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Posted on Nov 5, 2003 Print this Article

DoD INSPECTOR GENERAL INVESTIGATING NAVY JAG ABUSE OF POWER

The Department of Defense Inspector General (DoD IG) has been investigating, for more than a year, a pattern of improper behavior and abuse of power by certain officials in the Office of the Navy Judge Advocate General (OJAG). The confidential probe began when Elaine Donnelly, President of the Center for Military Readiness, filed a formal Request for Assistance with Defense Department Inspector General Joseph E. Schmitzon June 11, 2002.

The Request for Assistance became necessary in order to stop a pattern of deliberate bias on the part of Navy JAG officers—several of whom constantly interfered in litigation filed against Donnelly and CMR by former F-14 pilot Carey D. Lohrenz1  More than a thousand pages of carefully indexed documents—many of which were obtained during the discovery process—supported Donnelly’s Request for Assistance.

Many more documents were obtained in a partial response to CMR’s initial Freedom of Information Act (FOIA) request, which CMR attorney Kent Masterson Brown had filed in April 2002. Heavy redactions and omissions, however, made it difficult to determine exactly what some Navy officials had done in the process of helping Lohrenz’s attorney, Susan Barnes.

Starting in 1999, several JAG officers cited constantly changing interpretations of obscure DoD rules, known as the Touhy regulations, as their excuse to interfere in the deposition process. In particular, JAG officer Cmdr. John Maksym claimed the right to: a) Arbitrarily delay, limit, or forbid testimony from retired naval officers, who were threatened with punishment for non-compliance; b) Choose expert witnesses for Donnelly and CMR; and c) Forbid Donnelly and CMR attorneys from talking to anypotential Navy witness without a JAG officer present or listening in.

These high-handed, arbitrary mandates tied the hands of CMR attorneys, intimidated potential witnesses, disrupted the deposition process, violated Donnelly’s rights of due process, and needlessly prolonged the litigation. But all of that was only part of what was going on.

Desperately Seeking Declarations

In January 2002 CMR attorneys became aware that for approximately two years, the OJAG had been providing invaluable assistance to Lohrenz’s feminist attorney, Susan Barnes, without notice to CMR. According to scores of redacted but still revealing e-mails and correspondence, Cmdr. Maksym and other JAG officers devoted countless hours of official time helping Barnes to interview and obtain signed “declarations” from active duty and retired naval officers. 2

The ostensible purpose of OJAG’s involvement was to ensure that all informal interviews, depositions, and sworn statements would be conducted and gathered by both sides in compliance with the Touhyregulations—also known as “Maksym’s rules.” Due to the potential for abuse and violations of Donnelly’s privacy, CMR rejected Cmdr. Maksym’s plan for monitoring all witness interviews, and filed unsuccessful litigation to remove all of the outrageous restrictions. At some point Cmdr. Maksym and other JAG officers secretly began helping Lohrenz and attorney Barnes in the following ways:

  • In November 1999 JAG officers allowed Barnes to conduct telephone interviews with four naval officers. CMR attorneys monitored under protest. In a legal brief filed with the Court on March 31, 2000, Barnes stated that she was allowed to continue those interviews after CMR attorneys, understanding that the interviews were over, had left.
  • In 2000, the OJAG began arranging and monitoring secret interviews that Susan Barnes conducted with twelve to fourteen potential witnesses at several Navy bases. No apparent effort was made to enforce rules that had been imposed during earlier depositions conducted in the presence of Cmdr. Maksym, who had constantly interrupted those sessions.
  • Several e-mail messages reflected close collaboration and an “us” vs. “them” (meaning anti-CMR) attitude. Additional messages suggested that Cmdr. Maksym allowed Susan Barnes to use his own office to conduct her legal business. Maksym also offered strategic advice, acting as if he were an unofficial member of Lohrenz’s legal team.
  • As the December 2001 filing deadline approached, Barnes’ efforts to gather declarations, with the help of the OJAG, became increasingly desperate. Only five of an undisclosed number of officers interviewed by Barnes actually signed declarations, which were clearly questionable. Barnes submitted an additional one to the Court unsigned, and made the unsupported claim (twice) that Navy regulations had interfered with her ability to get a signature.
  • In March 2002, CMR attorneys moved to strike several declarations that were rife with hearsay, incompetent statements, and inaccuracies that were inconsistent with an enormous body of factual information already established to be true. Some of the declarations contradicted previous statements made by the same officers under oath in 1996, during the Naval Inspector General’s Air Wing Eleven investigation.

