[Congressional Record Volume 140, Number 145 (Friday, October 7, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: October 7, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
NOMINATION OF BUSTER C. GLOSSON
The Senate continued with the consideration of the nomination.
Mr. GRASSLEY. Mr. President, as you know, I am discussing the reasons
that I believe General Glosson should not be confirmed in his promotion
recommended by the Department of Defense and by the President.
As I have tried to make clear, the sequence of events is that there
was a panel, which is traditionally done in our military services for
promotion, set up to promote some members of the Air Force. That
promotion process is not to be interfered with. The integrity of it
must be maintained.
The inspector general of the Air Force, backed up by the Department
of Defense inspector general, said that General Glosson tampered with
that process, and the evidence of it was given out by three generals
who were on the board who knew that these communications by General
Glosson were not only morally and ethically wrong, but they violated
the regulations of the Air Force. They resigned. That was the basis for
the inspector general investigation.
Those facts were supported by the investigations of the inspector
general, and then further, when questioned about it, the inspector
general said that General Glosson lied under oath. Made aware of this,
the Secretary of the Air Force, although she would say it was on
General Glosson's initiative, withdrew from consideration for other
higher up positions within the Air Force.
Somehow it was surmised that a consolation prize for this process
would be that General Glosson would retire at a three-star rank. So the
nomination went through the Department of Defense, Secretary of
Defense, the White House and came up here. It was up here for several
months. Finally, the Armed Services Committee decided that it ought to
go back to the Department of Defense for some review.
There was a special panel set up to go back and look at everything to
see if General Glosson lied and these generals that resigned that said
that General Glosson was tampering in the process, whether all that was
accurate.
And so the panel reported back--and I discussed that--and that is
why, because of the panel report, our own Armed Services Committee felt
they could move ahead and bring General Glosson to the floor of the
Senate for final confirmation at retirement rank of lieutenant general.
And so we are dealing with whether or not General Glosson,
interfering in this process, should be rewarded by a three-star rank
and the stamp of approval that Senate confirmation gives to that.
So I wish to speak a little about the inspector general's activity in
this area versus what the panel had to say as it relates specifically
to whether or not Glosson lied. As far as the panel is concerned, as
far as the IG is concerned, there is no dispute that Glosson interfered
in the process, and the three generals who resigned from the panel and
said he did interfere, there is no dispute that they were telling the
truth. The only dispute is did Glosson lie about it under oath.
But even if he only interfered in the process, that is a very, very
serious matter and subject to all sorts of action that can be taken
against anybody so doing.
But I want to just focus on this lying issue. Again, the joint IG
investigation concurred in by the Air Force JAG and the Air Force
general counsel found that General Glosson did lie under oath. The
inspectors general conducted a criminal investigation into the
allegations against General Glosson. It was conducted as a criminal
investigation on the advice of the Air Force judge advocate after he
was made aware of these allegations.
This was not an administrative inquiry. Had it been, the IG could
have compelled General Glosson's testimony. But General Glosson did not
fully cooperate in the way that reflected an administrative inquiry.
For instance, he required the presence of a personal attorney, and he
disallowed a transcript of the interview by the IG personnel. According
even to the committee report, General Glosson was evasive and
misleading in his responses.
The IG is duly authorized to conduct such investigations as was the
case in this matter. It hires experienced investigators to conduct such
investigations. These investigators make judgments based on weighing
the facts against criminal standards. And when their judgments are
signed off on by counsel, which it was in this case, it then makes a
very powerful case.
The review panel, on the other hand--I am talking about the panel
that was set up after the Armed Services Committee sent this back to
the Defense Department for reconsideration--this review panel, on the
other hand, made a political judgment about whether General Glosson
lied, and it did not have criminal investigative expertise.
As a member of the Judiciary Committee, I have become familiar with
the investigative process. In legal proceedings, facts are determined
by skilled factfinders, the trial courts. In ensuing appeals, the
appellate courts are to provide deference to the factfinding of the
trial court. This deference is especially strong when the district
court's factual findings were based on live testimony, where the
district court was able to evaluate the credibility of the witnesses
based on the testimony.
The IG's heard all the witnesses, and their findings on credibility
should not be dismissed lightly. Because the parties often disagree
about the facts and because anyone can testify in a self-serving way,
the processes of cross-examination and observing credibility are
extremely important in resolving the factual inconsistencies in
litigation generally. The three-member panel, again, set up just a few
weeks ago after the Armed Services Committee sent it back to DOD, did
hear live testimony. They also concluded that the three generals
testifying against General Glosson were telling the truth.
They did not say the same thing about General Glosson. However, the
panel's live testimony was taken long after the IG's heard the
testimony--nearly 1 year later, when witnesses' memories, except
apparently General Glosson's, were fresher.
In my view, therefore, and for reasons I mentioned earlier, the
three-member panel's review does little to persuade me that the finding
of lying by the IG's on the part of General Glosson was wrong. This is
especially true since the panel's factfinders said that General
Glosson's testimony to them was evasive and misleading. Mind you, this
is not the IG's talking. It is the review panel talking.
Couple this with the fact that the panel did not state that General
Glosson told the truth. Let me repeat that: Couple that with the fact
that the panel did not state that General Glosson told the truth and
that is hardly, then, I think a ringing reversal of the findings of the
IG's. So again, I say that that argument simply is not persuasive.
Mr. President, there are three main arguments used over the last year
by those who want to push through the Glosson nomination. Each one of
these arguments is flawed. I wish to review the three. The first
argument is as follows: Yes, General Glosson improperly tried to
influence the promotion board. However, you have to look at this in
light of his entire military career.
General Glosson, indeed, had a distinguished military career.
It is punishment enough, the argument goes, that General Glosson's
career was prematurely cut short. I wish to address this argument.
First of all, General Glosson had been promoted often to reflect his
distinguished career. He rose all the way to major general without a
single blemish on his record. That was his last promotion. Since that
promotion, General Glosson engaged in activity in question, and so this
confirmation relates only to what he did since his last promotion.
The argument that he should get his promotion based on his entire
career is simply not a persuasive one, particularly when you deal with
something that is potentially a court martial offense, interfering with
the promotions board processes and, for sure, lying under oath.
The second argument that I think can be discredited is that if the
U.S. Senate confirms General Glosson, here is what it is saying, here
is the signal we are sending, not just to other flag officers but the
entire military and to cadets and to plebes and those who are at the
bottom of the ladder. We are saying to them, you can have a
distinguished military career, and near the end of that career, you can
do something improper and we will overlook it. If you have an
unblemished career, you are allowed one big foulup and we will look the
other way, because one major foulup will be looked at in the context of
your entire career.
That, Mr. President, is unacceptable because it is a political
solution. It violates the very rigorous standards that we as an
institution have fought hard to establish; namely, to make the
promotion system like Tylenol--tamper proof.
A second argument I heard was the conspiracy argument. The conspiracy
was that it was not General Glosson who lied, it was the other three
generals who were influenced. They ganged up on General Glosson and
conspired against him. It was they who lied to stop his career dead in
its tracks.
Mr. President, none of the investigating bodies found one scintilla
of evidence to support this conspiracy theory. To the contrary, at
every turn, the three generals were found to be telling the truth--the
Air Force IG, the DOD IG, the Air Force JAG, the Air Force general
counsel, the Secretary of the Air Force, the three-member review panel,
and the Armed Services Committee. Yet, this argument was used to get me
to take a sympathetic view of General Glosson. Let me just say
parenthetically the way to get me or anyone else to take a sympathetic
view of General Glosson is to win the case on the merit of the findings
in the joint IG report that these findings of the joint IG report are
unfounded. So this argument of conspiracy is also a nonstart.
(Mr. AKAKA assumed the chair.)
Mr. GRASSLEY. Mr. President, a third key argument was that the joint
IG report was biased. That argument said that the Air Force IG LTG
Eugene H. Fischer held a bias against General Glosson and that,
therefore, the joint IG report was tainted. This argument was not only
wafting behind closed doors around here but the Armed Services
Committee considered the issue in its deliberations as well.
In response to this argument, let me say first that the Air Force IG
was merely a participant in the investigation invited by the DOD IG. It
was the DOD IG that conducted the investigation and called all the
shots.
Second, the three-member panel reviewed this allegation and found
absolutely no basis for such allegations. In fact, the panel's findings
even directly shot down these allegations. It said ``We adduced no
evidence establishing that Lieutenant General Fischer had serious
personal conflicts with LTG Glosson.'' Again, this was one of those
arguments wafting around the halls of this institution. Let me be very
clear about it. There is no factual basis for these arguments.
I might say, Mr. President, at this point, all of these different
arguments that I just alluded to were used back in the spring and the
early summer of why this should go through. In recent weeks, I think
that the people have come to the conclusion that these arguments do not
hold water, and I have not been hearing them on the personal appeals
that have been made to me by my friends in this body who have asked me
to just look another way and let this go through.
