted by existing statute or regulation ceases to exist when its observance has been generally abandoned. Many customs of the service are now set forth in regulations of the vari ous armed forces. Violations of these customs should be charged under Article 92 as violations of the regulations in which they appear if the regulation is punitive.

See

    paragraph 16c.

(3) Conduct of a nature to bring discredit upon the armed forces (clause 2). “Discredit” means to injure the reputation of. This clause of Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem. Acts in violation of a local civil law or a foreign law may be punished if they are of a nature to bring discredit upon the armed forces. However, see R.C.M. 203 concerning subject-matter jurisdiction.

(4) Crimes and offenses not capital (clause 3).

      (a)

In general

      . State and foreign laws are not included within the crimes and offenses not capital referred to in this clause of Article 134 and violations thereof may not be prosecuted as such except when State law becomes Federal law of local application under

section 13 of title 18 of the United States Code

      (Federal Assimilative Crimes Act—

see

    subparagraph (4) (c) below). For the purpose of court-martial jurisdiction, the laws which may be applied under clause 3 of Article 134 are divided into two groups: crimes and offenses of unlimited application (crimes which are punishable regardless where they may be committed), and crimes and offenses of local application (crimes which are punishable only if committed in a reas of federal jurisdiction).

(b) Crimes and offenses of unlimited application. Certain noncapital crimes and offenses prohibited by the United States Code are made applicable under clause 3 of Article 134 to all persons subject to the code regardless where the wrongful act or omission occurred. Examples include: counterfeiting ( 18 U.S.C. § 471), and various frauds against the Government not covered by Article 132.

(c) Crimes and offenses of local application.

      (i)

In general

    . A person subject to the code may not be punished under clause 3 of Article 134 for an offense that occurred in a place where the law in question did not apply. For example, a person may not be punished under clause 3 of Article 134 when the act occurred in a foreign country merely because that act would have been an offense under the United States Code had the act occurred in the United States. Regardless where committed, such an act might be punishable under clauses 1 or 2 of Article 134. There are two types of congressional enactments of local application: specific federal statutes (defining particular crimes), and a general federal statute, the Federal Assimilative Crimes Act (which adopts certain state criminal laws).

(5) Limitations on Article 134.

      (a)

Preemption doctrine

      . The preemption doc-trine prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in

Article 121

    , and if an element of that offense is lacking—for example, intent— there can be no larceny or larceny-type offense, either under Article 121 or, because of preemption, under Article 134. Article 134 cannot be used to create a new kind of larceny offense, one without the required intent, where Congress has already set the minimum requirements for such an offense in Article 121.

(b) Capital offense. A capital offense may not be tried under Article 134.

Above Information from Manual for Court Martial.

Categories: Military Justice | Tags: , , , , , , | 4 Comments

Expert on Gender and Violence To The Rescue

Posted on December 23, 2013 by Judge London Steverson
The Cadet Chapel at United States Air Force Ac...

The Cadet Chapel at United States Air Force Academy, Colorado Springs (Photo credit: Wikipedia)

Christopher Kilmartin, a professor from Virginia will spend the upcoming academic
year teaching courses on gender at the (USAFA) Air Force Academy to combat
sexual assaults.

He is a psychology instructor at
the University of Mary Washington in Fredericksburg, Va., and will serve as
a visiting professor at USAFA, teaching “Men and Masculinity” in
the fall and “Interpersonal Violence” in the spring.

Neither
course is required of students. But so many have registered for the lone
section of “Men and Masculinity” that the academy is considering adding
another, said Col. Gary Packard, head of the academy’s Department of
Behavioral Sciences and Leadership.

“When I looked at his
background, he became my No. 1 candidate” for the department’s visiting
professor position, Packard said. “We need him here to deal with these
issues, especially those related to masculinity.”

Kilmartin will conduct research and consult with leaders during his time at the academy, Packard said.

Kilmartin
has previously worked with the U.S. Naval Academy to revise its sexual
assault and harassment prevention curriculum. He also wrote a script for
an Army training film on the same topic.

His knowledge of military culture “gives him credibility right from the start,” Packard said.

Another trait Packard says will serve Kilmartin well at the academy: his sense of humor.

Kilmartin is also a stand-up comedian.

“I
think the cadets will gravitate toward him,” Packard said. “More
importantly, I think commanders and leadership will connect with him as
well.”

During Kilmartin’s two-plus decades of teaching courses on masculinity, the majority of his students have been females.

That’s less likely to be the case at the academy, where the majority of students are male.

“One
of the biggest struggles in teaching that area is getting men into the
room,” said Kilmartin, the author of the textbook “The Masculine Self.”

“The
way gender roles are constructed, a lot of men don’t feel comfortable
expressing interest in it. It takes a pretty self-aware man to get
interested in gender.”

Kilmartin’s fall class will examine how
masculinity is constructed, how men are socialized and how individuals
form gender ideology.

“There’s a lot of theory in the first part”
of the class, he said. “The second part includes discussion of men’s
issues: work, mental health, physical health, relationships, sexuality,
violence, and contemporary topics like the prison problem, pornography
and prostitution.”

As part of their coursework, Kilmartin will
assign his students to journal about gender stereotypes they observe in
their everyday lives.

“It’s a really powerful assignment, he said.
“By mid-semester, they realize it’s everywhere. Then they get mad at me
because they think they can’t watch TV anymore.

“Before, they
tend to look at things uncritically. When they get a new pair of lenses
to look at the world, it can be annoying. You can pay a price for it,
but it can be of enormous benefit as well.”

His spring class will
offer an opportunity to examine violence committed by males, a topic
that is often overlooked because “people in dominate groups have the
luxury of having their identity remain invisible,” Kilmartin said.

It will also examine the origins and consequences of, and remedies to, interpersonal violence, he added.

Kilmartin’s
short-term goal is to increase sexual assault reporting rates at the
academy so that perpetrators, most of whom are serial offenders, are
stopped, he said.

“I’m not going to come in there and do magic,
but I’d like to do something,” he said. “Sometimes we forget that these
are young adults, that many of them don’t have a lot of experience with
relationships and sexuality. We forget that because we put them in
uniform and they look like these machines and we think they have it all
together. But they’re kids in some ways. We need to talk with them like
kids.”

His ultimate goal is to “take a public health approach and
reduce the incidence of sex assault at the academy and the military at
large.”

Arming cadets with knowledge on the topics of gender and violence isn’t just the right thing to do, he said.

It’s good for their careers.

“We
wouldn’t dream of sending leaders out into the world without computer
skills, management skills, leadership abilities,” he said. “There is no
way any commander is going to get out in the world and not have to deal
with people in his or her command who are women, who are gay men,
lesbians, maybe even someone transgendered.

“If you don’t
understand these different forms of identity and how they play out in
your organization, you’re just not going to be a good commander.”

During
the 2011-2012 academic year, sex assault reports involving Air Force
Academy cadets increased by about 50 percent over the previous academic
year, accounting for the majority of reported assaults across the
nation’s three military academies, according to a Defense Department
report released late last year. (NOTE: West Point, Annapolis, and AFA at Colorado Springs are not the only military academies in the U.S.. There is a Coast Guard Academy at New London, CT..)

Cadets have attended annual sexual
assault prevention training since 2005. An increase in reporting rates
is a sign that those training sessions are working, victim advocate at
the academy told The Gazette in January. (By Erin Prater)

Categories: Military Justice | Tags: , , , , , , , , , | 1 Comment

Honor, Deception and Betrayal. How Air Force Cadets Are Used As Informants, Then Betrayed and Expelled.

Posted on December 2, 2013 by Judge London Steverson

 

Honor and Deception
A secretive Air Force program recruits Academy students to inform on fellow cadets and disavows them afterward.

Facing pressure to combat drug use and sexual assault at the Air Force Academy, the Air Force has created a secret system of cadet informants to hunt for misconduct among students.

Cadets who attend the publicly-funded academy near Colorado Springs must pledge never to lie. But the program pushes some to do just that: Informants are told to deceive classmates, professors and commanders while snapping photos, wearing recording devices and filing secret reports.

(Coast Guard Academy Cadet London Steverson in 1966 on a Summer Exchange Program with the Air Force Academy)

It was a great honor for me to spend the Summer of 1966 training with the cadets from the United States Air Force Academy. They were highly motivated and very disciplined. I made one of the best friends I have had in my life while visiting the Air Force Academy at Colorado Springs, Colorado. He was Cadet Kenneth Little from Washington, D.C.

                                                                                                                   (Former Air Force Academy Cadet Kenneth Little.)

None of the service academies had started to admit female cadets in the 1960s. The male cadets were gung ho and macho. Drugs and binge drinking were not yet a part of the academy culture. I am fairly certain that there was no program of confidential cadet informants at that time. It is highly repugnant to use cadets in such a way. It betrays everything that we stood for as cadets and future officers.
For one former academy student, becoming a covert government operative meant not only betraying the values he vowed to uphold, it meant being thrown out of the academy as punishment for doing the things the Air Force secretly told him to do.

eric in p coat

“It was like a spy movie. I worked on dozens of cases, did a lot of good, and when it all hit the fan, they didn’t know me anymore.” – Eric Thomas

Eric Thomas, 24, was a confidential informant for the Office of Special Investigations, or OSI — a law enforcement branch of the Air Force. OSI ordered Thomas to infiltrate academy cliques, wearing recorders, setting up drug buys, tailing suspected rapists and feeding information back to OSI. In pursuit of cases, he was regularly directed by agents to break academy rules.

