Joint Ethics Regulation (JER), DOD 5500.7-R 5 C.F.R. section 2635.702
(b) Appearance of governmental sanction.
…an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another…

On 20 July 2007, the Inspector General (IG) of the Pentagon published the report of its investigation of allegations of misconduct by military officers who participated in a “Christian Embassy” promotional video.  On or about 4 August the IG released a public version on its website.  Shortly thereafter, Michael Weinstein’s Military Religious Freedom Foundation (MRFF) celebrated its role as the instigator of that investigation nearly 9 months prior.  In typical hyperbolic fashion, Weinstein responded by saying

[The report reveals a] long and deep collusion with a fundamentalist, religious missionary organization, the ‘Christian Embassy’. That these senior Pentagon officials control the world’s largest nuclear, chemical and biological arsenal should eviscerate the American public’s trust and confidence in their military and civilian leadership…[The] MRFF intends to file expeditiously a comprehensive Federal lawsuit that will rapaciously pursue legal remedies to the multitude of horrific Constitutional violations this DoD/IG report reveals.

Other organizations were not so convinced.  The Family Research Council was concerned that

disciplinary action…taken against seven high-ranking military officers for appearing in a Christian video [might] bolster efforts by liberals to silence the religious expression of evangelicals in the military.

The American Center for Law and Justice (ACLJ), which decided to legally represent two of the officers, responded by saying

[T]he Inspector General painted with a very broad brush and concluded that these officers…had violated internal policies because they were on camera and wearing their uniforms…We think the legal conclusions of the Department of Defense Inspector General are incorrect as a matter of fact and as a matter of law.

Military Christians must know what is and is not permissible; they must aggressively correct that which is not, and defend that which is.  If the IG is correct, it is important to fully understand the situation and pass on the “lessons learned” to other Christians.  If the IG is incorrect (as the ACLJ asserts), it is important not to come across as defending fellow Christians even if they were in the wrong, as some are wont to do.  Thus, the report and applicable regulations have been carefully reviewed.  A judicious analysis follows.

The report is available online, as is DoD 5500.7-R, “Joint Ethics Regulation (JER),” (Sections 2635.702(b) and Section 3-300.a) and DODD 1334.1, which governs military uniform wear. 

In summary, it does appear that the ACLJ may be at least partially correct.  The IG appears to have re-defined the interpretation of some military regulations and then retroactively applied that standard to the officers’ conduct.  The regulations themselves appear to have been very broadly applied.

Overview

The IG opened the report by asserting that religion or religious concerns were not at issue.

[W]e determined that [religious accommodation] was not germane to this investigation, as the matter did not involve members engaged in religious observance or practice. We also found no evidence that the DoD personnel participated in the video for the purpose of proselytizing…

This is a reasonable conclusion, so long as the remainder of the investigation is independent of any religious affiliation, which it tends to be (with a caveat addressed later).  The IG also determined that the officers were acting in their personal capacity, not in their professional roles.  That is also not an unreasonable conclusion.

Analysis

With this groundwork laid, it is helpful at this point to step through the accusations against the officers and evaluate the IG’s justification.  The IG’s logic in each officer’s case is nearly identical (indeed, it is often verbatim); thus, the specifics of only the one officer will be addressed.

According to the IG, Major General Peter Sutton’s interview illegally “[created] the appearance that he was acting within the scope of his official position…This conclusion was based on [the investigators’] determination that:

He appeared in uniform with his rank clearly displayed.

He was filmed in…the Pentagon, as well as an alcove in front of flags and campaign streamers, settings with significant visual impact that conveyed an air of official support for his appearance.

His address to an audience in…uniform with his rank, decorations, and badges visible suggested to viewers that he participated in Christian Embassy activities and the interview in the normal course of a duty day.

His remark that, “What’s important to me is in the context of our work here in the Pentagon is to get together with other believers and be encouraged and it makes such a big difference,” confers approval of and support to Christian Embassy, and implied that he spoke for a group of senior military leaders rather than just for himself.”