Mr. President, the image and the integrity of the U.S. Navy has
suffered greatly in recent years. Incidents like the Navy cheating
scandal at the Naval Academy, also things like Tailhook, and other
scandals have given the Navy much more than just a black eye. As a
result of all of this, at the Naval Academy they talk about the new
Navy--the new Navy now. What that means is that the Navy is trying to
clean up its image. It is trying to instill in its lower ranks a new
ethical standard. But if this new ethic is to take hold, what happens
at the lower ranks must also take hold at the upper ranks. And the
Senate is very much a part of that process.
It seems to me we need to follow the Navy's lead. We, in the Senate,
have been trying to clean up our own act. We are passing laws
restricting gifts and lobbying. We will soon pass a law to subject
Congress to the new laws that we pass for the rest of the country that
we have exempted ourselves from, although I doubt now if we are going
to get this done this year. But this will be done by February next
year. The new Senate needs to instill a new ethic. By eliminating the
appearance of double standards, we build up our credibility and our
integrity as an institution. We are trying to become the new Senate
just like the Navy is trying to become the new Navy.
Mr. President, we would be taking a giant step backward if we let
this nomination go forward having failed to resolve these very serious
issues. There is no question that General Glosson tampered with the
promotion board. And it is not disputed that he did not tell the truth
about what he did. Meanwhile, all agree that the three generals who
testified against General Glosson were truthful.
Advocates of General Glosson say the following: That despite this
blemish, you have to look at his overall career. But the problem with
this argument is, as I have said, that if we do that, it is business as
usual. That certainly then would not be the new Senate speaking. That
argument says all right to do something untoward at the end of a
brilliant career and you will get away with it. What they are really
doing is asking the entire Senate to just look the other way.
I do not know of one rule, I do not know of one guideline, one
anything, Mr. President, that makes an exception for bad conduct if you
have a brilliant career. That argument simply does not wash.
Do my colleagues really want to make that argument to the public?
They look at that argument and they would say, yes, it is business as
usual, business as usual here in the Nation's Capital. And I, for one,
am just one Senator, but for one Senator, I would agree with that. This
is such a clear case.
If we let this nominee go through, then who would ever stop? What
would it take to put an end to business as usual? What would it take to
put an end to placing political connections over integrity? What would
it take for the U.S. Senate to rise up and finally say enough is
enough?
The integrity of the nomination process is too important to be
compromised for the benefit of one officer regardless of his or her
military achievements and his or her friends in Congress.
Unless and until some new evidence is brought forward to alter the
unanimous conclusions regarding General Glosson's conduct, the Senate
must reject his nomination. To do otherwise elevates form over
substance.
We saw how the Navy cracked down on the Naval Academy at the time of
cheating. In a large part, the Senate played a major role in that, and
I think they did it under the leadership of Senator Byrd and others. I
have already referred to the fine arguments that Senator Byrd made in
those hearings. Are we going to discipline those at the bottom but not
discipline those at the top? Are we going to discipline the plebes but
not discipline the lieutenant generals who influence the process?
I want to borrow an analogy. In the 6th century B.C., the Athenian
lawmaker Solon spoke about the sometimes selective effectiveness of
law. His observation is on all fours with today's experience. Solon
said, ``Laws are like spider webs in that if anything small falls into
them, they ensnare it. But large things break through and escape.''
Mr. President, Solon in 6th century B.C. could easily have been
describing our confirmation process rather than laws. But it applies to
both.
In other words, this is business as usual. This is what we have had
all too often in this body, and all too often in this town. That is
what is involved in the Glosson case. It is all right to punish the
plebes and the cadets, but do not hold the generals to the same tough
standards.
We are the leaders in the confirmation process. Do you not know that
every officer and every enlisted man and woman in the military is
watching how we vote on this nomination? We are about to send a clarion
signal to those military men and women watching. In the context of
their culture, the outcome of this debate is as big a deal as the Gore/
Perot debate on NAFTA and what it was to most of us on that issue. It
is pivotal, defining, and it will greatly affect the morale at all
ranks in the military if we turn our heads on this issue.
The question is: How will we in the U.S. Senate respond? I suggest to
my colleagues, Mr. President, that the Senate is on the spot here,
perhaps even more so than General Glosson. Will we set the example
needed to reflect a new sentiment? Or will it be business as usual, and
will we allow General Glosson to bust through the spider's web?
In my view, this is a key vote on the credibility of our institution.
This integrity issue, I think, is central to a lot of people in the
bureaucracy. I was asked to meet with the Secretary of the Air Force on
these nominations. But, you know, when they came to talk to me, they
said they came to talk about the Colonel Bolton promotion and the
General Barry promotion. They did not want to visit about General
Glosson. They did not say they did not want to visit about it; they
just said they came to speak about those other two.
Why, in my suspicion, they do not want to talk about it is that this
integrity issue is pretty doggone important and central to the whole
issue, and people in the Air Force do not want to have to be dealing
with that integrity issue because it is very difficult to support and
justify.
Let me read now from a letter from the DOD inspector general to
Deputy Secretary Duetch responding to the panel report. Again,
remember, there are these promotion panels which the three generals
resigned from when Glosson tried to influence them. But the panel
report that I am talking about refers to the three-member panel that
was set out to go over the Glosson nomination a second time after our
Armed Services Committee sent it back to the Defense Department. And so
when that panel report came back, the Armed Services Committee felt
that it gave them enough room to bring this to the Senate floor.
The inspector general had an opportunity to respond to that, and so
this letter is from the inspector general to Deputy Secretary of
Defense Deutch. This letter addresses how the panel dealt with the
issue of General Glosson's lying. It is entitled ``Memorandum for
Deputy Secretary of Defense. Subject: Nomination, Lieutenant General
Buster Glosson:
I have reviewed the report on issues relating to the
nomination of Lieutenant General Buster Glosson for
retirement in grade, which was forwarded to this office by
deputy general counsel on September 15, 1994. I believe the
fact finders correctly concluded that Lieutenant General
Fisher was not biased in any way with respect to his
participation in the inquiry conducted by this office
regarding the allegations against Lieutenant General Glosson.
Further, the fact finders and the investigators who
conducted the inspector general inquiry reached the same
conclusion, based on the same rationale, that the
conversations between Lt. General Glosson and the three
complainants conformed more closely to the recollections of
the complainants and that Lt. General Glosson's
communications were highly improper.
The inspector general says:
I disagree, however, with the fact finders' criticism of
the manner in which the inspector general inquiry was
conducted. The report asserts that the lead investigator
concluded early in the investigation that Lt. General Glosson
was lying and then attempted to gather evidence to prove that
conclusion. However, the report cites not a single instance
in which the investigators failed to pursue a material fact
or were deficient in their evaluation or presentation of the
evidence. In fact, the fact finders did not uncover any
significant new information in the course of their own
inquiry.
The report also characterizes the approach to the
investigation as too prosecutorial and aggressive. That
characterization is based on anecdotal examples that do not
withstand scrutiny. For instance, the report contends that
the interview of General McPeak was combative and contains a
small excerpt from the transcript of the interview.
Then the inspector says:
I have reviewed the entire transcript and believe the
investigators acted properly throughout the entire interview.
The investigators did not badger the Air Force Chief of
Staff. Rather, they brought him back to the issues when he
sought to avoid tough questions by providing nonresponsive
answers. Similarly, the report characterizes an interview by
Major General
The name is redacted.
A ``grilling'' because of questions the investigator asked
about the details surrounding the telephone conversation
which Major General
So and so.
Overheard, including whether he recalled if Lt. General
Glosson was wearing a long-sleeved or short-sleeved shirt
that day, because the Air Force switches uniforms in the
fall. The question was intended to help fix the date on which
the conversation occurred. As such, it was completely proper
and probative.
I find it especially perplexing that the fact finders would
criticize the investigators for a too-aggressive and
prosecutorial approach in view of their acknowledgement that
Lt. General Glosson was evasive and misleading in his initial
interview with the investigator. Were it not for the
investigators' determination to pursue the matter in despite
of the dissimulation, we would have failed in our duty to
uncover the truth.
Finally, I feel compelled to disagree with the conclusion
in the report that Lieutenant General Glosson did not lie
during the investigation and that his testimony resulted
merely from inaccurate recollection.
I find it inconceivable that any senior Air Force officer
could have gone through the crisis of the past several years
relating to promotion boards, including one instance where an
Air Force general officer was retired at a lower grade,
without being cognizant both at the time and later
recollections of any conversations he had with three board
members relating to a fellow officer's potential promotion.
It should also be noted that the entire report, including
that important conclusion, was reviewed by the Air Force
deputy general counsel and the Air Force judge advocate
general. Those legal officials' initial concurrence was that
the findings of the report were supported by the evidence of
the record.
The factfinders make no reference whatever to the legal
review. I believe the legal review is further testimony to
the fairness of the report and its conclusions, and I
continue to stand on it. I request that you forward this
memorandum to the chairman and ranking member of the Senate
Committee on Armed Services.
Signed Derek J. Vander Schaaf, Deputy Inspector General.