“It was exciting. And it was effective,” said Thomas, a soccer and football player who received no compensation for his informant work. “We got 15 convictions of drugs, two convictions of sexual assault. We were making a difference. It was motivating, especially with the sexual assaults. You could see the victims have a sense of peace.”

Through it all, he thought OSI would have his back. But when an operation went wrong, he said, his handlers cut communication and disavowed knowledge of his actions, and watched as he was kicked out of the academy.

“It was like a spy movie,” said Thomas, who was expelled in April, a month before graduation. “I worked on dozens of cases, did a lot of good, and when it all hit the fan, they didn’t know me anymore.”

The Air Force’s top commander and key members of the academy’s civilian oversight board claim they have no knowledge of the OSI program. The Gazette confirmed the program, which has not been reported in the media through interviews with multiple informants, phone and text records, former OSI agents, court filings and documents obtained through the Freedom of Information Act.

The records show OSI uses FBI-style tactics to create informants. Agents interrogate cadets for hours without offering access to a lawyer, threaten them with prosecution, then coerce them into helping OSI in exchange for promises of leniency they don’t always keep. OSI then uses informants to infiltrate insular cadet groups, sometimes encouraging them to break rules to do so. When finished with informants, OSI takes steps to hide their existence, directing cadets to delete emails and messages, misleading Air Force commanders and Congress, and withholding documents they are required to release under the Freedom of Information Act.

The program also appears to rely disproportionately on minority cadets like Thomas.

“Their behavior in (Thomas’s) case goes beyond merely disappointing, and borders on despicable,” Skip Morgan, a former OSI lawyer who headed the law department at the Academy, said in a letter to the Superintendent of the Academy in April. Morgan is now Thomas’s lawyer. The Superintendent did not reply.

The Air Force also has not replied to a letter sent by Thomas’ senator, John Thune of South Dakota, in September asking officials to meet with Thomas.

While the informant program has resulted in prosecutions, it also creates a fundamental rift between the culture of honesty and trust the academy drills into cadets and another one of duplicity and betrayal that the Air Force clandestinely deploys to root out misconduct.

The Gazette identified four informants. Three agreed to speak about their experience with OSI. All had been told they were the only informant on campus, but eventually learned of more, including each other. Because of the secretive nature of the program, The Gazette was unable to determine its scope, but the informants interviewed by The Gazette said they suspect the campus of 4,400 cadets has dozens.

“It’s contradictory to everything the academy is trying to do,” said one of the informants, Vianca Torres. “They say we are one big family, and to trust each other, then they make you lie to everyone.”

Academy commanders declined multiple requests for interviews. OSI also declined requests for comment, saying in a statement it could neither confirm nor deny the existence of the program.

Gen. Mark Welsh, the Chief of Staff of the Air Force, the service’s top officer and only commander with authority over both the academy and OSI, said he was unfamiliar with the cadet informant system.

“I don’t know a thing about it,” he said in an interview in October.

Members of the academy’s civilian oversight board, which includes members of Congress, also said they had not heard of the program.

Records show, for a time, Thomas was at the center of it. He worked major operations that netted high-profile prosecutions. OSI documents said he was “very reliable” and “provided OSI with ample amounts of vital information.”

Legal experts say informants are useful and commonly employed in fighting crime. But informants on college campuses are exceedingly rare, and other experts warn they have a corrosive effect on individuals and institutions.

“It changes everyone’s relationship to the whole institution because it erodes the moral authority of the law,” said Loyola University professor Alexandra Natapoff, who studies informants and the law. “There are rules — unless you snitch. People begin to question the fairness of the system. And it sets cadets against their fellow cadets. It can really change their lives, sometimes in ways that can be very harmful.”

The three informants who spoke to The Gazette said the system needs reform.

“I hate it,” said a third cadet who said he became an informant in 2011. The cadet, who graduated in May and is now an officer, did not want to be identified because he feared retribution by the Air Force. He said being an informant was the worst thing he has ever done. “It puts you in a horrible situation: Lying, turning on other cadets. I felt like a rat. OSI says they will offer you protection, have your back. Then they don’t. Look what happened to Eric.”

Integrity first

Thomas said his life as an informant started after an off-campus cadet party in 2010.

The Air Force Academy is hardly known as a party school. Incoming cadets face a barrage of rules. For the first several months, they can’t wear civilian clothes or even civilian eyeglasses. They must run at attention to class and sit at attention at meals, setting forks down before chewing each bite seven times. They live in dorms where TVs, microwaves, and even unauthorized pillows are forbidden until senior year. These long-held traditions, used at all military academies, are designed to strip students of former identities and instill the collective identity of the Air Force.

Cadets at the Air Force Academy must meet rigorous standards. (Courtesy U.S. Air Force)

Any slip-up earns a cadet punishment and demerits. A cadet who amasses 200 demerits gets expelled. Any illegal drug use is grounds for immediate dismissal. About 70 cadets each year are kicked out.

Cadets are made to repeat the core values of the Air Force: “Integrity first, service before self, and excellence in all we do.”

They pledge to an honor code: “We will not lie, steal or cheat, nor tolerate among us anyone who does.” Telling a lie can get a cadet expelled. Even telling misleading truths, known as “quibbling,” can land a cadet in hot water.

The idea is to forge the integrity future officers need.

Even so, some cadets throw illegal parties off base, usually at houses rented for the weekend by a third party.

In fall 2010, Thomas, a sophomore, went to a house party near Divide. It was a typical college bash, he said, with pounding music, beer and cadets on the back porch smoking pot and a synthetic marijuana called spice.

The party was busted by civilian police. About two weeks later, the then 21-year-old said he was ordered to report to OSI for questioning.

OSI, formed in 1948, has about 2,300 personnel at bases around the globe who investigate terrorism threats, espionage, fraud, and other major crimes. Its motto is “eyes of the eagle.” Agents wear no rank or uniform. They answer not to the commanders where they are based, but to a central OSI office near Washington, D.C.

The Academy has about 12 agents, but cadets say few students know OSI exists.

Thomas, left, began informing on other cadets, including close friends.

An OSI agent named Mike Munson brought Thomas into a small interrogation room with a one-way mirror and a microphone, Thomas said. Munson did not respond to The Gazette’s email requests for an interview.

Thomas said he wasn’t nervous. He was a straight-laced athlete from a strict home who had never done drugs and drank very little. The agent told him he was there only as a witness. He wanted to know who did what at the party. At first, Thomas gave vague answers, but Munson pressed harder, Thomas said, grilling the cadet for more than three hours: OSI had witnesses. They had proof Thomas knew more than he was saying. It was the cadet’s duty to tell the truth. Under the honor code, not turning in spice smokers was the same as smoking spice.

The academy teaches cadets not to question superiors, Thomas said. When OSI asked him to do things, he thought he had little choice.

“Eventually I told them everything I knew,” Thomas said.

Thomas’s experience mirrors that of Vianca Torres. At age 20, when she was a junior, she said, OSI called her in as a potential witness because she had gone to a party where other women had reported being sexually assaulted. OSI interrogated her for six hours, she said, grilling her not only about the assaults but about drug use and other crimes among her friends going back years. At first the cadet with a clean record said she resisted, but they pressed harder.

“They called me a disgrace to my country. They called me a disgrace to my family,” she said.

Sobbing, she said, she eventually told on friends and admitted to smoking spice two years before.

Vianca Torres

OSI charged her for the crime, then promised to make the charge go away if she became an informant. She worked for OSI for 10 months, she said. OSI tried to plant a video camera in her alarm clock to bust a friend, she said.

She balked at the camera, she said, but did everything else OSI asked. Even so, she was kicked out in November, 2012 for her admission of drug use years before.

Before she was expelled, Torres said, OSI ordered her to delete all texts and emails showing the existence of her handler. In retrospect, she said, OSI just dragged out her dismissal so she could do more work as an informant.

“You just get used,” said Torres. “OSI gets what they want and kicks you to the curb.”

OSI has used similar informant programs at other bases for decades. But at the Academy it has been using cadet informants for about 10 years, documents show.

“You just get used.

OSI gets what they want

and kicks you to the curb.” -Vianca Torres

Top leadership in the late 1990s told The Gazette they were not aware of an informant program. Then in 2001,  the academy was rocked by high profile cases of drug use that resulted in Congressional investigations. That year an OSI officer named Keith Givens, who is now vice commander of OSI, wrote in the Air Force’s official legal journal, The Reporter, that the Air Force should use “a web of undercover agents and informants to detect drug abuse.” In 2003 the academy was hit by more scandals over drugs and sexual assaults that resulted in the removal of top brass. By 2004, court documents show, OSI was recruiting cadets as informants. Documents show that at least some academy leaders have knowledge of the program, but it is not clear if they know who is involved and what they do.

At the end of Thomas’s interrogation, Munson told him that the Air Force wanted him to become a confidential informant.

“What would I have to do?” Thomas asked.

“Just get in with everyone,” he remembers Munson saying. “Go to parties, flirt with females, be friends with everyone. That’s how you start.”

Thomas asked if it would mean breaking the cadet honor code. He said Munson told him there was no cadet honor code in this line of work.

Trust is at the heart of any honor code, said Laurie Johnson, a Kansas State University professor who specializes in ethics and honor codes. “By introducing spying I would think the cadets would believe there’s no trust,” Johnson said.

Worse, she said, if the Air Force encourages cadets to break the honor code as informants, it shows leaders have little use for the rules cadets are expected to follow.

Asked about the apparent contradiction between demanding honesty and using informants, an academy spokesman said: “A cadet has the responsibility to not only live by the honor code, but report those who don’t.”

Many people would find snitching on classmates shady, Thomas said. But he saw it differently. All cadets pledge to uphold academy rules. But some of his fellow cadets, who might someday lead the Air Force, seemed to have little respect for the pledge.

