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Air Force seizure of phones linked to Miley Cyrus lyrics didn't violate pilots' rights, IG says

SitRep: Legal questions linger over search of airmen's phones

The Air Force Inspector General's Office said the service acted lawfully and within regulations when it seized and searched the phones of airmen as part of an investigation into misconduct at Laughlin Air Force Base.

The Air Force didn't violate the rights of Laughlin pilots when it seized their phones as part of an investigation into inappropriate conduct, a top Pentagon watchdog said, noting however that some parts of the law are "unsettled."

"The preponderance of the evidence…supported that due process rights of the individuals were respected," said a report from the Inspector General of the Air Force, which was sent to Congress Wednesday morning. The Air Force provided Air Force Times with a copy of the nearly 90 page report. (Read Part One, Part Two, and Part Three)

In 2015, three instructor pilots at Laughlin Air Force Base, Texas, had their wings stripped and were given letters of reprimand after the Air Force Office of Special Investigations found messages on their cell phones referencing "Molly," a slang term for the illegal drug ecstasy.

The airmen, who have not been publicly identified, said the texts referenced song lyrics that have popularized the slang, including rap and pop songs.

The IG investigation found the Air Force legally searched the airmen's cell phones under current regulations. But there's disagreement on whether the information taken in such seizures should be allowed under the law.

"It's an enormous gray area," Joe Kasper, a spokesman for Rep. Duncan Hunter, R-Calif., told Air Force Times.

"In the modern communication age, it's something we have to look at, this idea that whatever you write on your personal cell phone the military will consider as a sworn statement," he said. "There's got to be a line that can be drawn that will uphold someone's right to privacy while allowing investigators to collect the evidence they need."

Kasper said it's a topic Congress will look into as part of the FY 17 National Defense Authorization Act.

For example, one airmen refused to provide the password for his phone until he was ordered to do so.

"Although [the airman] contends this action was illegal and violated his constitutional rights, this remains unsettled in the legal system and is a larger issue to be resolved outside the context of this inquiry," the IG report said. "With regard to [this] case, the policies and procedures in place at the time of the search and seizure were followed."

In October, Air Force Times spoke with Guy Womack, a retired Marine Corps lieutenant colonel and judge advocate, who questioned whether the military could force the airmen to turn over their passwords, or search the service members' phones without written legal authorization.

"If he gave the officer an order to turn over his phone, that does not mean that he gave anyone authorization to search the phone," said Womack, now a military defense attorney. "If you hand them your phone, they can't look at it, they can just hold it until they get a warrant to search it — or an authorization to search it. If they didn't have authorization to search it, then search was illegal."

The airman claims that when he tried to push back against the order to turn over his password, he was told by OSI agents that they had a verbal warrant to search the phone, but that the warrant wasn't signed until the day after his phone was seized.

The IG report's official timeline does note that on Aug. 11, 2014, a military magistrate "provided verbal authorization" to seize and search one of the cell phones, but that the written authorization was not completed until the next day. The names in the report are redacted for privacy concerns, so it is difficult to tell if it was the same airman.

A general officer review conducted by the Air Force found that it was "standard operating procedure for OSI first to obtain verbal search authorization and then to memorialize with a written search authorization."

Womack disagreed, adding that "it's not consensual if you tell someone, 'Hey, I've got a warrant, you might as well give it to me'…That's not valid because you didn't know that you could refuse consent. It's only consensual if you believe you can refuse and you give that up and you say, 'Ok, go ahead and take it.'"

The service's discipline of the three airmen in question prompted two Republican lawmakers — Rep. Duncan Hunter of California and Adam Kinzinger of Illinois, both veterans — to question whether the punishment was too harsh, as none of the airmen were proven to be using drugs and had passed drug tests.

"They could not substantiate that any of the airmen involved in the Laughlin controversy were using or had ever utilized illegal drugs based on the evidence," Kasper told Air Force Times. "There was no evidence to substantiate illegal drug use. None."

In a letter sent to the Air Force Sept. 15, 2015, the two congressmen said that "at no point did investigators obtain any evidence beyond the initial text messages to support an allegation of illicit drug use. There were no witness statements, no drugs or drug paraphernalia were discovered, and all of the drug tests — that were submitted to voluntarily — returned negative results."

Air Force Chief of Staff Gen. Mark Welsh promised to look into the matter, which prompted the IG's investigation.

In December, the pilots had their flight status restored when the head of the Air Education and Training Command, Lt. Gen. Darryl Roberson, found that the allegations of drug use "was not sufficiently substantiated by the evidence."

Kasper said Hunter and Kinzinger are still working through the case and hoping to "steer the Air Force in the right direction."