Mr. President, from day one, I have argued that the Senate should not
confirm General Glosson's nomination until the dark cloud hanging over
his name is somehow lifted.
Well, Mr. President, that dark, ominous cloud still hangs over the
Glosson name. A reinvestigation did not succeed in washing away the
evidence. An independent panel of three judges took a fresh look at all
the evidence, but it was unable to break free of the facts and to lift
the cloud.
The evidence against General Glosson is compelling. It is impossible
to reconcile General Glosson's story with the testimony of three senior
Air Force officers. That is the problem we have to wrestle with today.
That is the issue. The Glosson nomination has been a very difficult and
contentious issue for the Armed Services Committee. The committee has
been agonizing over it for months. It is kind of like a festering thorn
in the committee's side.
The complaints that were lodged against General Glosson go right to
the heart of the integrity of the military promotion boards.
This nomination poses a real dilemma for the committee since General
Glosson was accused of breaking the rules that the committee has worked
so hard over the past 5 years to put in place.
All the committee's hard work had one goal in mind, and that goal was
to insulate the promotion board from improper influences and
communications. The whole idea is to strengthen the officer corps by
promoting the most qualified, based on skill, on performance and on
integrity, and, let me say, not on political pull.
Those are the rules that General Glosson broke. The inspector general
of the Department of Defense and the inspector general of the Air Force
accused General Glosson of tampering with a promotion board and then
lying about what he did when questioned by investigators. The
accusations by the inspectors general are laid out in a joint report
dated November 8, 1993.
The inspectors general's accusations rest primarily on the testimony
of three senior Air Force officers. The three officers who filed
complaints against General Glosson are as follows: Lt. Gen. John W.
Nowak, Deputy Chief of Staff for Air Force Logistics; Lt. Michael Ryan,
Assistant to the Chairman of the Joint Chiefs of Staff; and Maj. Gen.
Richard Myers, Director of Fighter Weapons Programs for the Assistant
Secretary of the Air Force for Acquisition. These are the ranks and the
positions they held at the time of the investigation.
These three senior Air Force officers were members of the 1993 major
general selection board. These three general officers, Nowak, Ryan and
Myers, formally complained that General Glosson had communicated with
each of them separately regarding the integrity of a fellow officer
whose name was under consideration by the board.
I will refer to the person whose integrity Glosson questioned as
General X to protect his privacy.
Communications with a promotion board regarding a particular officer
are ``expressly forbidden.'' They are ``prohibited'' by paragraph 11-d
of Air Force regulation 36-9. A failure to obey this regulation could
be a court-martial offense under the Uniform Code of Military Justice.
Officers who are assigned to serve on these boards must take a solemn
oath to ``act without prejudice or partiality,'' and they have a duty
to request relief if they think the board's proceedings have been
compromised ``by improper influence of superior military authority.''
Mr. NUNN. Will the Senator yield for a brief question?
Mr. GRASSLEY. Yes. If I do not lose my right to the floor, I will
yield.
Mr. NUNN. Mr. President, I would like to have our colleagues be able
to hear both sides of this debate. I know the Senator has spoken now
for I do not know how long and it is within his rights as long as he
chooses to. But I think the other side of the issue should be heard so
people can make a decision with both sides having been heard.
I would like to inquire of the Senator at what stage would he be
willing to have others speak on this subject?
Mr. GRASSLEY. If the Senator can give me some information, I could
answer that question. If the Senator can find out how many hours we are
going to be in session tomorrow, because we will be voting on cloture
sometime on the second day, and if we are just going to be in session a
few hours tomorrow so I cannot discuss this, then I want to make sure
we discuss it before we go home tonight.
And then I know--see, the reason I am concerned about this, I say to
my friend from Georgia, is because we are involved in four debates all
at one time. We are involved in the Glosson debate, the Barry debate,
the Bolton debate, and then the California National Park debate, and we
had 3 or 4 hours on the national park debate.
If we get into the national park debate tomorrow and they spend all
the time on that, then cloture is going to come, and I will not have
the opportunity to present the case that I want to present to the
Senate. If we are going to have a long period of time for debate
tomorrow, I would be glad to yield without losing my right to the floor
to the Senator for what time he might want right now.
Mr. NUNN. I have no way of telling the Senator that. I will certainly
inquire of the leadership what their intentions are.
I think most people would be able to speak if we vote on all these
matters sometime tonight or in the morning. But if the Senator from
Iowa is saying we really are going to be here until Sunday to debate
these, I think the Senator would have plenty of time to debate, because
if I know the Senate, and I think I do, there is nobody going to be
here to speak after 11 o'clock anyway. I think we will have ample time
to debate. I imagine if this is going to be stretched out to Sunday,
there will be a number of hours that all of us would.
I defer to the Senator. I inquire of him how long does he think it
will take him to present this case. Let us say in any circumstance does
he anticipate he will take another 2 or 3 hours, 30 or 40 minutes, or
another 5 or 6 hours?
I am trying to get a general idea on this. We have a number of
speakers on the Armed Services Committee. Two of the nominations
passed, as the Senator knows, by unanimous consent, all Republicans and
Democrats. The Glosson nomination, I believe, was a 14-to-7 vote. So we
will have other people who want to talk on the nomination on really
both sides.
So I guess my question really is: If the Senator has all the time he
needs to present his case on all of these, would he give us some
general range of that so we can inform other Senators who may want to
speak on this?
Mr. GRASSLEY. First of all, I would like to be cooperative and
intersperse what I have to say with what the Senator has to say and
others have to say on the other side, if that does not close me out of
saying what I want to say in the whole process.
So the Senator asked a very legitimate part of the process. I would
even benefit from hearing what the Senator has to say about it before I
am done. I just want to make sure that we have an opportunity to do
this. But do not forget that the issue before the Senate that is going
to determine whether or not we vote tomorrow is not necessarily on
these nominations, because the first vote on cloture is going to be on
the national park bill.
Mr. NUNN. I understand.
Mr. GRASSLEY. So I do not want and I am not going to have that yoke
around my neck. I am not responsible for extending debate until someone
on the national park debate says they are going to vote sooner than the
usual ripened time.
Mr. NUNN. I understand the Senator's point. I will also inquire into
that and perhaps come back in an hour or so and at that stage determine
when the remarks can be made.
Mr. GRASSLEY. If the Senator wants to come back before the hour is
up, I am happy to cooperate with him and let him speak.
Mr. NUNN. I thank the Senator.
Mr. JOHNSTON. Will the Senator yield?
Mr. GRASSLEY. I will be glad to yield for a question if it is not for
a long period of time and if I do not lose my right to the floor.
Mr. JOHNSTON. It is for a question.
Mr. President, my question is part question and part plea.
I ask the Senator to please let Senators know whether or not we
should cancel some very important things. My whole family is together
for the first time in over a year and a half. The Senator has it within
his power to cancel my weekend. That lies within the Senator's power.
I would tell him that if it is really important to do so, I
understand he can exercise his prerogative. I ask him not to do that
lightly. It is very important to me. And there are many other personal
stories like this.
If the Senator wants to keep us here through the whole time, please
tell us so. I plead with the Senator. Do not play cat and mouse and
say, ``Well, it depends on what you say and how the debate goes.'' I
think the Senator knows what he is going to do.
I would personally appreciate it if I could call my wife and my
children and their wives who are accompanied by their grandchildren and
say, ``I will not be coming tonight. Please proceed with the weekend
without me.''
You know, as the Nation goes, that is not an important issue. As my
personal life goes, that is an important issue. And it is important
enough so that the Senator from Iowa who is a friend can give me a
straight answer. And I ask for one now.
Mr. GRASSLEY Mr. President, for reasons before said, I cannot answer
the Senator's question, because the issues that I am debating will not
be voted upon until there is a determination of when we are going to
vote on the California national park bill.
Mr. JOHNSTON. Well, Mr. President, we do not get to that until we
finish this. If the Senator could give us an idea on what his
intentions are.
Mr. GRASSLEY. Is the Senator from Louisiana telling me that the
debate on the national park bill is all done?
Mr. JOHNSTON. No. But you cannot get to that. I mean, I had good
hopes that we would move to that vote as soon as we finish this.
Look, if the Senator wants to keep us here until Sunday, you know, I
can accept that as an answer. But what I find difficult to accept is
the vagueness of it all. Like, ``Well, you know, it depends on them.''
And they say,'' No, it depends on you.'' You know, the old rope-a-dope.
The United States Senate, when I came 22 years ago, never operated
like this. Senators were sensitive to the personal lives of other
Senators. They were aware of what they were doing and they talked
straight with one another. I think that is what we ought to do now. I
mean, tell us. You have it within your power.
Mr. GRASSLEY. Mr. President, I am telling the Senator and any other
Senator that is interested in the question that the Senator from
Louisiana asked as forthright and as honest as I can.
Mr. JOHNSTON. That I should cancel the weekend?
Mr. GRASSLEY. I cannot answer for you or anybody else on that point.