The IG also concluded that as a uniformed officer, “Maj Gen Sutton could [be perceived] as an official DoD spokesperson” and that his actions “[implied] that DoD endorsed Christian Embassy.”  These actions allegedly violated JER Section 2635.702(b), “Appearance of governmental sanction,” Section 3-300, personal participation with a non-Federal entity, DoDD 1334.1, “Wearing of the Uniform,” and AFI 36-2903, “Dress and Personal Appearance of Air Force Personnel.”

The alleged violations of the uniform wear regulations will not be addressed here because they are legal “add-ons.”  That is, if the interview itself was authorized, then uniform wear was authorized; if the interview was not permissible, then uniform wear also was not.  Proper uniform wear was incident to the issue, not the cause of it.  Thus, the uniform regulations are not germane.  The Joint Ethics Regulations (JERs) are the heart of the matter.

The IG’s primary assertion was that the officers created the appearance of their official positions in a personal capacity.  This allegation is based on JER 1-6 3-300, which states that

…DoD employees may not use or allow the use of their official titles, positions or organization names in connection with activities performed in their personal capacities…

#1: Display of Rank

The first justification for the JER violation (asserting that an appearance of “official position” was created) was the fact that the General was wearing his rank.  It is worth noting that the JERs specifically state that

Military grade and military department as part of an individual’s name (e.g., Captain Smith, U.S. Navy) may be used, the same as other conventional titles such as Mr., Ms., or Honorable, in relationship to personal activities. (DOD 5500.7-R 5 C.F.R. section 2635.702e and 3-300, emphasis added)

Thus, the General was allowed to be identified as a General.  The IG’s report stated that, excluding the Chaplain,

All of the officers…were identified in text boxes by name, rank, and branch of service…

The General’s rank, then, was lawfully displayed on the screen.  The JERs clearly state that the General can be identified by his rank; his rank epaulettes, which were “clearly visible,” are merely one means by which he can communicate that rank.  The contention that the General could be addressed by and display his rank—but not wear it—is inconsistent.

#2: Surrounding Environment

The second justification for the JER violations was the environment displayed in the interview.  Throughout the report, the IG implies that the Pentagon is clearly identifiable, and that such identity creates an ‘official air.’  The IG’s assertion that the Pentagon is instantly recognizable is an unsubstantiated assumption, evidently made by someone who works there.  For a non-Pentagon military member, it is not possible to tell what building the shots take place in, nor if they took place in a government building at all.  Even if the Pentagon were recognizable, it is unclear what ‘undue influence’ the IG thinks this would cause.

Referencing the JERs, there is no prohibition on filming in the Pentagon or in front of flags, nor is there any guidance in any regulation that might suggest that such an environment could be ethically misconstrued.  The IG’s ‘intuitively obvious’ conclusion was based on hindsight after viewing a post-processed video that generated a complaint, and it was not grounded in fact—only supposition.  The conclusion was an unjustified opinion.

#3: Third Party Video 

The third justification is based on a uniformed address to an audience.  For this, it is best to reference the general’s reply.  From the report:

Maj Gen Sutton’s counsel also objected to our consideration of Maj Gen Sutton’s address in front of an audience, stating that it was filmed without Maj Gen Sutton’s knowledge or consent.  [Regardless,] the use of the video…implied DoD endorsement.

Thus, the IG concluded that the use of a video that the general did not know about or authorize was still his responsibility.  The conclusion is factually and legally incomprehensible.

#4: Positive Comments

The last justification is the most interesting, because in it the IG judged the content of each man’s speech—and left the door open for the most significant future challenge.

First, the IG said that each officer “implied that he spoke for a group of senior military leaders…”  However, each officer said different things, the implication of ‘other leaders’ is only inferred, and the ‘other leaders’ are not defined by the IG.