“I took that very seriously,” he said. “If we are not accountable to that standard, who is? But it was hard. You had to choose between your friends and what’s right.”

What tipped the balance for Thomas was a friend who had been sexually assaulted. He said he had watched her struggle when the investigation ended in a “he said, she said” stalemate. A confidential informant might have helped.

Thomas agreed to help OSI.

Agents made him sign non-disclosure papers and told him he could be thrown in a military prison if he talked about his work. He could not even tell his commanders, they said. OSI would notify them instead. As Thomas left that life-changing meeting with OSI, he remembers the agent saying, “Wait to be contacted. And remember, don’t tell anybody.”

Thomas worked his way in with the party kids, troublemakers and other cadets OSI called “targets.” OSI gave him training on how to pass himself off as one of the “bad crowd.” He got close with football players who OSI knew were the focus of several confidential sexual assault accusations. He became tight with a guy from the sky diving team who OSI thought was selling marijuana.

Some cadets, he discovered, kept secret houses in Colorado Springs where they could store motorcycles, throw keggers, hook up with the opposite sex and do other things forbidden on base. He said he started going to house parties almost every weekend, taking photos on his phone, writing down addresses, and noting who was doing what.

“I’m not going there getting hammered, just hoping I’ll see something. I went with a specific intent,” Thomas said. “I’m blending in, not getting drunk, not flirting, just watching.”

He would call OSI to report his findings.

Then Thomas got a new handler late in 2011 and, he said, things got “much more intense.”

afa text boulder house

Thomas started getting texts several times a week from someone called “Briana”:

“Call me as soon as you can.”

“Doing an op tomorrow, call me.”

“Meet me in the bx parking lot.”

“Be sure to keep me updated.”

Briana was actually a stocky blond with a thin beard and glasses named Special Agent Brandon Enos.

Enos texted several times a week, sometimes late at night, telling the cadet to meet at a remote parking lot behind the academy’s B-52 bomber or some other secluded location, Thomas said.

Enos would be waiting in an unmarked black Dodge Durango to drive Thomas off base. OSI reports obtained through the Freedom of Information Act show Enos would discuss findings, plan strategy, and tell Thomas what to do next. At one point, before a planned drug buy, Thomas said, Enos pulled out a pack of cheap cigars and showed him how to roll a blunt and appear to smoke it without inhaling.

“The whole time I was like, ‘OK, I’m getting told how to roll a blunt by a federal agent; this is a different cadet experience that is not in the brochure’,” Thomas said.

Torres said Enos was also her handler.

Enos did not respond to requests for comment sent to an email address he used to communicate with Thomas.

Informing took a toll. Thomas said he often would not get back from meetings until after midnight, leaving little time to do homework. His grades dropped and he was put on academic probation. Because of the company he kept, he said he got a bad reputation.

“My chain of command thought I was a dirt bag who didn’t care about the rules, when the truth was the opposite,” he said.

Worst of all, he said, was not being able to tell anyone the truth. In college, when most young adults are forging their identities, his identity was a forgery.

“I’m running in all these different cliques, trying to be different people. It’s lonely, very lonely,” he said. “You put on so many faces that after a while you forget your own.”

The effect this large-scale deception can have on the informant is perhaps the most troubling aspect of the practice, said Martin Cook, a professor of military ethics at the U.S. Naval War College, who taught for years at the academy.

“Is it appropriate for OSI to use these methods in the Air Force? Yes, I think so. It may serve a greater good,” he said. “But is it appropriate to recruit young people into this at a key time when they are trying to form their morality? That could certainly cause problems the rest of their lives. That’s a harder question.”

Thoman, Stephan Claxton and fellow cadet

OSI wanted Thomas to get in with a cadet named Stephan Claxton, Thomas said.

Four female cadets had reported being sexually assaulted by Claxton, Thomas said, but the reports were made using a confidential reporting system designed to protect victims, so the Air Force could not use them to prosecute.

Instead, they used Thomas.

“The idea was to track Claxton,” said Thomas. “We know he gets drunk and does this stuff. He’s a time bomb. It’s only a matter of waiting until he does it again.”

Nov. 5, 2011, was a Saturday. That evening, Claxton went out with a bunch of friends, including a civilian woman engaged to a cadet at the academy. Thomas was not allowed to leave base that weekend, but, he said, OSI urged him to tail Claxton, so he broke the rules and tagged along.

The group went drinking in downtown Colorado Springs. What happened next is according to testimony in the court-martial that followed.

The woman got drunk and passed out in the car they were riding in. No one knew where she lived, so the cadets took her back to the academy to find her fiancé.

At about 2 a.m., Claxton, a basketball player who had been out with them, and Thomas carried her down the empty dorm hall and put her in Thomas’ bed.

A drunk female passed out in the room could get them busted, so they went to find her fiancé and have him take her home.

Unbeknownst to them, Claxton stayed behind and locked the door.

Another cadet who had been out with them returned to the room and tried the door.

“Eric, why is your door locked?” he whispered to Thomas, who had started walking down the hall.

Thomas wasn’t sure.

He went back and knocked. After about a minute, Claxton opened the door a crack and asked what they wanted, then started to close the door.

Thomas realized what might be happening and pushed his way in. They found the woman, still passed out, with her shirt up and pants undone.

A fight broke out.

Other cadets who heard the noise burst in. Some pulled Claxton off Thomas. Some carried the woman to another room. Thomas fled and called his commander from down the hall.

Claxton was charged with sexual misconduct and sentenced to six months behind bars. The other cadets, including Thomas, were punished for the other infractions, including sneaking off base and having a female in the dorm.

Thomas said he assumed he would be protected by OSI.

He wasn’t.

Air Force records show the Academy’s vice commandant knew of Thomas’ OSI involvement and ordered a special hearing officer to privately review the case, saying the normal discipline process was “not the right forum to discuss the more sensitive information.”

It never happened.

Thomas’ squadron commander, who Thomas said knew nothing of his involvement with OSI, recommended expulsion.

Thomas was stripped of rank and restricted to base.

Text messages obtained by The Gazette show OSI continued to direct Thomas to leave base to follow targets, even though he was restricted.

He obeyed.

When the academy found out he was leaving despite his restrictions, commanders were outraged at his contempt for the rules.

“I couldn’t tell them what was really going on. I had signed papers. I just had to stand there and take it.” -Eric Thomas

A cadet discipline board and an officer discipline board blasted him for a “history of disregarding the rules” and a “pattern of bad behavior.” The discipline boards recommended that Thomas be expelled. OSI told him not to worry, he said. They were taking care of things behind the scenes. He just had to keep his mouth shut.

“I couldn’t tell them what was really going on. I had signed papers. I just had to stand there and take it,” he said.

As punishment, the academy gave Thomas 309 demerits — more than 100 more than are required for expulsion. Commanders also ordered him to serve 186 confinements and 94 tours. Each confinement meant two hours of sitting silently in a room. Each tour meant one hour of marching with a heavy rubber rifle in a tight square in the center of campus. Thomas said he spent many weekends in dress blues marching from sunup to well past sundown.

The discipline board recommended that Thomas be expelled. OSI told him not to worry, he said. They were taking care of things behind the scenes. He just had to keep his mouth shut.

OSI targeted football players suspected of drug use, including star tailback Asher Clark. (Gazette file)

Operation Gridiron

Thomas’s work with OSI didn’t stop when he got in trouble. It intensified.

Phone records and OSI documents show he was in constant contact with OSI in the winter and spring of 2012.

OSI wired him up to record parties, he said. It had him delve into suspicions that football players got special treatment from professors, and gave him pens and lighters that were actually recording devices to take on drug buys.

He was pivotal in a major bust that made headlines and led to the expulsion of one of the football team’s star players, he said. OSI called it Operation Gridiron.

At 5 a.m. Jan. 12, 2012, academy officers swept into the dorms, banging on the doors of about 50 cadets, confiscating their phones and ordering them to get dressed, and report immediately to OSI.

It was the first phase of an operation to bust cadets using information gathered by Thomas during the previous year, Thomas said.

They had planned the operation for weeks and even made Thomas take a polygraph test to ensure his information was accurate, OSI records show.

The main target was a group of about 10 football players thought to be involved in drugs including the star tailback. OSI also brought in a handful of suspected partiers from the basketball team, soaring team and sky diving team. But most of the cadets called in had done nothing wrong and were simply there as decoys, Thomas said.

Thomas sat in the group wearing a hidden recording device.

asher clark mug

Over the next 11 hours OSI agents took cadets one by one from a waiting room to interrogation rooms, using information from Thomas to get confessions. One of them was a former fullback named Ryan Williams, Thomas said. Agents told Williams that his teammate Asher Clark, the team’s star tailback, had already told OSI that Williams had smoked spice at a party. OSI seemed to know every detail down to what he had been wearing the night of the party. Seeing he was caught, Williams confessed, then implicated Clark, Thomas said.

In fact, Clark had said nothing to OSI. The information had come from Thomas, who had been at the party.

Next, agents interrogated Clark and did the same thing. Clark confessed and implicated Williams.

Back in the waiting room, the two players started yelling and shoving one another, Thomas said, furious that they’d sold each other out.

Clark, Williams and five other cadets were kicked out or left the academy as a result of Operation Gridiron. Others were disciplined.

“My freshman roommate got wrapped up in it, too,” Thomas said. “He was caught with a house off base and almost kicked out. That really sucked, seeing a friend get in trouble and knowing I had a part in it.”

 

Terminated

Thomas testified at the court-martial of Claxton, who was convicted.