I can only tell you that I am going to present my case. I was prepared
to debate one of these nominations last fall, I was prepared to debate
the other in February, and I was prepared to debate another one as
early as last April.
Mr. JOHNSTON. Would the Senator mind telling me how long he is
prepared to debate tonight and tomorrow?
Mr. GRASSLEY. I would say 2 or 3 hours.
Now, when you are asking me, am I prepared to debate and stop at that
point, then you get back still to the other question. It does not
matter whether Chuck Grassley stops right now or not, if the debate on
the national park bill is not done, you are not going to go home,
anyway. And I have nothing to do with that debate.
Mr. JOHNSTON. I fully understand.
Mr. GRASSLEY. I would resume my discussion.
A failure to obey the regulation that I was talking about could be a
court-martial offense under the Uniform Code of Military Justice.
Officers, who are assigned to serve on these boards, must take a
solemn oath to act ``without prejudice or partiality.''
And they have a duty to request relief if they think the board's
proceedings have been compromised by improper influence of superior
military authority.
After considerable anguish, the three generals stepped forward,
asking to be excused.
Each then related the substance of their individual conversations
with General Glosson to Air Force Secretary Widnall, and she
subsequently excused them from the board.
Their complaints then triggered a criminal investigation.
The complaints were directed at General Glosson but they potentially
involved the Chief of Staff of the Air Force, Gen. Merrill A. McPeak.
That set off alarm bells.
Because of the serious nature of the complaints, a joint
investigation was launched by the Inspectors General of the Department
of Defense and the Air Force.
The Department of Defense Inspector General was in charge of the
investigation. The Defense Department Inspector General made all the
key decisions regarding the scope and direction of the investigation.
The Air Force Inspector General at the time, Lieut. Eugence H.
Fischer, came along for the ride. He was invited to participate in the
investigation--mainly as an afterthought--and at the urging of senior
Air Force officials, including Secretary Widnall.
The DOD Inspector General overruled the Air Force IG when
disagreements arose.
All the parties involved were questioned under oath.
Mr. President, I would like to review the principal evidence in the
case--the testimony of the three senior Air Force generals--the
complainants.
This is the key to the Glosson nomination.
It is important to note at this point that the testimony was gathered
two to three weeks after the alleged communications occurred. So it's
fresh material. The investigators were on a fresh trail.
I will take General Ryan's testimony first.
I will briefly hit the main points covered by General Ryan's
testimony.
General Ryan testified that about one month after he was officially
notified that he was designated as a member of the 1993 major general
selection board in early October 1993, General Glosson called him on
the telephone.
This is how General Ryan described the telephone conversation. I
quote:
I got a call from LTG Glosson, who related to me the
following: That General X had lied to the Chief of Staff and
that the Chief of Staff didn't want him promoted. I asked
Gen. Glosson, I said, let me see if I got this right. I was
kind of taken aback. General X lied to the Chief of Staff,
and the Chief of Staff does not want General X promoted. And
he says, that's it. And I said, I understand the message. And
that was the end of the conversation. It was a very short
conversation.
The investigators then asked General Ryan a very crucial question.
Do you think General Glosson knew you were a member of the promotion
board when he called?
I quote: ``In your mind, were you convinced that he knew your were a
board member?'' General Ryan's answer: ``Oh, yeah, I'm sure.'' The IG
followed up: ``No doubt about that?'' General Ryan: ``No doubt * * * In
fact, there was no question in the tenor and tone * * *''
After the conversation with General Glosson, General Ryan testified
that he felt ``disturbed.'' He said and I quote: ``After a point, it
started festering in me again * * * It really started bugging me * * *
I don't think I can get through it. I can't sign that piece of paper at
the end of the board and swear you know of no attempt to influence the
outcome of the board.''
Mr. President, those are the important points raised in General
Ryan's testimony.
Now, I would like to turn to General Nowak.
General Nowak's testimony is almost identical to General Ryan's
testimony.
Now, I would like to briefly summarize the key points raised in
General Nowak's testimony.
On or about October 6, 1993, after he had been appointed to the
board, General Ryan telephoned General Glosson to discuss a program of
mutual interest.
After the business at hand was concluded, General Glosson then made
these remarks to General Nowak. I quote:
I want to tell you something, but you cannot check with the
Chief to verify this or anything about it. I need you to know
that General X lied to the Chief. The Chief caught him and
knows he lied, and he should not be promoted. If, in the
course of your activities over the next few days, his name
and record should pop up on your radar screen, you need to
make sure that you do what's necessary.
General Nowak said ``that was the total extent of the conversation.
We hung up.''
General Nowark, like Ryan, was ``somewhat taken aback'' by what
General Glosson had said to him.
``My honest assessment,'' at that point ``was I was not influenced by
General Glosson,'' but ``I thought it was a poor thing to do.''
General Nowak, like Ryan, was convinced that General Glosson knew he
was a member of the board.
``It was clear to me,'' General Nowak said, ``that he wanted to
affect my evaluation of General X.''
To General Nowak, Glosson's intent was crystal clear.
General Myers' testimony tracks exactly with the testimony given by
Generals Ryan and Nowak.
Now. Mr. President, I would like to briefly summarize the high points
in General Myers' testimony.
On or about October 6, 1993, General Myers was notified that he would
serve on the 1993 major general board.
The next morning General Myers received a call from General Glosson,
who asked him to come to his office for a visit. General Myers agreed.
This is how General Myers remembers the substance of his conversation
with General Glosson.
General Glosson asked me: ``Have you been notified you're on a board?
And I said, yes sir, I talked with General Boles yesterday and he told
me I was on a board. And he said Well * * * that seemed to concern him
a little bit. And then he said, Well, I'm going to tell you this,
anyway. Then General Glosson said General X has lied to the Chief, and
words to the effect that the Chief doesn't want him to get promoted.''
In reply, General Myers asked: ``So what do you want me to do about
this?''
General Glosson replied: ``Well, there may not be much you can do * *
* Maybe you ought to just rate the record fairly low and hope it comes
up in discussion, comes up in the gray area, and then you, you know,
take it from there.''
General Myers testified that he told General Glosson: ``You put me in
a heck of a position here.'' Glosson agreed, saying ``yes, I know.''
And that was it. The conversation lasted no more than 5 minutes.
Like Generals Nowak and Ryan, Myers too was upset by what had
transpired.
For Myers, one of the most disturbing aspects of the conversation was
General Glosson's close personal relationship with the Chief of Staff,
General McPeak. Glosson was considered a ``confidant'' and member of
the Chief's ``inner circle.''
This thought might have passed through Myers' mind: could this be a
``black channel'' communication from the Chief designed to torpedo a
candidate?
Myers thought it was ``really a strange conversation and probably not
proper.'' He concluded that the Chief of Staff of the Air Force would
not attempt to influence a promotion board. The whole idea ``was
repugnant to me * * * The more I thought about it, it became
ludicrous.''
General Glosson's testimony presents a somewhat different picture of
what happened.
To briefly summarize, here are the important points raised during the
interview with General Glosson.
General Glosson admitted he had conversations with Generals Ryan,
Nowak, and Myers.
General Glosson admits he questioned the integrity of General X
during those conversations.
General Glosson admits telling them: ``that General X had lied to him
on more than one occasion'' in the past.
General Glosson even admits saying General X ``can't be truthful with
the Chief and the Chief didn't trust him,'' complaining General X would
be promoted anyway.
While the two versions of what happened bear many similarities, there
are crucial differences.
First, General Glosson denied telling Generals Ryan, Nowak, and Myers
that Chief of Staff did not want General X promoted.
Second, General Glosson denied knowing that Generals Ryan, Nowak, and
Myers were members of the promotion board.
General McPeak's testimony did not help General Glosson, not by a
long shot.
Mr. President, I would like to take a moment to summarize the key
points raised by General McPeak's testimony.
General McPeak denied telling General Glosson that General X had lied
to him.
And General McPeak also denied telling General Glosson, or anyone
else, that General X should not be promoted.
But the most damaging part of General McPeak's testimony was the part
about General Glosson's knowledge and awareness of promotion board
membership.
General McPeak's testimony clearly indicates that General Glosson had
access to this kind of information on a routine basis.
General McPeak testified that he would not be surprised or bothered
if General Glosson had obtained board members' names from the
``Personnel Office.''
McPeak said: ``lots of people know who's on the board. All the 4
stars do. And as I said, I've always put Glosson in a special
category...I can think of no issues that I haven't been willing to
discuss fully with Buster Glosson.''
Mr. President, as I said a moment ago, the principal evidence in the
case is the testimony of those involved.
What does the testimony tell us?
Does the testimony answer four critical questions?
First, did General Glosson tell Generals Ryan, Nowak, and Myers that
General X was unfit for promotion to higher rank?
Second, did General Glosson tell them that General X had lied to the
Chief of Staff and the Chief did not want him promoted?
Third, did General Glosson know that Generals Ryan, Nowak, and Myers
were members of a promotion board when he spoke to them?
