

As three officers at Laughlin Air Force Base fight for their livelihoods and professional reputations in the wake of a command-sponsored witch hunt, the Air Force’s Chief of Staff (CSAF), Gen. Mark Welsh, has recently ordered new inquiries into the investigative and command actions that led to their predicament. He did so at least partially at the insistence of Reps. Duncan Hunter (R-CA) and Adam Kinzinger (R-IL), who asked tough questions about the Laughlin debacle in a written complaint and personal meeting with CSAF.

Welsh’s decision to personally order a fresh look was initially seen as a hopeful signal that he might ride to the rescue of airmen caught in the cross-hairs of a group of wayward commanders. But the events of the past few days have thrown considerable water on that idea.

Earlier this week, the Air Force began waging a public relations campaign to shape attitudes and create perceptual latitude, speculatively a prelude to rationalizing the actions of the chain of command in the Laughlin fiasco. Such damage control tactics run contrary to the principle that a pure and objective inquiry into the Laughlin mess is only possible against a backdrop of official silence.

But it’s a subsequent development involving the supposedly impartial CSAF himself that raises more fundamental questions.

In an email titled “Cell Phones,” the existence of which was confirmed to JQP by the Air Staff, Welsh shared his thoughts on the recent coverage of Miley-Gate. His implied rationale for sending the message was to arm commanders for effective communication in the wake of a big story in the media likely to gain their attention.

But what Welsh also also did, unwittingly, was to crystallize that the Air Force’s problems don’t arise so much from communication, but from the deeply flawed reasoning being communicated. Some ideas are bad enough that no amount of spin can save them.

With that, here’s the email’s opening salvo.

—–Original Message—–

From: CSAF Wing Commanders Group

Sent: Tuesday, October 20, 2015 6:42 AM

To: Subject: Cell Phones From: Mark Welsh

Post: Cell Phones

Posted in: CSAF Wing Commanders Group Commanders, We talk about improving communication with our Airmen…here’s one that just hit the press and may generate some discussion.The AF Times ran a story warning Airmen about how their texts could be used against them. Here are some of my thoughts on the issue. We’ve captured the Air Force’s culture and standards in AFI 1-1. We all know 24 hours a day, 7 days a week, on and off-duty, Airmen have signed up to live up to Air Force Standards and Core Values. Through all the different ways in which Airmen communicate and interact, respect and dignity are essential. It doesn’t matter whether it’s in person, by text, twitter, or the latest social media app, we are all personally accountable for what we say and post.

This doctrine, extolled by the Air Force’s most senior officer, offends the Fourth Amendment of the US Constitution, which has been interpreted to mean that citizens are entitled to a reasonable expectation of privacy in certain non-public places and interactions. Welsh takes no notice of that as he enacts a policy that makes airmen subject to a standard of professionalism at all times and in all places. In essence, he’s attempting to argue that by virtue of signing up to defend the United States, airmen have surrendered a Constitutional right.

With respect for Welsh’s decades of dutiful service, he could not be more wrong here. His argument is as radical and irresponsible as it is vacuous. Airmen are still citizens. They don’t surrender basic protections when they join active duty, and in fact cannot give away such protections, which are guaranteed to them by a document that transcends Air Force instructions. Perversely, it’s the very document they’ve each sworn to support and defend with their lives.

I asked the Air Force for clarification on whether CSAF’s email was creating or reinforcing a doctrine by which any private communication would be considered subject to official review according to Air Force Instruction 1-1, which states in expansive and ambiguous terms that:

“[Airmen] must avoid offensive and/or inappropriate behavior on social networking platforms and through other forms of communication that could bring discredit upon on [sic] the Air Force or you as a member of the Air Force, or that would otherwise be harmful to good order and discipline, respect for authority, unit cohesion, morale, mission accomplishment, or the trust and confidence that the public has in the United States Air Force.”

In an email, spokesman Chris Karns responded that “I think what the Chief wrote is clearly stated. The remarks stand on their own. AFI 1-1 also provides relevant guidance. Airmen are expected to conduct themselves in a manner that is consistent with Air Force core values and Air Force standards. This should not come as a surprise to anyone.”