Documents show he also fed information to OSI that led to the 2013 sexual assault conviction of another cadet, linebacker Jamil Cooks.

“Those were the first convictions for sexual assault at the academy since 1997,” Thomas said. “What we were doing was working.”

Cadets with as many demerits as Thomas are kicked out in a matter of weeks. But Thomas kept going to classes through the spring and summer of 2012. Officially, he was told a computer crash had delayed his expulsion. Privately, he assumed OSI was helping behind the scenes.

At the end of August 2012, Thomas’ case went to a closed hearing with the vice commandant and other leaders — the final stop on the way to expulsion.

“I will come speak on your behalf about Claxton,” his handler texted a few days before the meeting. “You need people to see the positive and not hone in on negative.”

With this assurance, Thomas arrived in dress blues at the commandant’s office, ready to finally have someone explain his work.

He looked around the room. His handler was not there.

Thomas sat down and waited.

“Are you still coming?” he texted.

The agent never showed up.

Thomas went into the hearing alone.

“I got completely destroyed in there — perceived as a cadet who doesn’t know right from wrong, with no foundation of integrity, the polar opposite of what I have tried to be,” he said. “And I could say nothing.”

The board voted unanimously to expel him.

Thomas texted and called OSI during the next few days but agents stopped responding.

In one of the last texts Thomas sent to his handler, he wrote: “Is everything OK?”

No response.

Files obtained through the Freedom of Information Act show OSI “terminated” Thomas on Sept. 10, 2012, because he “no longer had access to targets.”

“He was instrumental in drug investigations and sexual assault investigations. His reward was for OSI to abandon him.” -Skip Morgan, Eric Thomas’s attorney

Thomas eventually realized he was on his own. Desperate to prove his case, he requested his case records from OSI through the Freedom of Information Act. OSI said there were no records. He requested them again and got the same response. Nine months later, after a third request from Thomas’ congressional representative, Randy Neugebauer of Texas, OSI released 86 pages detailing the cadet’s deep involvement with OSI. By that time, though, Thomas had been kicked out of the academy.

“They lied to him. They lied when they said they would be there and they lied when they said there were no records,” said Skip Morgan, the former OSI lawyer who became Thomas’ attorney.

In the letter to the superintendent in April, Morgan said text records clearly show Thomas was working for OSI on the days he was being punished for sneaking off base, adding, “He was instrumental in drug investigations and sexual assault investigations. His reward was for OSI to abandon him.”

The academy did not reply.

Morgan, a retired colonel, told The Gazette that in his years representing Air Force cadets he has never seen such a case.

“This is a young man who really tried to do the right thing. It takes tremendous moral conviction. And they left him in the lurch,” he said. “They lied to him on several occasions. I thought that was shabby. I don’t care who hears that, it was shabby treatment unbecoming of a commissioned officer.”

Informants are a useful tool for the Air Force, Morgan said, but they must be treated fairly.

“If you don’t treat them fairly, you are not going to have informants. Word gets out real fast; don’t trust OSI,” he said.

The types of abuses Thomas describes are common in informant systems because there is almost no oversight, said Alexandra Natapoff, the Loyola professor, who is author of the book “Snitch: Criminal Informants and the Erosion of American Justice.”

The deals that law enforcement makes with informants lack the checks and balances of the rest of the American justice system, she said. “All kinds of things happen without public scrutiny: lying, corruption, and continued criminal behavior.”

Informants can be abused or lied to with little recourse, she said because law enforcement “holds all the cards. And in the end it’s the law of the jungle.”

Another concern, she said, is that informant programs tend to disproportionately target minorities and poor people with less access to legal defense.

The four Academy informants The Gazette identified are Black or Hispanic.

Once Thomas realized OSI had cut him loose, he started telling anyone who would listen — his squadron commander, his master sergeant, his group commander, the vice commandant of culture and climate, the deputy commander, even his mother.

His mother, Rosita Perez Walker, was furious OSI had used her son as an informant.

“These kids are so young, so naive,” she told The Gazette. “They have been trained to obey orders. They are taught how to eat, how to sit, how to walk, everything. You say jump, they jump. To expect them to have enough judgment to question federal agents?”

She called OSI’s central office in Virginia to complain.

Soon after, Thomas got a call from his OSI handler, saying he wanted to meet at the OSI office and sort things out. When Thomas arrived, he said, the handler was not there. Instead, he said, the OSI detachment commander, Lt. Col. Vasaga Tilo, took Thomas in an interrogation room and yelled at him, warning him to keep his mouth shut.

afa vasaga tilo crop

In an interview with The Gazette, Tilo refused to talk about the confidential informant program, other than to say, “We use informants in the same way any other law enforcement does.”

Thomas kept talking.

Randy Neugebauer and John Thune both ordered Congressional inquiries.

John_Thune,_official_portrait,_111th_Congress

He told Rep. Neugebauer. He told Sen. Thune of South Dakota. Both ordered inquiries. The Air Force responded to Neugebauer in June, saying that Thomas had worked as an informant, but not until after he got in trouble in his dorm room — a year later than Thomas claims. At no point, OSI said, was Thomas “directed or influenced in any way to break any rules.” The Air Force responded to Thune in August, saying while there were what it called “administrative errors” in Thomas’ dismissal, the academy “stands by their decision that disenrollment is both appropriate and in the best interest of the Air Force.”

Thune then sent a letter to the secretary of the Air Force and the superintendent of the academy in September, asking them to meet with Thomas. Thomas has not heard from either.

Despite OSI’s claims to a Congressman that it told Thomas to keep clean, OSI documents clearly show agents repeatedly directed Thomas to sneak off base to go after targets and buy drugs while lying to commanders to cover it up.

While his expulsion was pending, Thomas kept going to class, hoping things would work out. He was accepted to Air Force pilot school and looked forward to flying after graduation.

He was kicked out of the academy in April, six weeks before graduation.

He no longer thinks the process took so long — 16 months from when he got in trouble — because OSI was working back channels to help him. Now he thinks he was strung along so he could work longer as an informant.

On his way out of the academy, Thomas got a tacit acknowledgement of his work. Cadets expelled in their senior year typically must repay almost $180,000 for their education. Thomas does not.

“Someone did him a favor,” said his lawyer. “Someone realized what he said was true and tried to repay him to some extent.”

Betrayed

Thomas moved back in with his family in South Dakota. He has appealed to the office of the Secretary of the Air Force, Eric Fanning, saying he was wrongfully dismissed. He is waiting for a response. In the meantime, he helps disabled children, mentors the youth group at his church, and does odd jobs for neighbors.

Only about half of his academy credits will be accepted at other schools, so he may have to repeat years of college, but he can’t apply to other schools because he remains in the Air Force until the matter is settled.

“In the meantime, I’m in limbo,” he said.

Looking back at the three-year ordeal, he is angry. He is angry because he loves the Air Force and feels betrayed by how OSI treated him. And angry because he knows that OSI is probably recruiting new informants it can later toss aside. Most of all, he said, he is angry the academy is allowing it to happen by failing to create guidelines for the treatment of cadet informants and adequately tracking the system.

“It needs to change,” he said. “I am not saying people shouldn’t work for OSI. We did a lot of good work. But they need protection. They need guidelines. Someone needs to be watching this. Otherwise, look what happens.”

—

By Dave Philipps

dave.philipps@gazette.com

The Gazette

Gazette reporter Tom Roeder contributed to this report.

Contact Dave Philipps

dave.philipps@gazette.com

LT. GEN. Michelle General Johnson, the top general of the Air Force Academy, said Wednesday, 4 December, that the use of confidential cadet informants (CI) at the academy has ceased for the time being and vowed to oversee “any operations involving cadet confidential informants” in the future.

But many academy graduates and parents are voicing concern that the academy stands by a practice they see as corrosive to the institution’s core values of trust and honesty.

As previously stated the Air Force uses a system of cadet informants to spy on other cadets. The students are instructed to inform on classmates, professors and commanders while helping the Air Force Office of Special Investigations gather information on drug use, sexual assault and other cadet misconduct.

Honor and deception: A secretive Air Force program recruits academy students to inform on fellow cadets and disavows them afterward

It is unclear how many informants operate among the 4,400 cadets, but informants say their efforts have helped lead to several high-profile convictions and expulsions.

In a letter to graduates Lt. Gen. Michelle Johnson defended the confidential informant program as “vital” and pledged her personal oversight.

“The CI program has rarely been used at USAFA, and when employed it is deliberate, judicious and limited to felony activity; there are no ongoing operations,” she wrote in her letter. “I will exercise oversight of any operations involving cadet confidential informants.

Air Force Academy defends use of student informants, challenges reliability of ex-cadet

“Many of you have voiced concerns regarding inconsistencies between a CI program and the Cadet Honor Code. I want you to know that the chain of command does not condone lying, cheating or any violation of the Honor Code in support of CI investigations.”

She was scheduled to address the Association of Graduates board of directors about the issue on Friday, 6 December, at their office on the academy grounds.

Some parents and graduates say the academy has not addressed the key issues surrounding the secret informant program. In various Internet forums, they noted that the academy’s statement defending the program Tuesday focused on trying to discredit Eric Thomas, one of the cadets featured by The Gazette in it’s groundbreaking expose’ of the story.

(Former Air Force Academy Cadet, Eric Thomas says he was used, abused, and abandoned.)

“They are missing the point,” said a parent who did not want to be identified because he feared it could affect his cadet’s career. “They went after Thomas but never addressed the merits of the program. They are just trying to kill the messenger.”

Cadet First Class Eric Thomas was expelled this spring, weeks before graduation, for misconduct he said was incurred in the service of OSI.