Fourth, did General Glosson attempt to influence the outcome of the
promotion board?
We should not confirm General Glosson unless the answers to these
four questions are a clear, unambiguous ``no.''
Now, let us revisit the testimony, the principal evidence in the
case.
Does it support resounding ``no'' answers on those four questions.
Not quite.
What does the evidence show?
It tells us that General Glosson contacted three board members and
made very unfavorable remarks about the integrity of a fellow officer
whose name was before the board for promotion.
Now, why would General Glosson do such a thing?
You do not have to be a rocket scientist to figure it out.
General McPeak's testimony suggests that there is a high probability
that Glosson knew at least one or all three generals was on the board.
Glosson was trying to block General X's promotion.
The testimony of Generals Ryan, Nowak, and Myers is almost identical
about what General Glosson supposedly said.
General Glosson, by comparison, gives a somewhat different version of
what was said.
Mr. President, it comes down to this: His word against their word.
There is no room for miscommunication or misunderstanding. There is
no way to resolve the conflicting testimony.
What we have here are irreconcilable accounts of what happened. There
is just one inescapable conclusion: Somebody is lying.
The stories given by Generals Ryan, Nowak, and Myers are almost
identical. The consistency in their individual accounts lends
credibility to their testimony. But the consistency may not be
absolute.
Generals Myers and Ryan discussed their separate communications with
General Glosson before the board met and before being questioned by
investigators. That is significant.
Did they huddle to get their stories straight? Was this an act of
conspirators?
The conspiracy theory does not stand up to much scrutiny.
Neither General Ryan nor General Myers spoke with General Nowak, yet
his story is identical to theirs.
Moreover, Generals Ryan and Myers voluntarily disclosed their
discussions about the Glosson communications.
Conspirators do not freely acknowledge their discussions.
In sum, there is not one shred of evidence to suggest that three
generals conspired to fabricate the allegations against General
Glosson.
What benefit could they possibly derive from doing that?
Quite to the contrary, Generals Ryan, Nowak, and Myers came forward
at great personal risk and with no certainty about what the final
outcome would be. Theirs was an act of moral courage. Their action
could have blown up in their faces and ended their careers. It was very
risky business.
So what is the bottom line?
The inspectors general concluded that Generals Ryan, Nowak, and Myers
are telling the truth. Everything points in that direction.
The accounts given by Generals Ryan and Myers were corroborated by
the testimony of General Nowak, who testified that Glosson made
identical statements to him.
And if the three generals are telling the truth, then that leads to
one inescapable and difficult conclusion: General Glosson is not being
truthful.
Mr. President, I would now like to take a moment to read the IG's
important findings regarding General Glosson's conduct.
I will quote directly from the inspectors' general report. These are
the inspectors' general findings on General Glosson's conduct. I quote
from page 18 of the report.
We make the following findings based upon a preponderance
of the evidence:
A. Lt. Gen. Glosson improperly communicated with the
complainants and did so with the intent to influence their
consideration of General X for promotion during the Calendar
Year 1993 Major General Selection Board.
B. Lt. Gen. Glosson lied under oath during our interview in
describing the nature and circumstances of his communications
to the complainants.
C. Lt. General Glosson lied in his comments to the
complainants regarding General X.
D. Gen. McPeak played no role in Lt. Gen. Glosson's
misconduct.
There is an important issue that needs clarification.
The inspectors general are saying that there are two sets of lies.
First, the substance or guts of General Glosson's communications with
the three complainants was the first set of lies. Those lies were told
in early October 1993.
Second, General Glosson lied when interrogated by investigators. That
is the second set of lies. Those lies were told in late October 1993.
Mr. President, that is strong medicine, I know, but that is the
conclusion.
It is the first time the inspectors general have ever accused a high
official of lying under oath.
And I know the inspectors general only reached this conclusion after
long and careful deliberation. They stuck to the facts, and the facts
led them to those conclusions. It is as simple as that.
Now, the inspectors general did not present those conclusions without
first clearing them through the Department's legal counsel. That was
done.
The department's lawyers put their stamp of approval on the report.
The joint inspectors general report was reviewed and approved by the
General Counsel, Sheila Cheston and Judge Advocate General of the Air
Force, Major General Sklute.
I repeat, this is what the lawyers said:
We have reviewed this report and concluded that its
findings are supported by the evidence of record.
Their signatures appear on the letter transmitting the report to the
Secretary of the Air Force.
Those signatures are dated November 8, 1993.
The DOD General Counsel was neutral.
After reviewing the inspector general's report, Secretary of the Air
Force Sheila Widnall issued a formal letter of admonishment to General
Glosson for communicating with three designated members of the 1993
major general promotion board. She continued: ``this communication
called into question the integrity of a promotion candidate.''
That is the Secretary of the Air Force making those accusations
against the general.
Mr. President, from the start, I felt the inspectors general had
presented a solid case against General Glosson.
I had no reason to disbelieve the evidence. It was a credible report.
But the Armed Services Committee took a different view.
The Armed Services Committee has been struggling with the Glosson
nomination for months. Until now, it had been unable to reconcile all
the conflicting evidence.
The Glosson nomination has been like festering thorn in the
Committee's side.
So, in frustration, in August the Committee turned to the Defense
Department for help.
The Committee asked the Department to form an objective panel to take
a fresh look at all the evidence.
That was done, and I will not dwell on that process, since it will be
covered in detail, I am sure, by the chairman of the committee Senator
Nunn.
The independent panel's report is dated September 13, 1994.
For the most part, the panel's report is an excellent piece of work.
The panel examined the same evidence as the inspectors general did
and came to the same conclusions for the very same reasons. Only the
very bottom line is different. That is it.
The panel was less decisive on the question of lying under oath. But,
of course, that is a difficult question for anyone to wrestle with--
especially when a high-ranking official is involved.
But whether you go to the IG's report, ratified all the way up the
line, or whether you see the panel's report, except or that one issue,
everything else is the same.
The panel concluded that General Glosson did not tell a deliberate
lie. His recollection was inaccurate. He was, quite simply, mistaken.
In my mind, these are semantic differences.
General Glosson does not now remember things as they really happened.
Mr. President, the panel report does not clear General Glosson's
name.
It does not cast reasonable doubt over the IG's finding that Glosson
lied.
The panel report merely suggests that things may not--and I say may
not--be quite as bad as we thought they were, but they are still pretty
bad.
Maybe he did lie. Maybe he did not lie. We will never know for sure.
But there is no doubt about it, he tampered with the promotion board,
because here are the panels findings.
Here are the panel's main findings.
First, the panel concluded that preponderance of the evidence
suggests that the testimony given by Generals Ryan, Nowak, and Myers
was truthful and accurate.
Second, the panel concluded that General Glosson improperly attempted
to influence General X's promotion.
Third, the panel concluded that General Glosson's testimony was
inaccurate--but not because he was lying but because his memory was
foggy.
And forth, the panel concluded that the conflicts in evidential
material were irreconcilable.
The differences were simply too vast to be reconciled.
The panel report does not get General Glosson out of hot water.
It is difficult to believe that General Glosson's mind could fog up
so quickly.
He was first questioned by the inspectors general just 3 weeks after
the alleged conversations took place. How did he suffer memory loss in
such a short span of time.
While the panel report concludes that General Glosson did not lie, it
does not say that Glosson was truthful, either.
It does not say that General Glosson told the truth. That is an open
question--at least for the panel.
For the inspector general, General Glosson lied under oath when
questioned by investigators.
The IG is sticking to his guns. He is not backing off. He stands
behind his report: General Glosson lied under oath.
In a memorandum to the Under Secretary of Defense on September 21,
1994, the Deputy DOD Inspector General Vander Schaaf states:
I feel compelled to disagree with the conclusion in the
report that LtGen Glosson did not lie during the
investigation and that his testimony resulted merely from
inaccurate recollection.
Mr. President, the inspectors general believe that Glosson told two
distinct and separate sets of lies:
No. 1, the guts of his communications with the three complainants in
early October;
No. 2, his statements to investigators in late October;
My reading of the DOD panel report suggests the panel only addressed
the second set of lies.
The panel dodged the question of set No. 1.
Mr. Vander Schaaf, the Inspector General, said it was inconceivable,
that a senior officer like Glosson could not remember what he had said
to the three complainants.
For a skilled fighter pilot and the mastermind of the air campaign
against Iraq, it is hard to understand how he could so easily forget
what he said to three members of the promotion about a fellow officer's
suitability for advancement.
The three complainants did not suffer from memory loss. They did not
have any trouble remembering what was said.
Mr. President, I just read Mr. Vander Schaaf's memo in its entirety.
The Deputy IG says that General Glosson is lying, and he said that
barely 1 week ago.
While the panel concludes that Glosson suffered from inaccurate
recollection, the panel is unambiguous about the truthfulness of the
complainants. These are the three generals that resigned from the
promotion board.
The panel concludes that the testimony given by Generals Ryan, Nowak,
and Myers was truthful. It seems to me that that is the single most
important finding and that in and of itself is devastating for Glosson.