OJAG Unconcerned About Unethical Behavior

Cmdr. Maksym told CMR attorneys that his only responsibility in gathering the declarations was to review the documents before forwarding them to targeted officers, in order to ensure compliance with Touhy regulations. Partially released e-mails seem to indicate, however, that Barnes sent copies of the documents to Maksym both before and afterthey were signed.

That makes it difficult to explain why Barnes’ declarations are full of statements about topics that were kept strictly “off limits” during depositions attended by CMR attorneys and at least one Navy JAG officer. So much for “fairness” and “even-handed” treatment under the constantly changing Touhyregulations.

The OJAG was not responsive to initial letters from CMR inquiring about these matters. Subsequent letters—one of them signed by Judge Advocate General Rear Admiral Michael Lohr himself—were arrogant as well as unresponsive. In July 2002 the OJAG did release partial documents in response to CMR’s FOIA requests, but Adm. Lohr repeatedly denied Donnelly’s appeal for unredacted copies of those documents, plus additional ones requested. Many of the documents denied to CMR are known to be in the possession of opposition attorney Barnes. 3

The OJAG claimed the need to protect individual “rights of privacy” as their rationale for not complying with the FOIA law, even though CMR had requested information about official government actions, not individuals.

In an October 2002 letter, Donnelly asserted that she filled the classic profile of a “requester” who is entitled to cooperation under FOIA, and the Office of the Judge Advocate General fit the description of a compromised, self-interested government agency that is failing to comply with the law.

The still-unresolved FOIA dispute conveyed two disturbing messages: The Judge Advocate General did not careif naval officers presented contradictory testimony or declarations under oath in separate legal proceedings; and the OJAG was not willing to investigate or stop abuses of power that have been perpetrated by functionaries in his own office.

That left no alternative but to ask for the assistance of the DoD Inspector General. In summary, the Department of the Navy was simply incapable of investigating its own actions in this matter.

CMR Appealing FOIA Denials

Official Navy policy requires compliance “…in both letter and spirit” with the Freedom of Information Act, which serves the public interest by requiring the release of full and complete information about official activities of any unit of government. All offices must “provide the public with the maximum amount of accurate and timely information concerning its activities.” 

CMR has appealed all denials of documents under the FOIA, and asked the DoD Inspector General to investigate other irregularities indicating blatant bias and abuse of official power. Donnelly and CMR attorneys provided sworn testimony in January 2003. As of November 2003 the investigation, which began on September 19, 2002, is nearing completion.

* * * * *

ENDNOTES: 

1. The libel/defamation complaint accused Donnelly of causing Lohrenz to wash out of carrier aviation because of something that she (Donnelly) wrote. At issue is the April 1995 CMR Special Report: Double Standards in Naval Aviation, which Donnelly published after four months of investigation and meetings with high level officials following the death of F-14 pilot Lt. Kara Hultgreen.

2. The Navy is not a party to Lohrenz v. Donnelly & CMR, a baseless harassment lawsuit that was filed in the U.S. District Court for the District of Columbia in February 1996 and dismissed by Judge Royce C. Lamberthin August 2002. Lohrenz is appealing the case to the Court of Appeals for the District of Columbia Circuit. A three-judge panel heard oral arguments on September 19, 2003.

3. Some Navy officials were discomforted by CMR’s exposure of politically motivated decisions that may have contributed to the death of Kara Hultgreen. Others may have wanted to interfere with discovery in order to prevent additional revelations of the truth. CMR discovered, for example, that a senior F-14 instructor warned that Hultgreen was not ready to graduate to the fleet, but he was overruled due to post-Tailhook pressures to get women into combat aviation. Former CNO Adm. Stanley Arthur admitted under deposition cross-examination that “…[I]n this case we sent people to the fleet not qualified.”

The Center for Military Readiness is being represented by noted constitutional lawyer Kent Masterson Brown, Frank Northam, and Christopher Shaughnessy of the firm Webster, Chamberlain & Bean in Washington D.C. Tax-deductible contributions to the CMR Legal Defense Fund may be addressed to CMR/LDF, P. O. Box 51600, Livonia, Michigan 48151. For additional background information, please see additional Legal Defense Updates and Summaries posted on the website www.cmrlink.org, in the Issues/CMR Lawsuit section.

Posted on Nov 5, 2003 Print this Article