The parent said larger issues need to be discussed. “And they have yet to address how it affects the cadet culture.”

He said most parents he has spoken to are concerned, and cadets are “deeply dismayed.” He added that he was not assured by Johnson’s statement that there are no “ongoing operations.”

Air Force officers, graduates of the Academy,  posting on Internet forums were generally critical of the program.

One local graduate said in a group email, which included several current and former top Air Force commanders, that the Academy’s response ducked the main controversy.

“Is USAFA, or the OSI at USAFA, asking some cadets to do things that are inherently against the principles of honor and integrity that were ingrained in us when we were at USAFA?” said the email. “We need to know what OSI did or did not do in this case. I believe this is too big to trust to the USAFA leadership.”

January 15, 2014. Now Hear This! Further developments in the USAFA scandal.

 

WASHINGTON — Members of Congress are sharply criticizing a recently revealed program to recruit U.S. Air Force Academy cadets to serve as informants on other cadets suspected of drug use and sexual assault.

“I’d just like to go on the record as saying I don’t see how being an informant is compatible with living out the honor code,” said Rep. Doug Lamborn, a Colorado Republican who represents the Colorado Springs congressional district where the academy is located.

“I think we need to take a hard look about whether this is appropriate for an academic institution, because after all, you are an academic institution,” said Rep. Niki Tsongas, D-Mass. “This raises to me a lot of questions that are very hard for you to explain.”

Lamborn and Tsongas serve on the Air Force Academy’s (USAFA) Board of Visitors, a 15-member oversight board that held a special meeting Tuesday on Capitol Hill in response to the controversy. The informant program was first reported by the Colorado Springs Gazette on Dec. 1.

The Gazette highlighted the case of Cadet Eric Thomas, who said he was recruited by the Air Force’s Office of Special Investigations after being suspected of attending an off-campus party at which drugs were used. Thomas agreed to serve as an informant on fellow cadets, but told the paper he became increasingly uncomfortable that he was being asked to disobey academy rules in order to get closer to his targets.

STORY: Reports of sexual assault dip at military academies

When Thomas was brought up on disciplinary charges, the OSI agents disavowed the operation and Thomas was expelled, the Gazette reported.

Lt. Gen. Michelle Johnson, the USAFA Superintendent, and Brig. Gen. Gregory Lengyel, disputed that version of events Tuesday. They said Thomas already had enough demerits to be expelled before he was recruited, and that his expulsion was for disciplinary and academic reasons unrelated to his work as an informant.

STORY: Air Force Academy gets 1st female superintendent

Academy commanders also defended the informant program, saying it was used rarely and was always subject to the oversight of the academy’s top brass. While Johnson said she couldn’t imagine a situation where she would approve the use of an informant in the future, she said she couldn’t rule it out as a tool to investigate serious offenses. And she noted that the legalization of marijuana in Colorado could pose a challenge for the academy, where any drug use on or off campus is still a violation of Defense Department regulations.

Johnson said the Air Force is investigating whether Thomas’s OSI handlers acted appropriately, and a report is expected by the end of the month. She conceded that the affair had given the academy was a black eye, but said the Air Force was constrained by privacy laws from defending its actions more vociferously.

“We’ve revealed a lot here that the general counsel is not going to be comfortable with,” Johnson said. “If you want to go point counterpoint, it has to be in a public forum. I agree with a free press, but it’s not always a 100% accurate press.”

 

 

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Leaving Under a Big Cloud of Suspicion

Posted on July 15, 2013 by Judge London Steverson
Janet Napolitano, secretary of the Department ...

Janet Napolitano, secretary of the Department of Homeland Security, speak about the National Guard (Photo credit: The National Guard)

Homeland Security Secretary Janet Napolitano suddenly announced last week that she was resigning her position at the embattled agency in order to take a $750,000-a-year job as president of the University of California system.

I only wanted one thing from her and that was to grant clemency to former Coast Guard Academy Cadet Webster Smith. Considering her nature, it was highly unlikely that she would even consider the matter.

The timing of her resignation is highly unusual for a member of the president’s cabinet. Most cabinet members who leave after a president’s first term don’t wait an extra six months into the second term. Many believe she abruptly left DHS because of some sordid dealings that are about to be discovered. Her tenure at DHS has been characterized by back-to-back lawsuits and multiple controversies regarding the agencies DHS oversees, which include the TSA, ICE, U.S. Customs and Border Protection, U.S. Citizen and Immigration Services and FEMA.

Napolitano was tapped by former President Bill Clinton for U.S. attorney after she came to public prominence as an attorney representing Anita Hill against Clarence Thomas at his judicial confirmation hearings, where Hill accused the married Thomas of sexually harassing her. In his book, The Real Anita Hill, David Brock documented how Napolitano put a witness on the stand who wasn’t corroborating Hill’s version of the facts, so Napolitano took her off the stand and had her return and claim amnesia. After leaving the U.S. attorney’s office, Napolitano became state attorney general, where her only memorable accomplishment was banning Christmas decorations from the public areas of the office, which received national attention and protest.

As DHS chief, Napolitano failed to secure the borders. During her tenure, DHS implemented a widespread policy of allowing department lawyers to selectively determine which illegal immigrants to pursue for deportation, and which to let go. ICE agents accused her in a lawsuit of failing to properly enforce immigration law over it. Napolitano also enacted a Dream Act-style policy giving young illegal immigrants a reprieve.

Arrests of illegal immigrants went up under Napolitano, evidence that more were sneaking across the border. Arrests increased by 13 percent between April 2009 and 2010, according to figures released by Customs and Border Protection. Rep. Jason Chaffetz, R-Utah, criticized Napolitano for not releasing numbers while claiming the border was more secure. “There is no statistic, metric or evidence that the border is more secure than ever. I went out there for a couple days and found multiple spots where you can see trails of people coming in. They were still apprehending massive amounts of drugs out there, this is a very porous border,” he said.

Nonetheless, Napolitano declared with a straight face in March of 2011 that our border “is better now than it ever has been” and violence has not spilled into the United States.

This comes as no surprise to Arizonans, who saw Napolitano veto seven bills as governor aimed at curbing illegal immigration. Known for once saying, “You show me a 50 foot fence, I’ll show you a 51 foot ladder,” she maintained her opposition to border fences while at DHS.

Her record on terrorism at DHS has been dismal, as the Boston Marathon Bombers were able to kill three people and injure 264 more during her tenure. Many at DHS believe that Napolitano “checked out” on the agency ever since her stunning comment regarding a terrorist with a bomb aboard a plane in December 2009, where she asserted, “the system worked.” Investigations later revealed gaps in the vetting of airline passengers and security screening overseas. Napolitano also came under criticism for referring to the attempted bombing in Times Square as merely a “one-off.”

In July 2012, a lawsuit was filed by an ICE employee against Napolitano, alleging discrimination against male staffers within DHS. The suit asserted that two of Napolitano’s top female staffers mistreated male employees, and that promotions were given to women who were friends of Napolitano. Furthermore, the suit alleged, when a complaint was filed with the EEOC, Napolitano launched a series of investigations against the whistleblower. One of the top female staffers eventually resigned, and nothing else appears to have been done.

Napolitano spent more time during her tenure at DHS targeting innocent U.S. citizens than protecting Americans from threats, earning her the nickname “Big Sis” from the Drudge Report. DHS started buying up hundreds of millions of rounds of ammunition, making ammunition scarce for Second Amendment-supporting gun owners. DHS claimed it was for ordinary target shooting practice, but much of the ammo consisted of hollow points, ammo that is generally reserved for lethal use since it is more expensive and destructive.

She implemented invasive body scans at airports under the Transportation Security Agency, which she forced to retract in May after public outrage. In March, it was discovered that DHS was collecting the private phone and internet records of Americans from telecommunication companies without their knowledge.

Sen. Jeff Sessions, R-Ala. sums up Napolitano’s record at DHS the best, “Secretary Napolitano’s tenure at the Department of Homeland Security was defined by a consistent disrespect for the rule of law,“ he said in a statement.

Napolitano is a poor choice to lead the University of California system, a position usually filled by an academic, not a highly partisan politician. Of course, the left preserves a revolving door for its elites between academia and politics. Napolitano has no advanced degree other than a law degree. One of the California regents, Sherry Lansing, slipped up and admitted, “some may consider her to be an unconventional choice.”

While many are pleased she will no longer be able to run rampant at DHS, or come back to Arizona, some in California aren’t happy about her moving there. “University of California students can look forward to the same authoritarian management style Secretary Napolitano brought to the Department of Homeland Security, hardly a bastion of free speech and open government,” said Rep. Doug LaMalfa, a California Republican. “While I am pleased to see her leave Homeland Security, Napolitano’s views are entirely incompatible with the UC system’s history of civil liberties and the decision to appoint her is perplexing.”

Napolitano is an extremist zealot who will stop at nothing to achieve her progressive agenda and stamp out conservatism. The California university system has undergone $1 billion in cuts over the past five years, resulting in tuition hikes, class shortages, furlough days and hiring freezes. Putting someone as disastrous as Napolitano in charge of a system on the verge of collapse should ensure its destruction, or at least turn it into something so politically correct that people make fun of it, such as what has happened to Wellesley College. The University of California school system should be very, very afraid.

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Obama’s Comments On Military Sex Abuse Constitute “Undue Command Influence”

Posted on June 16, 2013 by Judge London Steverson

Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court week of June 10.

Navy Judge CDR. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes.

On Wednesday and Thursday, Fulton approved the pretrial defense motions, which used as evidence comments that Obama made about sexual assault at a May 7 news conference.