If the three generals are telling the truth, and the differences are
irreconcilable, then a reasonable mind might conclude that General
Glosson is lying.
Mr. President, it is important to revisit exactly the testimony given
by the complainants. The three generals testified that General Glosson
contacted each of them separately after they were appointed to the
board and told them that general X had lied to the chief, meaning the
chief of staff, and that the chief did not want general X promoted. The
panel says all of that is true. That is what Glosson said.
Glosson denies saying those things, and the panel concludes that
General Glosson improperly attempted to block the promotion of general
X.
These two conclusions, when coupled together, tell me that General
Glosson engaged in improper communications with members of a promotion
board. Such communications are expressly forbidden and prohibited by
paragraph 11 of the Air Force Regulations 36-9. A violation of those
regulations could be a court-martial offense under the Uniform Code of
Military Justice.
I asked the American Law Division at the Library of Congress to
examine this question: would an attempt to influence the major-general
selection board conceivably be subject to criminal prosecution? In
response to my request, an excellent memo was prepared by Mr. Bob
Burdette, legislative attorney within the division. I think he did a
good job. The short answer to my question is, yes, a prosecution under
articles 92, 133 and 134 could conceivably be undertaken.
I ask unanimous consent to print that memo in the Record.
There being no objection, the memorandum was ordered to be printed in
the Record, as follows:
Congressional Research Service,
The Library of Congress,
Washington, DC, June 29, 1994.
Subject: Whether An Attempt To Influence a Major-General
Selection Board Could Conceivably Be Subject To Criminal
Prosecution
To: Hon. Charles E. Grassley
(Attention of Charlie Murphy).
From: American Law Division
This memorandum responds to your request for an assessment
of whether a possible attempt to influence the deliberations
of a major-general selection board could conceivably be
subject to criminal prosecution. You have indicated that the
individual concerned spoke to persons who had been appointed
as members of a major-general selection board, made negative
comments concerning a particular individual who was under
consideration by that board for promotion to the grade of
major general, and represented his remarks as reflecting the
views of the Chief of Staff of the uniformed service
concerned. You have also indicated that the Inspector General
of the uniformed service concerned and the Inspector General
of the Department of Defense conducted a joint investigation
of the matter and concluded, in relevant part, that the
individual concerned had in fact ``improperly communicated''
with the members of the selection board ``with the intent to
influence their consideration'' and had lied under oath to
the investigators concerning the matter. Several distinct
charges described in the Manual for Courts Martial (1984)
could be implicated by such a set of circumstances. They are
discussed separately below.
Violation of or Failure To Obey a Regulation (Art. 92, UCMJ)
The stated purpose of a relevant regulation of the
uniformed service concerned\1\ is to set out ``objectives,
policies, and procedures for promoting officers to and
evaluating officers in the grades of brigadier and major
general.'' Article 92 of the Uniform Code of Military Justice
denominates ``failure to obey any lawful . . . regulation''
to be a punishable offense. Paragraph 16b(1) of the Manual
for Courts Martial describes the elements of the offense, in
relevant part, as follows:
---------------------------------------------------------------------------
\1\AF Regulation 36-9.
---------------------------------------------------------------------------
Violation of or failure to obey a lawful . . . regulation.
(a) That there was in effect a certain lawful . . .
regulation;
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the . . .
regulation.
As part of the Manual's explanation of what constitutes a
punishable violation, two items seem especially noteworthy
for present purposes. Paragraph 16c(1)(d), relating to
``knowledge,'' points out that: ``Knowledge of a . . .
regulation need not be alleged or proved, as knowledge is not
an element of this offense and a lack of knowledge does not
constitute a defense.'' Paragraph 16c(1)(e), relating to
``enforceability,'' states that:
Not all provisions in . . . regulations can be enforced
under Article 92(1). Regulations which only supply general
guidelines or advice for conducting military functions may
not be enforceable under Article 92(1).
In this regard, it might be observed that, far from
supplying only ``general guidelines,'' the regulation at
issue in the instant context is one which, inter alia, sets
out two relevant rules with considerable specificity. Part 11
of the regulation is captioned ``communications with
selection boards.'' The very first (which is to say, the most
prominent) sentence of paragraph a. thereof states, as
follows:
All communications intended to express the views of . . .
the Chief of Staff of the Air Force . . . must be in writing,
furnished to each member, and made a part of the board
record.
Use of the command ``must'' and the detailed duties
specified, taken together, imply a mandatory obligation
rather than a merely directive general guideline. The second
sentence of this same paragraph then explicitly declares
that:
Communications regarding particular officers are expressly
forbidden, unless unusual circumstances exist that would
preclude an officer's performance from being documented in
the official record (i.e., sensitive classified mission,
etc.).
A declaration that certain conduct is ``expressly
forbidden'' clearly seems to be a mandatory prohibition
rather than a mere general guideline.
In light of the foregoing, if the facts are as alleged, a
prosecution under Article 92 could conceivably be undertaken.
conduct unbecoming a gentleman (art. 133, ucmj)
Paragraph 59c(2) of the Manual for Courts Martial describes
the nature of the offense of conduct unbecoming a gentleman,
in relevant part, as follows:
Conduct violative of this article is action or behavior in
an official capacity which, in dishonoring or disgracing the
person as an officer, seriously compromises the officer's
character as a gentleman, or action or behavior in an
unofficial or private capacity which, in dishonoring or
disgracing the officer personally, seriously compromises the
person's standing as an officer.
Paragraph 59c(3) then offers, inter alia, examples of
offenses, as follows:
Instances of violation of this article include knowingly
making a false official statement; . . . [and] using
insulting or defamatory language to another officer in that
officer's presence or about that officer to other military
persons . . . .
If the facts are as alleged, a prosecution under Article
133 could conceivably be undertaken.
false swearing (art. 134, ucmj)
Paragraph 79b of the Manual for Courts Martial sets out the
elements of the offense of false swearing, in violation of
the so-called General Article (Art. 134), as follows:
(1) That the accused took an oath or equivalent;
(2) That the oath or equivalent was administered to the
accused in a manner in which such oath or equivalent was
required or authorized by law;
(3) That the oath or equivalent was administered by a
person having authority to do so;
(4) That upon this oath or equivalent the accused made or
subscribed a certain statement;
(5) That the statement was false;
(6) That the accused did not then believe the statement to
be true; and
(7) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in
the armed forces or was of a nature to bring discredit upon
the armed forces.
By way of explaining the nature of the offense, paragraph
79c(1) states, in relevant part, that:
False swearing is the making under a lawful oath or
equivalent of any false statement, oral or written, not
believing the statement to be true.
* * * * *
Unlike a false official statement under Article 107 . . .
there is no requirement that the statement be made with an
intent to deceive or that the statement be official.
If the facts are as alleged, a prosecution under Article
134 for false swearing could conceivably be undertaken.
conclusions
The foregoing discussion has identified three distinct
criminal charges which could conceivably be brought against
an individual who attempted to influence the deliberations of
a major-general selection board in the manner you have
described.
Robert B. Burdette,
Legislative Attorney.
Mr. GRASSLEY. In sum, Mr. President, a dark cloud still hangs over
General Glosson's name. General Glosson may have had a distinguished
career. I respect that. He may have been masterful in the way he
planned and directed air campaigns. That is very much to his credit.
But that was 3 years ago when Glosson was a brigadier general.
A distinguished military record cannot become a license for
misconduct. A good commander must be able to run the battle
successfully, and General Glosson has demonstrated his capacity to do
that. But as Senator Byrd has pointed out in another context, but I
think applicable to this, a good commander must have two qualities. He
or she must be able to defeat the enemy. That is a requirement. But a
good commander must also have ``clean hands.'' In other words, a
military commander must be of unquestioned integrity. In Senator Byrd's
mind a commander must have clean hands or the commander does not pass.
Mr. President, General Glosson does not have clean hands.
If a military commander's integrity has been called into question,
then those who must follow him or her into battle may not follow when
the going really gets tough. Integrity is the cornerstone, it is the
very foundation of leadership.
Mr. President, General Glosson did in fact monkey with the promotion
board, and he may or may not have lied about it. He is suspected of
lying about it. That sets a terrible example if you are trying to clean
up the military promotion process. If we reject the nomination, that
will send a stern warning to military officers that if you tamper with
the promotion board, you will get nailed.
In other words, I think it means that we have to have zero tolerance.
We must demand accountability, both from within the ranks and at the
top. That is the signal that the Senate should send. Senate
confirmation of General Glosson would send the wrong signal. If we
confirm General Glosson, we would be saying, so long as you have a
great military career, it is OK to engage in misconduct. Anything goes.
Do not worry. The Senate will confirm you. So I urge all my colleagues
to vote against General Glosson's nomination.