Lost on Karns and the Air Force for which he speaks is that airmen are indeed likely to be surprised — to put things mildly — that their most senior service leader doesn’t see anything wrong with creating a standard that unlawfully abrogates their civil liberties as part of the privilege of defending those rights for others. That it attempts to do so on the basis of vague and subjective assessments of whether a private communication is “offensive” or “inappropriate” makes the service’s casual disregard for civil liberties all the more grotesque.

Reached for comment, Rep. Duncan Hunter expressed concern about the impact Welsh’s doctrine might have on morale. “There’s no way this kind of ‘zero privacy policy’ creates an environment where people will go fight for you.”

His words underscore a key point. It’s a longstanding feature of American life that privacy is a valued and fundamental expression of liberty — something citizens hold dear and guard with the ferocity that should be expected of a freedom-loving people.

Airmen are no different. They have lives, families, relationships, hobbies, interests, and pursuits outside of the Air Force professional domain. Tending to those aspects of their lives means communicating, and being able to do so openly, without fear of unwarranted intrusions by government or their employer. There can be little hope for the future of this once great institution — and nor should there be — if it can only expect to recruit Americans who won’t insist on some reasonable distance from professional scrutiny and some freedom from the subjective application of professional standards to non-professional activity. Even if the service could succeed on such a model, it would be peopled exclusively by servants engaging in closed, guarded communications, and would suffer from the crippling effects on any team that accompany such practices.

It’s not difficult to imagine that everyone — at least everyone with anything worthwhile to communicate — engages in private banter in private relationships using terms and expressions that, starved of context, could be easily misconstrued. When private texts to spouses, friends, and confidants are considered validly subject to official review for their “appropriateness,” virtually every airman is suddenly in disciplinary jeopardy, awaiting only a stroke of bad luck to provide an official predicate for Welsh’s doctrine to kick in and make their private thoughts public.

Congressman Hunter shared his concern by wondering aloud why anyone would choose to serve in an organization where private texts between spouses, for example, could become the business of the chain of command. “If it’s the case that I can’t even text my wife without worrying that someone will see those messages, that’s simply not right,” he said.

The problem is that Welsh’s formulation makes an intrusive and Constitutionally defective model of power-wielding “right” as far as the Air Force is concerned.

But the most unsettling part of Welsh’s message came next:

Airmen don’t have to worry if they’re doing what’s right.

This sounds reassuring, much like “an innocent man has nothing to fear,” or “if she’s not a witch, she’ll float.” But much like those other formulations, this statement must be forcefully repudiated.

The right to be free from unreasonable search and seizure isn’t contingent on “doing what’s right,” whatever that means, which is basically whatever Welsh and his empowered minions decide it means. It isn’t contingent on anything. It isn’t preserved by airmen doing what commanders want them to do. Welsh implies that airmen carry a burden of good conduct in order to preserve their right, and this is exactly the reverse of what is actually the case. Rights, by definition, are not contingent on anything.

Imagine the uproar if President Obama or another high-ranking government official remarked that “Americans don’t have to worry about having their private communications seized by the government if they’re doing what’s right.” Such a remark would be seen as grossly un-American — an attempt to shift the government’s burden onto the citizen. It would be the subject of justifiable outrage. Unless we consider airmen lesser citizens, that outrage necessarily attaches to Mark Welsh’s deeply troubling words.

Airmen have the same Fourth Amendment protection as their civilian counterparts. If the government wants to infringe upon this protection, it carries the burden of demonstrating it more likely than not that an individual has engaged in criminal conduct. Even when it does this, the authorized invasion of the right is limited, and the right doesn’t get dissolved. It is temporarily compromised for a specific legal purpose, and promptly restored when that purpose is served.

In other words, the way it works differs dramatically from the “Welsh Doctrine” as stated here, which implies airmen lose their rights when they misbehave.

This is not just a semantic difference. It’s an alarming window into the mentality of the man with the highest level of legal authority in the Air Force. It’s not that airmen have nothing to fear if they’re doing what is right. It’s that they have a right to privacy unless we can show probable cause they’re doing something criminal. Welsh has his presumption situated in the wrong place, and it calls into question just how fit he and his fellow senior officers are to run a legal system.

This particular statement has a curious relationship with the Miley-Gate scandal as well. Welsh’s statement can be taken to mean that those whose phones were seized in the Laughlin investigations either weren’t “doing what is right,” to borrow his words, or that their commanders violated even the expansive discretion Welsh envisions by seizing their phones even when they were “doing what is right.”