The judge’s pretrial ruling means that if either defendant is found guilty, whether by a jury or a military judge, they cannot receive a bad conduct discharge or a dishonorable discharge. Sailors found guilty under the Uniform Code of Military Justice’s Article 120, which covers several sexual crimes including assault and rape, generally receive punitive discharges.

“A member of the public would not hear the President’s statement to be a simple admonition to hold members accountable,” Fulton stated. “A member of the public would draw the connection between the ‘dishonorable discharge’ required by the President and a punitive discharge approved by the convening authority.

“The strain on the system created by asking a convening authority to disregard [Obama’s] statement in this environment would be too much to sustain public confidence.”

The ruling sets the stage for defense attorneys to use the same arguments in sexual assault cases throughout the military.

Should other judges accept the same line of reasoning, commands would have to consider issuing lesser administrative discharges to servicemembers found guilty of sexual assault. In some cases, this could allow servicemembers found guilty of sex crimes to retain veterans benefits, according to Defense Department regulations.

“I think that as a defense attorney, I would raise this argument in virtually any [sexual assault] case I had,” said Victor Hansen, vice president of the National Institute of Military Justice and former instructor at the Army’s JAG school.

 

President Barack Obama said that he has “no tolerance” for sexual assault in the military, comments made in the wake of a new Pentagon report showing the instances of such crimes have spiked since 2010.

The president said he had spoken today with Defense Secretary Chuck Hagel to urge him to “exponentially step up” efforts to identify suspects in assaults, and aggressively prosecute those cases.

“The bottom line is: I have no tolerance for this,” Obama said at a press conference following his meeting with South Korean President Park Geun-hye.

‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”

(…)

“For those who are in uniform who’ve experience sexual assault, I want them to hear directly from their commander in chief that I’ve got their backs,” the president said. “I will support them. And we’re not going to tolerate this stuff, and there will be accountability.”

What constitutes “undue command influence” is, at least in part, established by Article 37 of the Uniform Code of Military Justice:

(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel.

The operative question here is whether the comments by President Obama and others in the chain of command, which based on how they are set forth in the opinion seem to be little more than generalized statements about the need for increased vigilance against sexual assault in the military constitute an attempt to “coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”  In his ruling, the presiding Judge found that there was sufficient reason to believe that the President’s insistence that members of the military who have engaged in sexual assault should be “prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged” constituted at least potential undue influence over the sentencing phase of the hearing in the case before him. Consequently, he ruled that if the Defendant is convicted, the military jury would not be able to impose a dishonorable discharge or similar punishing upon him. As noted above, this would potentially mean that the Defendant would remain fully eligible for all veterans benefits despite having been convicted of a crime while in the military.

I don’t have the expertise in military criminal law to comment on the Judge’s decision here, however the immediate consequences of his ruling. Defense attorneys representing members of the military facing similar charges will without a doubt file similar motions in the cases they are involved in, and we’re likely to get contradictory rulings on the matter from the presiding Judges in each of those cases. Additionally, the ruling in these cases will likely end up being appealed, likely before the trial actually starts. As for the President’s statement itself, I can’t help but think that the Judge got it wrong here. On it’s face, what the President said struck me as a general, benign, statement regarding future policy and the message that the Commander in Chief wishes the military to take the issue of sexual assault far more seriously than it has been. Is that “undue command influence?” As I said, I’m not an expert in this area so I’ll leave that to others, but it does feel to me like the Judge went a little over the top here. I suppose we can be grateful that he didn’t dismiss the cases completely.

On a general level, though, this case does point out the importance of the White House in general, and the President specifically, not getting involved in criminal investigations and prosecutions that occur under his watch, whether in the civilian or military spheres. Recently, for example, the White House has been criticized for not commenting directly on the Justice Department’s investigation of leaks that includes pursuing information from journalists using subpoenas and search warrants. There has also been a lot of criticism directed at the White House from the right for it failure to officially designating the November 2009 Ford Hood massacre as a terrorist act, and that Major Nidal Hasan continues to receive his military pay while awaiting trial on those charges. In both cases, the White House has pointedly refused to comment on the cases at hand, and that was entirely the appropriate reaction. Specific comments from the President regarding guilt or innocence of a Defendant would be highly inappropriate and would likely result in defense attorneys moving for mistrials at any criminal proceeding. The comments the President made here, of course, were not about a specific  case, but this ruling is a pretty good reminder of what could happen if Presidents started bending to the demands of reporters or political opponents that they make comment on such matters.

 

Categories: Military Justice | Tags: , , , , , , , | 1 Comment

Military Commanders Wake Up To Broad Reach Of Proposed Changes By Civilians To Military Justice Code

Posted on June 10, 2013 by Judge London Steverson
English: General Martin E. Dempsey, USA, 18thC...

English: General Martin E. Dempsey, USA, 18thChairman of the Joint Chiefs of Staff. (Photo credit: Wikipedia)

English: Kirsten Gillibrand, New York's junior...

English: Kirsten Gillibrand, New York’s junior United States Senator (Photo credit: Wikipedia)

WASHINGTON (AP) — The Uniform Code Of Military Justice (UCMJ) gives American military commanders  substantial power to discipline the troops they lead. However an epidemic of sexual assaults in the armed forces has Congress considering changes to that well established authority.

The big question is by how far and how wide?

Army Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, and the four-star officers atop each service are scheduled to testify June 4th at a Senate hearing on congressional proposals to modify theUCMJ with the aim of staunching the escalating number of sexual assaults that have outraged the military and the public.

Dempsey and other military leaders say they are open to legislative solutions to the problem. But, they are deeply concerned that too drastic an overhaul by Congress will lead to unintended and alarming consequences.

Curbing too sharply a commander’s ability to decide how and when to punish or pardon service members will send a message there is lack of faith in the officer corps, and that in turn will undermine the efficiency and effectiveness of the military in peacetime and war, Dempsey warned in a recent letter to Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee.

Paradoxically, the Defense Department’s failure so far to change the military’s male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

Tinkering at the edges, they argue, won’t produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won’t be discounted and they won’t face retaliation.

The latest in a string of allegations came May 31, 2013.

The Pentagon said the U.S. Naval Academy is investigating allegations that three football team members sexually assaulted a female midshipman at an off-campus house more than a year ago, and a lawyer for the woman says she was “ostracized” on campus after she reported it.

The Naval Academy investigation follows several recent arrests: A soldier at the U.S. Military Academy at West Point was charged with secretly photographing women, including in a bathroom. The Air Force officer who led the service’s Sexual Assault Prevention and Response unit was arrested on charges of groping a woman. And the manager of the Army’s sexual assault response program at Fort Campbell, Ky., was relieved of his post after his arrest in a domestic dispute with his ex-wife.

The Pentagon estimated in a report last month that up to 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2012, based on an anonymous survey of military personnel. While the number of sexual assaults members of the military actually reported rose 6 percent to 3,374 in 2012, thousands of victims are still unwilling to come forward despite new oversight and assistance programs aimed at curbing the crimes, the report said.

Those numbers and outrage over two recent decisions by Air Force generals overturning juries’ guilty verdicts in sexual assault cases are generating support for Gillibrand’s proposal to largely strip commanding officers of the power to toss out a verdict, a change initially recommended in April by Defense Secretary Chuck Hagel and backed by Dempsey, the service chiefs and many members of Congress.

But Gillibrand’s bill goes much farther — too far, according to Dempsey. It would remove commanders from the process of deciding whether serious crimes, including sexual misconduct cases, go to trial. That judgment would rest with seasoned trial counsels who have prosecutorial experience and hold the rank of colonel or above.

Her legislation, which has 18 cosponsors that include four Republicans, also would take away a commander’s authority to convene a court-martial. That responsibility would be given to new and separate offices outside the victim’s chain of command.

“The current system allowing commanders to have sole discretion in the disposition of legal matters is clearly broken and has a chilling effect on reporting,” said Gillibrand, who chairs the Armed Services Committee’s personnel subcommittee. “We must … increase accountability within the system by removing the influence of the chain of command in the prosecution of intolerable crimes.”

In a May 20 letter to Levin, Dempsey said taking away a commander’s ability to convene a court-martial would “radically” alter a principal tenet of military law dating back two centuries and merged more than 60 years ago into a single Uniform Code of Military Justice.

“While Congress has modified the UCMJ from time to time, it has never removed commanders from the military justice system,” Dempsey wrote. “The consequences of such a decision would be far-reaching and extraordinarily damaging to the nation’s security.”

Whether all or parts of Gillibrand’s Military Justice Improvement Act are added to the defense policy bill for the 2014 fiscal year remains to be seen.

But changes are coming. The GOP-led House Armed Services military personnel subcommittee used Hagel’s April recommendation as a starting point and then went further in a bill it approved two weeks ago.

In addition to taking away the authority to reverse courts-martial rulings, the subcommittee voted to establish dismissal or dishonorable discharge as the mandatory minimum sentence under military law for service members found guilty of rape, sexual assault, forcible sodomy or an attempt to commit those offenses. Commanders also would be barred from reducing or commuting the minimum sentence except in situations where the accused substantially aided the government in the investigation or prosecution of another assailant.

The House bill, however, stops short of taking those cases outside the chain of command, as Gillibrand’s bill proposes. Rep. Michael Turner, R-Ohio, who co-chairs the House Military Sexual Assault Prevention Caucus, said the focus should be on preventing sexual assaults, not scrapping central elements of the current military justice system.

The hearing June 4 may indicate how far the Senate Armed Services Committee is willing to go. A final plan will eventually be produced after any differences between the House and Senate are resolved.