Lt. Col. Julie Huygen, the chief of the military justice division for the Air Force Legal Operations Agency, said the objective of the IG investigation was to "take an objective look at these processes and this decision making process to make sure that it is being done in a fair and just manner and happening as appropriate in light of the facts and circumstance of each individual case."

Huygen said all airmen receive due process of law, no matter the severity of their offense or the possible punishments they face.

"The airmen is entitled to and receives free military defense council, so the services of a lawyer, and is entitled to and receives due process, which means they're notified of the misconduct they're suspected of committing, and they have the opportunity to respond to it," she said.

The IG's report said the Air Force was justified in meting out the penalty, often referred to as 'adverse actions' — punishments below a court martial.

"Although the use of text messages alone as evidence was deliberated extensively, the command and advising attorneys concluded that the specificity, depth, and breadth of the text message evidence met the preponderance of evidence standards for the actions taken," the report said.

The investigation is also the first time that parts of the text messages in question have been made public. The IG quoted an e-mail from one airmen to another about events in the evening and said that "Molly would be present." A second conversation between two of the instructor pilots moving in with each other included a statement that they "would die first from alcohol and Molly poisoning."

And a third text had an airmen ask a civilian "Do you have access to Molly? No pressure but I think my experience would totally benefit." When the civilian texted asking how many times the airman had taken Molly, the pilot replied "twice."

The accused airmen never tested positive for drugs, and maintain that the texts were part of a series of conversations that involved song lyrics, movie quotes, and other pop-culture references.

However, a general officer review conducted by the Air Force disputes that, saying the texts "were not jokes or references to popular song lyrics."

Pointing to a conversation between an instructor pilot and two women, the general officer review found that the messages were "personal communications in which two of the women identified themselves as illegal drug users and [the pilot] took the opportunity to discuss his interest in or experience with illegal drug use. Even if one gives [the pilot] the benefit of the doubt and credence to the notion that he has never used illegal drugs, his conduct in the form of the text messages constituted conduct unbecoming an officer and gentleman."

While no proof of drug use was found, the general officer review said that issuing letters of reprimand for the airmen was "appropriate and justified."

Discussing one of the instructor pilots, the review said that "although [the airman] was acting in an unofficial or private capacity, his actions dishonored him personally and seriously compromised his standing as an officer."

Huygen said the armed forces rely "on the adherence of military members to rules that are drawn up because they make sense and because they are necessary."

"We don't do good order and discipline for the sake of good order and discipline," she said. "We do good order and discipline in order for the Air Force to accomplish its mission."

The airmen's phones were seized as part of a wider Air Force investigation into allegations of inappropriate relationships at Laughlin.

Capt. Christopher Hill pled guilty to having an unprofessional relationship with a student pilot and having sex with an enlisted airman. 1st Lt. Kevin Sheehan also pled guilty to having a sexual relationship with a student pilot.

Hill received 45 days' confinement and was dismissed from the Air Force. Sheehan was given 100 days' confinement and forfeiture of pay.

During the course of the investigation, OSI agents searched the cell phones for evidence of inappropriate relationships, and came across the text messages that could indicate drug use, prompting the separate inquiry into whether the airmen used Molly.

In addition to the airmen who were disciplined for referencing drugs, Kasper said Hunter and Kinzinger are also concerned about airmen who were punished for not reporting the inappropriate relationships that instructor pilots were having with trainees. The two Congressmen met with Welsh Tuesday to discuss the situation.

"The individual who might overhear about someone's social conduct and doesn't report it is just as guilty as the individuals who are engaging in that behavior. That's a terrible precedence to set," Kasper said.

"If you overhear at any point information at a water cooler let's say, or standing at a bar off hours, and you don't report it, you too could potentially be held responsible or indicted for knowing about an inappropriate relationship," Kasper continued. "The Air Force is encouraging airmen to report any allegation of potential wrongdoing, whether or not it's substantial. One of the quickest ways to drive a wedge into the force is to encourage airmen to turn their backs on each other."

Kasper said Congress would carefully review the IG report and the General Officer review about the phone seizures, drug tests, and inappropriate relationships.

"You can talk to different people who will have entirely different conclusions, and I think right now the Air Force believes very strongly that it acted appropriately in this case," he said. "As it relates to our understanding of the entire issue, we're not exactly sure that's true. However, the Air Force does have an obligation to enforce the law as it deems appropriate. Our job in an oversight capacity is to review instances like this and determine whether or not the law was followed, or if new laws are needed to ensure that individual rights are protected."

Jeff Schogol contributed to this report.

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