More Background Info
For those of you looking for a bit more info to help draw fair and balanced conclusions... attached below is an email the ex-cadet's lawyer sent out a number of his alumni contacts and associates yesterday. (I received this through another Academy grad, who is also a former JAG.... and have to break it into two posts given it's length.)
____________________________________________________
Fellow graduates and distinguished colleagues,
Looking at this address list leaves me in awe and does me honor. If I could select a group of people whom I respect more I don’t think I could do better. I would like to add my thanks to John in speaking up on this matter. I have been largely silent to date other than what Eric has released, and I want to do nothing that could possibly prejudice him. But I do want to set the record straight.
People who know me know that my love for the Air Force and for USAFA is genuine and enduring. I’ve no wish to trash either. I am a graduate myself (1972), as is my second oldest son, (2005) who is on active duty at this writing. By the same token, I have an obligation to my client and to the truth. What follows is my best recollection of events prompted by a rather large stack of documents. If there are failings or inaccuracies, they are mine and mine alone. My memory is not merely imperfect, but probably doesn’t even make the curve.
For the last several years our Academy has faced a near herculean task of trying to do something about sexual assault, illegal drug use (especially Spice), and underage drinking. In doing that, they must face the reality that abuses such as this can and often do occur inside closed, tight-knit, sub-communities within the Academy—intercollegiate teams (recall the Wrestling team honor scandal in 1972), and yes, ethnic communities, and sometimes both.
They also have to take on what may well be an appreciable number of cadets to whom loyalty to class and classmate trumps all. Shortly before I retired in 2002 I overheard a first class cadet who had sat on an Honor Board that had convicted a fellow firstie ream out her classmates, with words like, “how can you convict a classmate, ever!” (The evidence of cheating in this case was overwhelming. It was not that particular cadet’s first time before an honor board, either.) She was furious and didn’t care who knew it. What I found so disheartening was not merely what the firstie said, but that she was apparently so certain that hers was the prevailing ethic within her class that she felt at liberty to express it openly.
The toleration clause has always been a matter of some controversy, (recall that Annapolis does not have it) and this is nothing new. I don’t know how many of us ever confronted the wrenching situation where you had to choose between tolerating and thus yourself becoming an honor violator, or turning in a classmate or a teammate. I am thankful always that while a cadet I never had to make that awful choice. But the reality is that the Honor Code states that a cadet is required to “snitch” on a fellow cadet who, after confrontation, is still suspected of having committed an honor violation. So having cadets tell on other cadets is also nothing new, at least when it comes to honor. In fact, it remains a requirement of our Code. Nobody doubts that it runs squarely athwart the predominant culture of young people today. Recall the West Point cadets from Texas who had committed murder and actually confided that to their classmates, so certain were they that it would not get out.
As a general rule under the UCMJ there is not a collateral requirement to tell on a classmate, even if you suspect him of having committed a UCMJ offense. This has particular relevance to things like underage drinking, where USAFA routinely will punish the ranking cadets present where underage drinking took place, even if they did not directly contribute to it, simply for not intervening and allowing it to occur. Zero tolerance sounds so appealing, but has built into it a paradox. Because USAFA makes it clear that certain things are presumptively cause for disenrollment, tremendous pressure not to snitch builds into the algorithm, because to do so means that a classmate is nearly certain to be disenrolled. Thus, systematically, the zero tolerance policy can have the opposite of the intended effect because a code of silence virtually descends. Since there is a “death penalty” for any sort of involvement, or even knowing about it, cadets figure they have little or nothing to lose by keeping quiet, since if they’re caught either way they’re out. I know we’d all like to believe that cadets are above human nature and moral cost-benefit-analysis, but the reality is we are all fallen.