Levin has not publicly stated his position on Gillibrand’s proposal but has made clear he is dissatisfied with the Pentagon’s efforts to eradicate what he has described as the “plague of sexual assaults in the military.”

And Sen. Claire McCaskill, D-Mo., an Armed Services Committee member and critic of the Pentagon’s handling of sexual assault cases, isn’t co-sponsoring Gillibrand’s bill, backing instead many of the changes the House panel approved.

McCaskill told reporters last month that she’s not opposed to Gillibrand’s legislation but wants to be sure Congress doesn’t squander a chance to pass a bill because of partisan differences over its scope. “I am tired of trying to legislate around the gridlock in Congress,” she said.

___

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Hard Cases Make Bad Law. Dissatisfaction With One Case, No Reason To Change Military Code Of Justice.

Posted on April 18, 2013 by Judge London Steverson

 

Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany convened a court-martial to try Lt. Col. James Wilkerson III on charges of, among other things, sexual assault of a female, not his wife. Lt. Col. Wilkerson was tried by a jury and found guilty as charged. In performing his duties as Convening Authority under the Uniform Code of Military Justice (UCMJ), Lt. Gen. Franklin set aside the sexual assault conviction.

 

The February 2013 decision ignited a firestorm on Capitol Hill and drew scrutiny to the separate set of laws governing military members, known as the UCMJ. Following his review of the case, Defense Secretary Chuck Hagel proposed removing the convening authority from commanders in major cases.

(He did not specify what he thought would constitute a major case.)

 

Lt. Gen. Franklin defended his decision in a six-page letter he submitted to the service in response to the uproar. He said accusations that his motivation was to protect a fellow fighter pilot are “preposterous.” Accusations that he doesn’t understand sexual assault or take the crime seriously “are complete and utter nonsense,” he wrote. Allegations that his decision was influenced by his previous role commanding a unit the pilot later served in “are equally preposterous,” he wrote.

 

In the letter, Franklin, says he struggled with the decision. However, after he reviewed the evidence, he found the defendant, Lt. Col. James Wilkerson III, and his wife, Beth, more credible than the alleged victim, Ms Kimberly Hanks, who has since come forward publicly to discuss the matter.

Approving the jury’s finding of guilt “would have been an act of cowardice,” Franklin wrote. “I hold a genuine and reasonable doubt that Lt. Col. Wilkerson committed the crime,” he wrote. “My court-martial action to disapprove findings and to dismiss the charges was the right, the just, and the only thing to do.”

 

Wilkerson, then the inspector general at Aviano Air Base in Italy and a former F-16 pilot, was found guilty of multiple charges to include aggravated assault. He was sentenced to a year in prison and dismissal from the service before Franklin overturned the conviction.

 

Ms Hanks accused him of fondling her breasts and genitalia as she slept in his guest bedroom, according to court documents. The two met at a club with groups of friends after a rock concert that was held on base, organized by the USO and featuring the alternative rock band, Seether, according to her testimony.

 

Ms Hanks is a divorcee. She worked as a civilian contractor in the medical clinic on the base. She alleged that she previously did not know Lt. Col.Wilkerson but some how she wound up at his home in Roverado. Ms Hanks said she awoke in a bedroom with Lt. Col.Wilkerson when his wife entered the room, turned on the lights and said: “What the hell is going on?”

 

Ms Hanks testified that the woman then ordered her to, “Get the hell out of my house.”

In his letter, Lt. Gen. Franklin said he was persuaded in part by the many letters of clemency from family, friends and colleagues of the Lt. Col. Wilkersons that “painted a consistent picture of a person who adored his wife and 9-year-old son, as well as a picture of a long-serving professional Air Force officer.”

 

Lt. Gen. Franklin also makes a point to cast doubt on Lt. Col. Wilkerson’s failed polygraph test.

“A polygraph is only an investigative tool to assist in the potential focus of the investigation and/or to attempt to elicit admissions of guilt,” he wrote. “It is not a ‘lie-detector test,’ nor is it ‘pass’ or ‘fail.’ Because of the inherent unreliability of polygraphs, they are entirely inadmissible in a court-martial.”

 

As one would expect, lawmakers and supporters of sexual-assault victims were shocked by Lt. Gen. Franklin’s letter.

 

“This explanation crystalizes exactly why the convening authority should not have the unilateral ability to overturn a jury verdict — and why we need legislation that restricts their ability to do so,” Sen. Claire McCaskill, D-Mo., said in a statement. “This letter is filled with selective reasoning and assumptions from someone with no legal training, and it’s appalling that the reasoning spelled out in the letter served as the basis to overturn a jury verdict in this case.”

 

In light of the case, McCaskill introduced legislation that would curtail the authority of military commanders to dismiss jury convictions against sex offenders.

 

Protect Our Defenders, a nonprofit based in Burlingame, Calif., called for Lt. Gen. Franklin to be dismissed from the military. “Lt. Gen. Franklin made a deeply flawed and inappropriate decision,” the group’s president, Nancy Parrish, said in a statement. “Rather than rely on the credibility determinations of the senior members of the jury he selected, Franklin chose to accept the word of Wilkerson’s supporters.”

 

Lt. Col. Wilkerson will remain on active duty and is being transferred to Davis-Monthan Air Force Base, Ariz., where he will become chief of flight safety for the 12th Air Force (Air Forces Southern), according to Master Sgt. Kelly Ogden, a spokeswoman for the unit. He is expected to arrive later this month or in early May.

 

Defense Secretary Chuck Hagel on April 8 said he would ask Congress to pass legislation that would prevent commanders from overturning convictions without explanation.

In 2011, less than half of the reported 3,200 sexual assaults in the military resulted in disciplinary action, according to the Defense Department. The number of actual sexual assaults each year is probably closer to 19,000, based on anonymous surveys of active-duty service members.

 

 

                       (U. S. Air Force Academy cadets charged with sexual assault.)

 

The number of sexual assaults at military academies has been on the rise. No cadet tried or convicted of sexual assault has had his conviction set aside by the Convening Authority.

Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.

The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.

Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite sim­ilar student populations.

In 44 of the 80 reports, victims said they were victimized by a fel­low cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.

 

 

 

(U. S. Coast Guard Academy cadet, Webster Smith)

A cadet at the U. S. Coast Guard Academy was convicted of sexual assault in 2006. It was the first court-martial of a cadet in the history of the U. S. Coast Guard. Cadet Webster Smith was only six months away from graduating when he was accused, tried, and convicted. He protested his innocence. His case was appealed all the way to the U. S. Supreme Court, but the Supreme Court refused to grant a review of the conviction. Cadet Smith’s petition was dismissed without comment by the Supreme Court.

 

 

 

The Webster Smith Story is an American tragedy. It is not just the story of a Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy. The Webster Smith case was a litmus test for justice in America.

 

                                              (Ariana Klay, former USMC officer)

Lt. Ariana Klay, a U. S. Naval Academy graduate, served as a protocol officer for the U. S. Marine Corps Barracks, Washington, DC. She alleged that while there, she was sexually harassed by a lieutenant colonel, a major and a captain. She said she was gang-raped by a Marine officer and his civilian friend, a former Marine.

Lt. Klay alleged that the Marine officer threatened to kill her and told his friend he would show him “what a slut she was” and “humiliate” her. After she reported the alleged rapes and subsequent harassment, the Marine Corps investigation ruled that she welcomed the harassment because “she wore makeup, regulation-length skirts as a part of her uniform and exercised in running shorts and tank tops.”

The Marine Corps did not punish any of those who were accused of sexually harassing Lt. Klay. One of her alleged harassers was granted a waiver by the Corps that permitted him to get a security clearance despite accusations of hazing and sexual misconduct against not only Lt.  Klay but many others. He was selected to be in a nationally televised recruitment commercial while he was still under investigation.

The Marine Corps finally court-martialed one of Lt. Klay’s alleged attackers but didn’t convict him of rape, instead finding him guilty of adultery and indecent language (a common escape by military courts from the rape charge). The military court ruled that Lt.  Klay “consented” to having sex with the men despite the evidence that the accused threatened to kill her.Lt. Klay has attempted suicide since the alleged rapes and harassment and has been diagnosed with post-traumatic stress disorder.

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Major Concerns Concerning Women In Combat.

Posted on February 5, 2013 by Judge London Steverson

Male Marines listed being falsely accused of sexual harassment or assault as a top concern in a survey about moving women into combat jobs, and thousands indicated the change could prompt them to leave the service altogether.

For a good look at what can happen when a female service member falsely accuses a male service member of sexual assault or rape, read this true story of a court-martial that was appealed all the way to the Supreme Court.

 (http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK)

The anonymous online questionnaire by the Marine Corps surveyed 53,000 troops last summer, with the results provided to Defense Secretary Leon Panetta before he opened thousands of combat positions to women last week.

The Marine Corps released the results to The Associated Press on Friday February 1, 2013.

Among the other top concerns listed by male Marines were possible fraternization and preferential treatment of some Marines.

Respondents also worried that women would be limited because of pregnancy or personal issues that could affect a unit before it’s sent to the battlefield.

Military experts said the results were not surprising because the Marines have the highest percentage of males among the branches of the armed forces.

Former Marine infantry officer Greg Jacob of the Service Women’s Action Network said the Pentagon‘s estimate that 86 percent of assault victims opt against filing complaints “suggests that there’s hardly an overabundance of reports, false or otherwise.”

Some, however, said the survey shows the need for sensitivity training and guidance from leadership so the change goes smoothly, as occurred when the military ended its policy that barred openly gay troops.

