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Top Air Force Lawyer Steps Aside

Investigators Examine Alleged Sexual Conduct With Subordinate

By Thomas E. Ricks
Washington Post Staff Writer
Thursday, September 30, 2004; Page A02

The top lawyer in the Air Force has temporarily given up his job after coming under investigation for allegedly having an inappropriate sexual relationship with a female subordinate and perhaps with other women, Pentagon officials said yesterday.

Maj. Gen. Thomas J. Fiscus, the Air Force's judge advocate general, asked last week to be relieved of his duties while the investigation is pending, according to a memorandum sent Monday to all Air Force lawyers.

Maj. Gen. Thomas J. Fiscus is being investigated for allegedly having a sexual relationship with a female subordinate and perhaps others. (U.S. Air Force)

"I ask each of you to refrain from speculation and to caution others that rumors and conjecture needlessly damage reputations and careers," wrote Maj. Gen. Jack L. Rives, the Air Force's number-two lawyer. Rives said in the memo that he is taking over Fiscus's duties until the inspector general's investigation is completed.

Investigators are examining Fiscus's relationship with a female Air Force lawyer who joined his office earlier this year, said officials familiar with the situation. Investigators are looking especially at e-mail exchanges between the general and the woman, a Pentagon official said. But their inquiry extends beyond that relationship, another official said.

Fiscus did not return calls to his office and his home seeking comment. The female officer who is being investigated also did not return calls.

Col. Jay DeFrank, an Air Force spokesman, said, "The memo pretty much summarizes" the situation. He declined to elaborate.

The investigation of Fiscus, which was first disclosed by Air Force Times, an independent newspaper, is likely to gain unusual attention for three reasons.

In recent years, the Air Force has experienced several major incidents of sexual harassment or abuse, most notably at the Air Force Academy. Also, in 1997, it suffered through one of the highest-profile military trials in the modern era after it charged a female bomber pilot, Lt. Kelly Flinn, with adultery, insubordination and lying. One of the charges against Flinn was that she had a sexual relationship with the spouse of a subordinate. The case ended with her accepting a general discharge rather than being court-martialed.

Since then, said David Sheldon, a defense lawyer specializing in military cases, "The Air Force has taken sexual harassment and fraternization very seriously."

In a 2000 case, a military court ruled that affairs between officers can be illegal even when they are consensual. That matter involved an Air Force squadron commander who was found to have developed an improper relationship with a female intelligence officer.

Now the top lawyer in the Air Force is being investigated along the same lines.

The case is also significant because in the history of the military no judge advocate general, as the top uniformed lawyer in any service is called, has been relieved for unprofessional conduct, a Pentagon official said.

In addition, Air Force lawyers have been among the most vocal over the past two years in challenging the Bush administration's handling of detainee issues.

In December 2002, Defense Secretary Donald H. Rumsfeld approved the use of harsh interrogation techniques against suspected al Qaeda and Taliban fighters held prisoner at the Navy base at Guantanamo Bay, Cuba. But military interrogators at Guantanamo complained to superior officers that techniques they were asked to use, such as stripping prisoners to humiliate them and using dogs to scare them, were abusive. That provoked an extended Defense Department review, during which military lawyers for each of the services forcefully expressed their concerns, officials said.

After an intense bureaucratic struggle, the lawyers, including Fiscus, persuaded Rumsfeld to rescind his approval of those interrogation procedures.

"The timing of it is certainly suspect, given [Fiscus's] office's opposing OSD [the Office of the Secretary of Defense] on detainee issues," Sheldon said.

Fiscus has been the Air Force's top uniformed lawyer since February 2002. The judge advocate general oversees 1,600 lawyers and 1,600 paralegals and other civilian employees. Fiscus graduated from the Air Force Academy in 1972 and from Ohio State University's law school in 1975. During the 1990s, he held several of the highest-profile legal jobs in the Air Force. In 1995, he was the staff judge advocate for the Air Force unit enforcing the "no-fly" zone over southern Iraq. He later served as the top lawyer for the Air Force in the Pacific and then for the Air Combat Command.

Researcher Lucy Shackelford contributed to this report.

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