More telling, in each case, the IG concluded that, because the officers ‘spoke positively’ about Christian Embassy, they violated the JER by “[conferring] approval…and support…”  More significant than Sutton’s comment was the IG’s conclusion of Brigadier General Caslen’s:

By speaking of Christian Embassy as a beneficial force in his life…he conferred approval of and support to Christian Embassy’s activities.

With the IG’s last justification for supporting a claim of regulatory violation (which was similar in the case of each officer) it becomes increasingly easy to see why the ACLJ said that the IG “painted with a very broad brush.”  It is a broad—and bold—statement to assert that an officer cannot say an organization was a ‘positive influence’ in his life.  Beyond the questions of fact and over-interpretation, here is where the officers may have room to claim grievance under regulations for religious accommodation, if they are essentially forbidden from speaking positively about the religious influences in their lives.  The IG also broadly categorized any uniformed officer as an ‘endorsing, official spokesman,’ a categorization heretofore unknown.

Mitigation

Each of the officers also claimed mitigating circumstances, the most significant of which was the assertion that each acted on good faith that the Chaplain was correct when he said the interview had been approved through public affairs.  According to the IG, it had not—and the officers were obligated to confirm that for themselves, rather than take the word of the Chaplain.

The IG also frequently referenced the video scenes before and after the interview clips, implying that the post-production edits added to the “official” feeling of the officers’ remarks.  The officers stated—and the IG acknowledged—they had no editorial or production control over the video, nor authority over how it would be used.  However, the IG stated that “every military officer bears responsibility for his or her actions; failure to ascertain the extent of the use of [the] videotaped interview does not excuse [them] from [the] consequences of [their] participation.”

Conclusion

While it appears the ACLJ may have a case as “a matter of fact and as a matter of law,” not all of the officers will be defended so easily.  While the IG made much of the implication of an official position in the officers’ appearances, one officer did mention his actual official position.  The Chaplain—now retired but still within the reach of military law—still has the allegations of unauthorized badges and misleading requests to deal with.  (There is insufficient detail in the report to draw further conclusions on the Chaplain.)

Though the Military Religious Freedom Foundation (MRFF) celebrated the report, it was not entirely pleased, and its continuing accusations may belie the underlying reasons that it lodged the original complaint. 

While the MRFF celebrated the ‘conviction’ of the 7 high-ranking officers, it blasted the fact that now-Secretary of the Army Peter Geren was not found to have violated the JERs when he, too, was interviewed.  According to the IG, Geren was not identified by position, did not wear a uniform (as a civilian), and his interview was in a non-descript location, so though he gave ‘approving’ comments, they did not give the appearance of his official position.  (Notably, his comments were similar to BG Brooks, in which he said Christian Embassy was a ‘positive influence,’ “a rock” that he could “rely on.”) The MRFF’s contention that Geren, too, violated the JERs indicates that they believe that even if the officers had been out of uniform and filmed in a non-descript location—as Geren was—they still could not have spoken positively about Christian Embassy.  Thus, in the MRFF’s interpretation, there is almost no conceivable circumstance in which the officers could have permissibly spoken publicly in a positive light about Christian Embassy.  It appears that the MRFF would have the IG’s brush be even broader; the only way to totally prevent the ‘appearance of sanction,’ they assert, is to make sure there is no legal way that an officer could ever speak positively about his religious support or his faith.

The IG’s reliance on its somewhat unique interpretations of the JERs and its liberal inferences of the officers’ implications may provide the impetus for its conclusions to be successfully challenged.  Like the Academy allegations that were ultimately unsubstantiated—but generated slews of changing regulations—this report, too, may end up overruled.  Still, Weinstein has spun the report in a way that even the IG claimed it did not intend, and the damage has been done.  Regardless of the ultimate outcome in either case, Weinstein has gotten what he wanted:  vast media exposure for himself and negative publicity for military Christians.  If nothing else, Weinstein has garnered a public relations victory in his ‘war’ against evangelical Christianity.

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