“I think there is this sense among what I would imagine is a very small minority of Marines that this male bastion is under siege and this is one more example of political correctness,” said David J. R. Frakt, a military law expert and lieutenant colonel in the Air Force reserves.

Just as the Marine Corps adjusted to the end of “don’t ask, don’t tell,” despite being the most resistant among the military branches, troops will likely fall in line again with this latest historical milestone, said Frakt, a visiting professor at the University of Pittsburgh.

Marine Corps officials did not respond to a request for comment on the survey results.

About 17 percent of male Marine respondents and 4 percent of female respondents who planned to stay in the service or were undecided said they would likely leave if women move into combat positions. That number jumped to 22 percent for male Marines and 17 percent for female Marines if women are assigned involuntarily to those jobs, according to the survey.

Both sexes mentioned intimate relationships between Marines and feeling obligated to protect female Marines among their top five concerns about the change.

Female Marines also said they worried about being targeted by enemies as POWs, the risk of sexual harassment or assault, and hygiene facilities, according to the survey, which did not give specifics.

The women surveyed also expressed concern about acceptance and physical abilities if given a ground combat job.

About 31 percent of female respondents — or 1,558 women Marines — say they would be interested in a lateral move to a combat position as their primary job, and 34 percent — or 1,636 — said they would volunteer for a ground combat unit assignment.

Elaine Donnelly of the conservative Center for Military Readiness and a vocal critic of the change said the survey asked the wrong questions and should have been asking if troops favor it and whether it will make a more effective force.

The questionnaire also relied on the “mistaken belief” that training standards will remain the same, which Donnelly said is not realistic given the differing physical abilities between the genders.

She said the Pentagon is bent on imposing gender-based quotas that will drive down standards. Defense leaders say standards will not be lowered.

“The results that are being put out there are designed to manage public perception,” she said. “There is a lot about this that still needs to be discussed and it’s really not fair to the women who serve out there.”

The infantry side is skeptical about how women will perform in their units, and some positions may end up closed again if too few females meet the physically demanding standards of combat, said Gen. James Amos, head of the Marine Corps, who spoke to reporters Thursday at a defense conference in San Diego.

“I think from the infantry side of the house, you know they’re more skeptical,” Amos said. “It’s been an all-male organization throughout the history of the U.S. Marine Corps so I don’t think that should be any surprise.”

Most Marines support the policy change, Amos said.

It will be up to the military service chiefs to recommend and defend whether women should be excluded from any of those more demanding and deadly positions, such as Navy commandos or the Army’s Delta Force.

Over the past decade, many male service members already have been fighting alongside women in Iraq and Afghanistan. Women who serve in supply units, as clerks and with military police have ended up on the unmarked front lines of modern warfare.

More than 150 women have been killed in wars in Iraq and Afghanistan while serving in support roles.

About 7 percent of Marines are female compared to about 14 percent overall for the armed forces.

Both sexes surveyed said getting women closer to the action will improve their career opportunities.

(Julie Watson, AP)

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Sex Assaults At Military Academies Up 60 Percent

Posted on January 1, 2013 by Judge London Steverson

Sex Assault Reports At Academy Up 60 Percent

Sexual assault reports at the Air Force Academy jumped nearly 60 percent during the last academic year while the prevalence of the crime remained about the same, according to a new Defense Department study.

The results, which mirror the two other service institutions — the Military Academy and the Naval Academy — signal greater victim confidence but show that efforts to reduce sexual assaults among future military leaders have been unsuccessful.

Air Force cadets made 52 sexual assault reports during the 2011-2012 year, up 58 percent from 33 in 2010-2011. They also accounted for 65 percent of the 80 reports made at all three academies, despite sim­ilar student populations.

In 44 of the 80 reports, victims said they were victimized by a fel­low cadet or midshipman, the study said. Twenty-five incidents occurred on academy grounds.

Since sex assault is one of the most under-reported crimes, the military has long relied on an anonymous survey to measure the rate of such incidents, director of the DoD Sexual Assault Preven­tion and Response Office Maj. Gen. Gary Patton said in a news conference with reporters before the release of the report Dec. 21.

Fewer than 15 percent of sexual assault victims in a college envi­ronment report the crime, accord­ing to the study. That number stands at around 11 percent at the service academies.

At the Air Force Academy, far more are making reports — about 28 percent of victims, Col. Stella Renner, vice commandant of cul­ture and climate, said in a tele­phone interview.

“While we hate to see we have sexual assaults, we are very proud we have a strong reporting cli­mate,” Renner said.

That shows cadets feel more comfortable asking for help after they are victimized and that there is increased trust in the system, she insisted.

“We’re seeing cases where vic­tims who have come forward in the past are bringing in other people they know of who may have had a situation they haven’t reported yet. Nobody’s going to tell on you. It’s private. You can start healing and moving on,” Renner said.

Reporting has been on the uptick at all three academies since 2008 and increased by 23 percent overall from the last academic year, Patton said.

“Any sexual assault is bad, and our goal is always to eliminate sexual assault,” he said. “The more we know about the incidents that do happen, the more we can help victims become survivors, [gain] insight into what’s going on” and prosecute perpetrators.

But both Patton and Defense Secretary Leon Panetta expressed concern at what they described as a persistent problem and a lack of progress in combating it.

“There is not enough progress in preventing sexual harassment and assaults,” Patton said.

In a memo, Panetta directed the institutions to find new ways to “integrate sexual assault and harassment prevention into the full spectrum of academy life and learning” and ordered them to report back March 29.

The DoD report followed a year of high-profile sex scandals in the military, from the resignation of CIA director and retired Army Gen. David Petraeus to the inves­tigation of more than two dozen military training instructors at Joint Base San Antonio-Lackland.

There was no statistical increase in incidents of sexual assault at the Air Force Academy from 2010-2011, Renner said. Sexual harass­ment decreased significantly there but remained unchanged at the Military and Naval academies, the study showed.

Victims who did not make a report indicated in the anonymous survey that they took care of the incident themselves, that they did not want anyone to know about it and did not want people gossiping about what had happened to them.

Those who chose to make a report said they needed help deal­ing with an emotional event, that they wanted to stop the offender from hurting others and that they wanted to see justice served.

Reports of sexual assaults fall into two categories: restricted and unrestricted. Unrestricted reports involve law enforcement and the chain of command of the victim and the accused. Restricted reports afford victims privacy while making support services available to them.

Twenty-one of the 52 reports at the Air Force Academy were unre­stricted, Renner said.

She said the academy plans to study each of the reports. “We’ll continue to work and see if there are other things we need to consid­er. We look for trending informa­tion to see if there might be some­thing we can do from a police [change], lights, locks on doors.” Next year, the academy plans to begin bystander intervention train­ing. The training teaches cadets how to identify potentially danger­ous situations and intervene safely.

Teresa Beasley, sexual assault response coordinator at the Air Force Academy, called it “a good way ahead. I think they want to help each other,” she said of cadets. “This will give them the skills to do that.” Beasley said the academy has worked hard to raise awareness around campus. “Whenever you raise awareness, reports go up,” she said. “I consider anyone that walks in a victory.”                   (By Kristin Davis)


Air Force Times
January 7, 2013

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Gen David Petraeus May Still Face Court-martial

Posted on November 29, 2012 by Judge London Steverson

The Army could force retired Gen. David Petraeus back into uniform to face charges if ongoing investigations turn up evidence of an earlier timeline for the start of his affair with Paula Broadwell, military law experts said.

“As a regular officer, you’re subject to court-martial jurisdiction forever,” said Michael Noone, a Catholic University law professor and a retired Air Force colonel and judge advocate general.

“Theoretically, Petraeus would be subject to court-martial for any offenses discovered after he leaves service,” and could be called back to duty to answer for them although the prospect was unlikely.

The most obvious offense that Petraeus could face would be adultery, a violation of Article 134 of the Uniform Code of Military Justice, but adultery charges in the military are rare and rarer still as stand-alone offenses.

 

Petraeus has been as careful in admitting to the affair as he was careless in becoming involved with Broadwell, a West Point graduate and lieutenant colonel in the Army reserves.

http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK

Through former military aides, Petraeus has put out word that the sexual relationship with Broadwell did not begin until after he retired from active duty and became CIA director in September 2011, although she was closely involved with him for several years while working on her book “All In: The Education of David Petraeus.”

And even if proof emerged of a sexual relationship before Petraeus retired, the military would be unlikely to pursue it. “The chances are low, if any, of that happening,” Cave said. “I’m not convinced that would change things dramatically.”

“But if evidence of abuse of status or the misuse of government funds” to further the relationship with Broadwell came to light, “that would be an extraordinary change in the landscape,” Cave said.

The FBI investigation of the affair is still open. It began with a complaint from Florida socialite Jill Kelley to an FBI friend about allegedly threatening emails she was receiving. The emails were eventually traced to Broadwell, who apparently saw Kelley as a rival.

The email trail then led to Marine Gen. John Allen, who succeeded Petraeus as overall commander in Afghanistan. Allen had exchanged a large volume of email with Kelley.

Allen’s nomination as head of U.S. European Command has now been put on hold while the Defense Department’s Inspector General investigates the Allen-Kelley emails, which have been described by a defense official as possibly “inappropriate and flirtatious.”

The Inspector General’s office of the CIA is also investigating whether Petraeus may have disclosed classified information to Broadwell during their involvement.

Despite the ongoing investigations, the consensus of several military law experts was that there was little appetite to pursue a case against Petraeus.

“Sure, in theory he could be brought back into the military, but that’s not going to happen,” said Gary Solis, a Marine Vietnam veteran and a former JAG who is now a professor at the Georgetown University Law Center. “Nobody is going to charge David Petraeus.”

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