Either way, CSAF is skimming dangerously close to interfering with the supposedly fresh and objective investigations he recently ordered. His words were sent to every wing commander in the Air Force, and will filter downward, in theory, to the force as a whole, including many who stand to either perform or testify in those ongoing probes. Does his statement demonstrate prejudice against the “Molly Three?” They certainly have something to fear, so is he saying they must have not been “doing what’s right?”

CSAF went on to express that:

Our personal computers or cell phones may not be searched without probable cause that a UCMJ or regulatory violation was committed, just like our civilian counterparts. If there is probable cause, then the Air Force requires a search authorization (aka “search warrant”) that can only be authorized by a military magistrate. All of our law enforcement and command actions are governed by and subject to review under our laws and regulations–all of which are based on our Constitution.

There are several more issues here, most glaringly the argument that as long as the Air Force employs a probable cause standard and secures a warrant, it will not have violated the rights of airmen. There are a few reasons why this isn’t true.

Probable cause operates differently in the military services than in civilian life, where it has long been held that an objective arbiter, interpositioned between law enforcement officials and ordinary citizens, must rule on probable cause claims. This preserves the impartiality of such judgments and avoids the conflict of interest that develops when government is permitted to judge the merits of its own arguments as to the validity and scope of a proposed warrant.

In the Air Force (and other services), there is no interpositioned arbiter. The chain of command decides what and who will be investigated and proposes warrants to itself. A member of the same chain of command — almost always a subordinate in the direct reporting chain of the convening authority sanctioning the investigation — “judges” and approves the warrant. The citizen, in this case an airman, has no real hope of an objective hearing on probable cause, because the warrant process has been captured by the chain of command, which has a strong interest in approving the warrants it seeks for itself.

Military magistrates, it should be added, are generally not judges, or even lawyers. Most have had zero or very minimal legal training. The magistrate in the Miley-Gate cases was a support officer whose performance report was the responsibility of the wing commander, Col. Brian Hastings, who by all accounts sponsored and steered the investigations now being reviewed for impropriety. The magistrate would have been telling his boss “no” had he declined to grant the warrants.

All of which is to say that when Gen. Welsh says “just like our civilian counterparts,” he’s leaving out enough reality that it renders his general proposition false.

He’s also willfully sidestepping fundamental contextual differences — things that apply in military life but not in the civilian world. Military commanders play a unique role, serving simultaneously as both employers and law enforcement officials and exercising considerable control over the lives of their subordinates. As Welsh insists, commanders have some sort of authority over the lives of their airmen at all times. This broadens the range of potential instances where observed conduct could give rise to suspicion of criminality if a commander chooses to use his solemn grant of discretion in such a way.

Congressman Hunter, a Marine who served in Iraq and Afghanistan, offered a vignette describing this concept:

“If I’m a company commander and you’re late for formation, that’s really all I need to say I’m suspicious you might have been using drugs the night before. Just like that, I can get a warrant, and just like that, I can review your phone. It’s not something you would ever see in a civilian setting. That’s how susceptible probable cause can be to abuse of discretion in a military environment.”

Hunter’s remarks highlight the need for consistent and careful leader development in the areas of military discipline and law enforcement. The Laughlin situation provides fair grounds to suspect that the Air Force has done a poor job of instilling moderation, prudence, and judgment in commanders who wield determinant legal authority over subordinates’ lives. It’s a problem we’ve seen before in cases of toxic leadership, with the tools of investigation used to condemn rather the find the truth.

Given the example set by Welsh in his email, it’s increasingly obvious why the Air Force continues to struggle with this problem. The boss is getting it wrong, and his minions are going along for the ride.

CSAF closes with:

America’s Airmen are phenomenal. Thank them for their focus on the mission and each other.And my thanks to YOU for leading ’em so well! r/mark

This is the one part of his email free from controversy. Airmen are indeed phenomenal, and they deserve better.

★ ★ ★ ★ ★

This email from CSAF is a missed opportunity. He could have taken this moment to rein in his wing commanders. To remind them that they’re leading intelligent adult volunteers who also happen to be human beings and American citizens. With a few changes, his message could have been one of prudential constraint and responsibly limited power. He could have stated unequivocally that he doesn’t expect airmen to stop being American citizens when they raise their hands to serve, and could have admonished his wing commanders to stay out of the private lives of airmen unless there is clear and reasonably inferred evidence urging otherwise.