Early in the debate I spoke about the Armed Services Committee's
persistent, continuing effort to clean up the military promotion
system. Over the past 5 years or more, the committee has worked very
hard to bring some integrity to the process. General Glosson's alleged
conduct is a step backward. Glosson's behavior threatens the integrity
of the military promotion boards. His communication with three members
of the 1993 major-general selection board pose a direct threat to the
integrity of the board. That threat was very real. It threatened to
compromise the impartiality of that board. Because of Glosson's
behavior, three sitting board members felt honor bound to resign and
did. General Glosson's communication also poses a threat to future
promotion boards, unless, that is, General Glosson is disciplined in
appropriate ways; others will follow General Glosson's example. And if
they see the Senate ignoring what General Glosson did, they will say
that it is a stamp of approval on this sort of undue influence on a
promotion process. General Glosson's alleged conduct goes right to the
heart of the problem. How do you protect the integrity of the military
promotion process?
He is accused of violating the rules that the committee has worked so
hard over the last 5 years to put in place. The goal of the committee's
work in this area is clear--to insulate promotion boards from improper
communication and improper influence. The whole idea is to make sure
that the best, the very most qualified officers are selected for
promotion and rise to the top.
Mr. President, there is a direct link between integrity of the
promotion process and the integrity of the whole officer corps. This
point was brought home by testimony of former Chief of Staff of the
Army, General Gordon R. Sullivan. I wish to quote from General
Sullivan's testimony before the Armed Services Committee. His thoughts
on this important subject are presented on page 213 of the committee
report on the fiscal year 1992 defense authorization bill, and that is
report 102-113. General Sullivan said this, and I quote:
There is a direct link between the integrity of the
selection board process and the integrity of our officer
corps. The link lies in the confidence our officer corps has
in the objectivity and the professional ethic of the board.
Our selection must be fair and must be impartial and based
upon demonstrated potential instead of subjective criteria,
and they must be seen as such by our officer corps.
General Sullivan's thoughts should tell us something about the
Glosson nomination. It carries an important lesson. If General
Glosson's improper communications with the 1993 major-general promotion
board are tolerated by the Department of Defense and the Senate, then
we could be undermining the integrity of the promotion process as well
as the integrity of the officer corps.
I wish to take a moment to review some of the committee's most
important work in this field. I think that will help put the Glosson
nomination in better perspective.
Back in November 1991, the committee issued a report entitled, ``The
Conduct of Proceedings for the Selection of Officers for Promotion in
the U.S. Air Force.'' That is Senate report No. 102-54. The guts of
that report was subsequently reprinted in another committee document on
the same topic, report No. 102-4892 dated September 1992.
This report contains the results of numerous investigations. The
findings presented in the committee report in turn became the basis for
legislative remedies proposed in the fiscal year 1992 defense
authorization. These documents, reports issued by the Armed Services
Committee, contain very important information. They tell us what is
wrong with the military promotion process.
One of the most serious deficiencies identified by the committee is
this: Improper communications between senior officials and promotion
boards over specific candidates. That is the key problem identified by
the committee. Improper communication.
Does that not sound familiar? That very same problem was created when
General Glosson contacted 3 members of the 13-member board about
general X. It is the same old problem that the Armed Services Committee
studied and felt that something must be done about it back there in
1987. In 1987, the committee uncovered serious irregularities with the
1987 Marine Corps major general promotion list. I want to quote from
page 213 of that committee report numbered 102-113:
One of the key problems arising out of the 1987 inquiry
involved verbal inquiry communication about specific
candidates by senior officials to the president of the
selection board.
That sounds very much like the Glosson case again, only Glosson did
not contact the president of the board--at least we do not know of
that. But he did contact at least three other members of the board. So
when the committee found out about improper communication with the 1987
Marine Corps major generals board, the committee took the issue
straight to the top. They took it straight to the Deputy Secretary of
Defense. At that time, that was Secretary Cap Weinberger. In his usual
way, Weinberger assured the committee that the problem was under
control.
On June 13, 1987, the promise of Weinberger's directive was given
ordering the military departments to issue regulations to ``ensure the
integrity of the promotion process by regulating the flow of
information to the selection board.''
The committee thought the departments would finally develop and
implement a new set of rules designed to insulate promotion boards from
improper influence and communications from senior officials.
The committee thought that those rules were in operation. But I think
the committee soon found out otherwise. After reviewing a number of the
nominations in 1991 and 1992, the committee quickly realized that the
military departments had failed to comply with the Weinberger
directive. The committee discovered that the Air Force was the worst
offender. The Air Force was just flat out ignoring the Weinberger
order. The committee was correctly angered by the Air Force's defiance.
I would like to quote from page 214 of that same report:
The failure of the military departments to implement a DOD
directive on a timely basis is inexcusable.
This is the Armed Services Committee of the Senate speaking.
When it involves a directive that the Secretary has issued
to address problems of abuse in the promotion selection
process, the failure is intolerable. The failure to implement
applicable laws and regulations undermines the integrity of
the selection board process.
Mr. President, I do not care if anybody in this body listens to me,
but I would like to be able not to hear a buzz behind me.
The PRESIDING OFFICER. The Senator is correct. We will have order in
the Chamber so the Senator can be heard.
The Senator from Iowa.
Mr. GRASSLEY. Again, I am not asking so I can be heard. I am only
asking so I am not disturbed.
The committee was furious. I think this statement states that. The
hammer fell on a man named Thomas J. Hickey. He was Deputy Chief of
Staff for Personnel from 1981 to 1991. In that post, he held rank of
lieutenant general. Hickey got axed. He was held accountable. General
Hickey was blamed for failing to comply with Secretary Weinberger's
directive. And he was blamed for the ``existence and continuation of
irregular and improper Air Force officer promotion policies and
procedures.''
General Hickey was nominated for retirement in grade of lieutenant
general just like the Glosson situation. But do you know what the
committee refused to do? The committee refused to act on the Hickey
nomination for retirement as lieutenant general unlike Glosson. So
General Hickey did not retire in grade. He was forced to retire a lower
grade as major general. The committee came down hard on General Hickey.
Why? Because the committee was ticked off. They had been told that
things were going to change. Secretary Weinberger sends out a memo. But
4 years later, the same old business--business as usual.
The committee was ticked off because General Hickey failed to comply
with these directives and for allowing improper promotion policies and
procedures to continue undiminished.
Mr. President, Mr. Bob Goldich of the National Defense Division of
CRS has prepared an excellent background memo on the Hickey case.
I ask unanimous consent to place that CRS memo on General Hickey in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congressional Research Service,
The Library of Congress,
Washington, DC, June 27, 1994.
To: Hon. Charles E. Grassley, Attention: Charlie Murphy.
From: Robert L. Goldich, Specialist in National Defense,
Foreign Affairs and National Defense Division.
Subject: Retirement of Maj. Gen. Thomas J. Hickey, U.S. Air
Force, in the grade of major general.
This memorandum is provided in response to your request of
June 24, 1994, regarding the retirement of Major General
Thomas J. Hickey, U.S. Air Force, in the grade of major
general. Prior to his retirement, General Hickey had been
serving as Deputy Chief of Staff for Personnel of the Air
Force in the grade of lieutenant general. General Hickey was
nominated by the President for retirement in the grade of
lieutenant general on September 11, 1990. However, on
November 27, 1991, the Senate Armed Services Committee
announced that it would not act on the nomination.\1\ By
statute [10 USC 601(b)(4], this required General Hickey to be
automatically retired in his permanent grade of major general
within 90 days of relinquishing his post as Deputy Chief of
Staff for Personnel of the Air Force on October 7, 1991.\2\
---------------------------------------------------------------------------
Footnotes at end of article.
---------------------------------------------------------------------------
Press reports state that the Senate did not act on General
Hickey's nomination for retirement in the grade of lieutenant
general because of his responsibility, as Deputy Chief of
Staff for Personnel of the Air Force during 1986-1991, for
the existence and continuation of irregular and improper Air
Force officer promotion policies and procedures.\3\
In a committee print published in late 1991 and a report
published in late 1992, the Senate Armed Services Committee
``identified the following systemic deficiencies in the Air
Force officer selection process:
(1) Failure to issue implementing regulations required by
applicable statutes and Department of Defense directives to
ensure the fair operation of the selection board process.
(2) Use of a preselection process that improperly excluded
ninety percent or more of the eligible officers from
consideration by statutory selection boards.
(3) Improper communication to selection boards of
``priority list'' [of officers under consideration for
promotion to the next higher grade] prepared by senior
officers.
(4) Improper communication between the Air Force leadership
and selection board members.''\4\
Press reports appeared to suggest that of these four types
of irregularities, that which generated the most concern was
number (2), the preselection process.