Finally, there is the reality that getting an outsider into a tightly-knit USAFA sub-culture, association or IC team borders on impossible. If it is rumored that members of the football team were doing Spice, or that a given squadron has a sexual predator in it, trying to investigate it without having somebody with access borders on Sisyphean. Again, we must contend with the law of unintended consequences. BCT has changed dramatically from when we were there and much of it focuses on building class unity. Entire squadrons or flights can be punished for the derelictions of one. This can have the unintended effect of teaching basics and doolies that class loyalty comes first, and one fails all fail. Neither contributes to the idea of individual responsibility or accountability.
With respect to sexual assault, USAFA has a policy where the victim could decide if she wanted to pursue the UCMJ route or not. Again, a female underclass cadet who might have been victimized by another cadet who happens to be a member of, say, an intercollegiate team, might be seriously intimidated by the prospect of being the one to wreck the future of a popular and implicitly powerful cadet athlete and possibly even the team itself. Once again, by trying to encourage victims to come forward, an unavoidable paradox was built into the system.
Eric Thomas is an African-American who was a football recruit. He was “inside” a lot of the communities that OSI agents could not expect to penetrate so long as the code of silence within those communities stood fast. But he had witnessed a sexual assault, was friends with the victim, who chose not to go along the UCMJ path because she was scared not merely of the perpetrator, but his friends. He viewed that as a terrible injustice. He was also present at a major cadet Spice party. When he was interviewed, he ultimately agreed to become a confidential informant for the OSI, focusing on sexual assault. Ultimately, he became instrumental in the general court-martial and conviction of two different cadets for various sexual assaults. Both had multiple cadet victims. One had five cadet victims. The OSI lauded him as one of their “most valuable” confidential informants, responsible for over 25 proactive AFOSI cases. Yet all of this was underground. Eric’s AOC knew nothing of his activities for OSI; in fact at the time only the commandant, Brig Gen Clark, and a deputy knew about it.
Eric would tell you straight up he was far from a model cadet. There were things he did (chiefly breaking restrictions) that had nothing to do with the OSI. But it is equally true that some of his OTF’s that went towards his demerits and the MRC decision were related to times he was working for OSI. So, when his AOC recommended him for disenrollment, something entirely defensible given he knew nothing about Eric’s role, Eric’s handling agent arranged with the commandant to take the case to an investigating officer so that OSI could be more forthcoming to the investigating officer about tradecraft and what Eric had done for them. They knew that in the broader venue of a MRC, they could not discuss tradecraft.
Then misfortune stepped in. General Clark pcs’d and a new commandant took over. At about the same time the leadership at the OSI also changed. The disenrollment procedure was changed back to a MRC. Just fifteen minutes before the OSI handler was going to go before the MRC and tell them what Eric had done, he was ordered by the new OSI squadron commander not to go. Eric was understandably frantic; his handler, his wingman, had abandoned him. So on his own he tried to tell the MRC what he had done, but they were dubious. I do not think it violates any confidence to say that I too was skeptical of all Eric told me, but I have since received confirmation to such an extent that I know the above to be true.
After the MRC disenrollment recommendation Eric tried again and again to contact his OSI handlers through text, cell phones, and everything else, but received no response. Finally, he got hold of his handling officer in November of 2012. During all of this time his disenrollment package was being processed. I do not know the reason for the delay.
It was not until November of last year that his handler finally contacted Eric, and told him that he would meet with him. Instead, when Eric showed up he was met by the OSI commander and another agent who figuratively worked him over for an hour or two, telling him he was a disgrace, had violated his non-disclosure oath and was unfit to be an officer, or words to that effect. At this point I attempted to call the OSI commander, but did not receive a return call the first time. The second time, I left a message and he did subsequently return the call, but for whatever reason we were never able to speak one-on-one.
It was at about this point that Eric’s disenrollment package left the commandant’s shop and went to the superintendent, Lt Gen Gould. I was in contact with JA, and told them of my concerns that Eric’s role with OSI had not been fully and completely understood by his chain of command. Meantime, we sent in the first Privacy/FOIA request to OSI. It was returned “no records.” I know this to be categorically false.