But he didn’t. He doubled down, giving wholesale endorsement to the idea that airmen have zero expectation of privacy at any time and are liable for how their private communications stack up against the all-encompassing standard of professionalism in Air Force Instructions. He set forth a doctrine that makes suspected regulatory infractions fair grounds to seek a probable cause warrant and search an airman’s private thoughts, trolling for any liability hook upon which to hang the tools of official condemnation.

Forgot to close the oxygen shutoff valve? Propped your sunglasses up on your head? Walked home after dark without a reflective belt? Used a #3 pencil on a bubble sheet?

If you did any of these, it might have meant you were drunk on duty. Warrant application, warrant approval, cell phone seized, texts reviewed, reprimand issued for private sexual themed text to your girlfriend, removed from promotion list, non-selected for retention at next rollback board. You were never drunk on duty and you were a good airman, but you are finished and scarred, and it was all not only legal, but morally righteous.

This is life under the Welsh Doctrine. He may not have invented it, but he hasn’t done anything to control it, and now he’s making it worse. Thus, he owns it.

★ ★ ★ ★ ★

Gen. Welsh’s email was likely a response to the central theme of the Air Force Times article earlier this week, which essentially warned airmen that a joking or casually worded text message from a private phone could be de-contextualized, evaluated against Air Force Standards, and lead to severe discipline. To say so is accurate, but Welsh seemed to be concerned that having it said so clearly might spook the herd.

But in his attempt to calm the herd, he set out a standard that raises an array of new and more fundamental questions concerning the Air Force’s institutional view of privacy, and whether its policies giving effect to that view are offensive to the Constitution. To that list we can now add questions of morale, recruitment, and retention. Americans won’t sign up for this if they know what they’re getting into.

The bottom line is this: if you serve on Air Force active duty, all it takes for every shred of your private business to become subject to command scrutiny is for someone to accuse you of something, suspect you of something, or mention your name collaterally in a separate investigation.

At that instant, your rights are almost certain to be compromised or outright extinguished by a series of perfunctory formalities subject to command whimsy, and the “professionalism” of your private thoughts may well be evaluated by your boss. He will apply his subjective morality to your substantive and stylistic life choices – or perhaps just your word choice – and have the virtually unchecked freedom to take your livelihood and perhaps even criminally prosecute you on the basis of that subjective judgment.

I wrote earlier this year that the service was devolving into a fascist playpen totally apart from the values it exists to vindicate. This is another signal of that devolution.

So, as much as I hate to say it, perhaps the time has come to be tactical. If you are an airman, be careful with private messages to your spouse or significant other. Be careful with private messages to your friends. Be careful with jokes and pop culture references. Be careful with flirtatious or suggestive language in your private texts, and stay miles away from anything that could be considered discriminatory. These cautions make pop culture essentially off-limits.

Or, alternatively, purchase insurance for your phone and be prepared to destroy it or set up encryption to prevent it from being reviewed without your consent. Guard your private thoughts tactically. It’s clear in today’s environment that once the wrong commander has your private communications, they’ve got the power, self-invented through the free-floating, universal vilification and enforcement tool of an overgrown rulebook, to find you culpable for something that will end your career without the opportunity for meaningful appeal. AFI 1-1 was recently described by an experienced military defense lawyer, with great accuracy, as “part Catch-22 and part Mao’s Little Red Book.” Violating one of its global ambiguities can earn you a career-ending reprimand.

So be prepared to, as Rep. Hunter eloquently expressed when interviewed for this article, to “Tom Brady” your phone in one way or another. “There is no way in hell they would get my phone,” Hunter remarked, repeating something he had told the Chief of Staff personally in their meeting. It’s a sad development that airmen have no choice but to think this defensively and adversarially about their own leaders, who are also, at least in theory, their teammates.

It seems General Welsh isn’t backing away from what happened in the Laughlin witch hunt. He may even be endorsing it. Whatever happens to the “Molly Three,” there remains the question of what the Air Force’s policy will look like going forward. If the “Welsh Doctrine” is any indication, surrendering Constitutional rights and submitting to total behavioral control will become part of the price of Air Force service.

That does not bode well for the future of American airpower, or for Welsh’s legacy.

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