The Committee was particularly concerned that these
procedures had continued after a 1987 Committee investigation
into Department of Defense (DOD) officer promotion
procedures. This latter investigation was prompted by
irregularities in the 1987 consideration of Marine Corps
brigadier generals for promotion to the grade of major
general. The specific issue that led to the 1987
investigation involved item (4), above--improper
communications between senior uniformed leadership of a
service and selection board members. However, the corrective
action taken by the Secretary of Defense in both 1987 and
1989 involved the issuance of revised DOD directives which
had broader aims of insuring ``the integrity of the promotion
process by regulating the flow of information to a selection
board,'' not only improper communications by senior
officers.\5\
There is no indication in the press reports that General
Hickey was directly implicated in actively instigating any of
these irregularities. However, although the two Senate Armed
Services Committee documents do not mention General Hickey by
name, they do discuss at length the participation of the Air
Force Deputy Chief of staff for Personnel (a position
occupied by General Hickey during the time in question) in
the continuation of improper procedures after the 1987
incident--and the corrective actions which should have
prevented their recurrence. The Senate Armed Services
Committee apparently believed that, because General Hickey
had been the Air Force's senior uniformed personnel manager
when the 1987 incidents and investigations occurred, and
presided over the continuation of these irregularities into
the early 1990s, he should be held responsible.
If we can be of further assistance, please call me at
extension 77633.
\1\Joe West, ``Hickey Forced to Retire with 2 Stars, Not 3,''
Air Force Times, Dec. 9, 1991: 3.
\2\At the time of General Hickey's retirement, the statute
provided for a 90-day maximum in which a general or flag
officer appointed under its provisions could retain his or
her three- or four-star grade while ``awaiting retirement,''
Subsequent legislation, effective April 1, 1992, reduced the
maximum to 60 days. Section 502(b), P.L. 102-190, December 5,
1991, 105 Stat. 1354, the National Defense Authorization Act
for Fiscal Year 1992.
\3\Joe West, ``Hickey Forced to Retire with 2 Stars, Not 3,''
Air Force Times, Dec. 9, 1991: 3.
\4\U.S. Congress. Senate. Committee on Armed Services. Report
on the Conduct of Proceedings for the Selection of Officers
for Promotion in the U.S. Air Force. October 8, 1992.
Washington, U.S. Govt. Print. Off., 1992 (102nd Congress, 2nd
session. Senate, Report no. 102-482): 2 (hereafter cited as
SASC Report). Also cited in U.S. Congress, Senate. Committee
on Armed Services. The Conduct of Proceedings for the
Selection of Officers for Promotion in the U.S. Air Force.
November 26, 1991. Washington, U.S. Govt. Print. Off., 1991
(102nd Congress, 1st session. Senate. Committee Print No.
102-54): iii (hereafter cited as SASC Print).
\5\SASC Report: 3-4; SASC Print: 4-5.
Mr. GRASSLEY. The committee was angry about certain improper
promotion policies and procedures that blossomed under General Hickey.
What did the committee find most troublesome? Guess what? It is still
the same old story--improper communication between the Air Force
leadership and the selection board members; same old business.
The committee was also disturbed about the existence of the
preselection processes. These are the things the committee disliked
about the Hickey operation. The committee also was disturbed about the
continuation of these abusive practices that it recommended putting
strict remedies into law.
The committee recommended establishing a statutory requirement for
regulations to govern the flow of information to selection boards. The
purpose of this legislation the committee said was to ``ensure the
independence of the selection boards and to eliminate improper
communication with and improper pressure on promotion selection
boards.''
This legislation was proposed in the fiscal year 1992 defense
authorization bill. It consisted of eight separate statutory
requirements. These are summarized on pages 214 through 216 of the
report No. 102-113.
I want to revisit one provision of particular importance. The key
provision is summarized in paragraph 6. Provision number 6 was tough.
It was harsh. It was designed to curb improper influence on board
members. Attempting to influence a board's proceedings was going to be
a criminal offense, if the committee got its way.
This is the what Armed Services Committee was recommending in July
1991. That was just 3 years ago. That is what the committee wanted.
They wanted criminal sanctions for monkeying with the promotion board
process.
I would like to reread what the committee said on making improper
influence a criminal offense on page 215.
Improper influence on the board would be prohibited. In
violation of regulations implementing this section would
constitute a criminal violation of the Uniform Code of
Military Justice. If a senior leadership of a service
disagrees with the selections recommended by the board, the
leadership's recourse is not to discuss the matter with the
members of the board. The leadership was to use the statutory
procedure for recommending that the President not approve the
list in whole or in part.
And those are the words directly from the committee report. As I
understand it, this provision never became law, but it speaks very
clearly to the committee's attitude on improper influence of promotion
boards. The committee's position was clear: Zero tolerance for board
tampering. Such conduct was not to be tolerated. So why is the
committee now willing to tolerate such behavior on General Glosson's
part?
I hope the committee or the chairman sometime can answer two
questions: Was it the committee's intention in July 1991 to make
improper influence of the promotion board a criminal offense under the
Criminal Code of Military Justice, and exactly what was intended in
that suggestion? And then I ask: Did General Glosson attempt to
improperly influence the 1993 major general promotion board?
After the Hickey affair, the committee thought the new rules were
finally in operation. The new rules are embodied in Air Force
regulation 36-9. The new rules may indeed be working, but they are not
followed by everyone, because General Glosson came along and took it
upon himself to break the rules. General Glosson contacted three
members of the promotion board, questioning the integrity of a fellow
officer who was before that board. General Glosson told them General
``X'' could not be trusted, that he had lied to the chief of staff, and
the chief of staff did not want him promoted. That was improper
communication, just as it is now, when Secretary Weinberger issued
those regulations. It is an improper communication, if there is such a
thing.
Communications of this nature about a particular officer are
expressly prohibited by paragraph 11 of these Air Force regs. General
Glosson violated paragraph 11 of the Air Force regs. If judged by the
standard proposed by the committee in 1991, it seems to me that General
Glosson might have engaged in criminal activity. If judged by paragraph
11, he could first face a court-martial.
There may be an inconsistency between the committee's action on the
Hickey nomination and the proposed action on the Glosson nomination.
General Hickey was hammered for failing to implement policies and
procedures designed to insulate promotion boards from improper
communications from senior officials. General Glosson, by comparison,
violated the very same rules that General Hickey failed to implement.
Yet, the committee is allowing him to skate.
I do not know which is worse, failing to implement rules or violating
those same rules. You will have to answer that for yourself.
There seems to be an inconsistency, however, in the way that the
committee handled these two nominations. It could be a double standard.
Does General Glosson have more friends in Congress than General Hickey
did? We have essentially the same problem, but we have different
people. I do not understand the difference. The committee needs to
explain why the Hickey and Glosson nominations have been handled in
such different ways. I want to understand why the two were handled in
these different ways.
As I said in the beginning, the Armed Services Committee worked very
hard over the past 5 years to clean up the military promotion system.
If the committee's efforts are to be effective, it needs to hold the
Department's feet to the fire. But we will never really clean up the
military promotion process if we let guys like Glosson off the hook.
The Armed Services Committee's persistent and continuing efforts to
bring integrity to the promotion system are working. Progress has been
achieved.
Mr. EXON. Will the Senator yield for a question?
Mr. GRASSLEY. Yes.
Mr. EXON. I will ask a question of my friend. But, first, I
compliment my colleague from Iowa, with whom I have worked on many
cases. I compliment him for his very comprehensive and thorough study
he has done in this matter. As the senior Member of the Armed Services
Committee who generally supports what that committee has done, I am
particularly impressed with the recitation of the case you have made
against General Glosson. We have devoted a lot of attention to him in
the Armed Services Committee, as you can imagine.
I appreciate some of the good things you have said about the work of
the committee in this regard. I was one of those Senators who voted
against sending the Glosson matter to the floor favorably. Although
earlier I intended to support him, the more I looked into it,
notwithstanding his outstanding service in the past, I happened to come
down basically on the side of the points that have been made by the
Senator from Iowa on this whole matter.
So when this comes to a vote, I will be supporting the Senator from
Iowa on the Glosson matter, not on the other. My question is simply
this, and it is twofold: Number one, we have some wrap-up matters that
this Senator is interested in, as is probably the Senator from Iowa,
that need to be addressed very promptly so that we can get those
matters over to the House of Representatives for their action before
they adjourn.
I would also, at an appropriate time, ask the Senator from Iowa about
how long he intends to continue in this discussion, for the benefit of
all. But I ask the Senator, possibly, if he can work out something to
not lose his right to the floor, to give the managers a chance to move
some matters that have to be moved, that have been unanimously approved
by both sides of the aisle, and get those to the House. Timeliness is a
key factor here.
Mr. GRASSLEY. I will interrupt here. I think the point the Senator
raises is a good one. I have already had discussions with our
Republican whip, as it is his desire to take up some of these important
measures. He has assured me that if I yield the floor momentarily, I
will not lose my right to the floor, and that he would go through the
business as he has to, and I will get the floor back.
(Mr. CONRAD assumed the chair.)
Mr. BREAUX. If the Senator will yield for a question, we plan to ask
unanimous consent that the Senate be allowed to proceed as in morning
business to do exactly that, without affecting the right of the Senator
to retain the floor as soon as this business is concluded.
Mr. GRASSLEY. Then, Mr. President, for that purpose, I will yield.
____________________