Not Guilty!

scales_of_justiceC-17 pilot Jared Foley was acquitted on all charges by a 10-officer panel on Friday. As we reported previously, he was being tried for a variety of procedural errors on a flight that ended with several West Virginia National Guard SF soldiers off the drop zone at Camp Harrison, MT, and one of the Green Berets, Francis Campion, dead.

The Olympian reported:

He embraced a courtroom full of supporters, most of them Air Force officers in flight suits or brown leather jackets.

His case caught the attention of airmen throughout the service because Foley was a well-respected pilot who believed he was following Air Force regulations when he permitted what became a fatal airdrop on July 10, 2011 over a Montana air field.

Foley maintained that the Army leaders on the ground and in the air cleared the last jump even though a previous one had resulted in a soldier landing outside the established drop zone. The soldiers said the jumper landed off course because of his own error.

Furthermore, Foley said yesterday that the feedback he received from computer reports and service members on five previous passes over the airfield showed that the mission was going well.
Read more here: http://www.theolympian.com/2012/12/14/2353704/accused-jblm-pilot-not-guilty.html#storylink=cpy#storylink=cpy

The ambitious JAG who’d been looking for Foley’s scalp, Captain Mark Rosenow, and his staff apparently fled the courtroom without speaking to the press. Foley and his defense attorneys were visibly moved — one of them, Capt. Sarah Carlson, to tears — but the defense lawyers too declined to speak to the media.

SGT Francis Campion, USSF, WV ARNG. RIP.

SGT Francis T. Campion, III, USSF, WV ARNG. RIP.

The SF guys, Campion’s friends, didn’t support the court-martial of Foley, and blamed their own unit’s failure to follow procedures, which led to underreporting the winds on the DZ. Campion’s mother and sister attended the trial, but made it clear they were looking for facts, not a guilty verdict. Foley’s own commanders testified in his defence: “One of the finest officer I’ve worked with, and “Above reproach,” was Lt. Col. James Sparrow’s assessment of Foley.

Rosenow, an ambitious Academy graduate (2003) from an Academy family, and a non-pilot in a pilot’s service, may have overreached when he lectured the jury — containing 3 aviators and 7 support officers — about Foley’s alleged pilot errors and about black-letter Air Force regulations.

The particular regulation at issue, Rosenow complained, required a drop to be aborted any time any personnel or cargo landed outside the surveyed area of the drop zone. But there are several versions of the regulation, which themselves are  inconsistent; and the Air Force is only one partner in the air delivery equation. The unit on the ground (and in personnel drops, on the jump) is also a factor. The regulation, in Rosenow’s interpretation, rejects, denies, abnegates all agency for the jumpers and ground unit.

Speaking from retrospect of 27-odd years SF service, some of it in the NG SF, many if not most jumps include a tree or other obstacle landing. We’ve personally touched down in trees, bushes, snowbanks, hard runways, aluminum bleachers. swamps, rivers and creeks (never a lake or the ocean, except deliberately), and on top of a (shut down) CH-54 Tarhe helicopter. We’ve near-missed farm-machinery and the wreckage of a MiG. We’ve watched fellow jumpers whack wires. buildings, a greenhouse, trucks, cars, vans, a tank, and a dumpster. In no case was the remainder of the jump canc’d. The only way you learn to steer your chute is by steering your chute.

Another regulation Foley supposedly broke was programming an airdrop computer system using the descent profile for an MC-1 chute instead of the SF-10s that Campion and his teammates were jumping. Rosenow, again, a well-connected career lawyer who chose to depart the Academy and go right to political fellowships and law school instead of squadron service and flight school, excoriated Foley for this, but it’s a distinction with very little difference.

A certain factor in the acquittals was not mentioned in the news coverage that we have read: the building that Campion hit was a surveyed obstacle on the DZ survey, and it was briefed to the jumpers in the Jumpmaster brief. In other words, all the jumpers heard about it, they all knew it was a hazard, they all had steerable chutes. It’s possible that Campion was avoiding other jumpers or other obstacles and put himself on collision course with the structure. These things can happen during descent, and sometimes you’re unimaginably busy all the way down. Unfortunately, he didn’t survive to tell us.

Foley’s co-pilot, Captain Joy Zayzatz, earlier opted to separate from the service in lieu of court-martial, a decision that may do her lifelong career and reputational damage. She was charged with dereliction of duty and reckless endangerment.

Mark Rosenow. US Air Force Academy Association photo

Mark Rosenow. US Air Force Academy Association photo

What happens after this is not clear, but we can make some suppositions. Foley has been resoundingly cleared, but just the fact of a court-martial is very damaging to an officer’s career, especially in a climate of retrenchment and drawdowns. Where does he go to get his reputation back? Rosenow, for his part, is so well-connected, with so many AFA grad family members larded through the Air Force, that he’s probably completely unscathed by the failure of his overreach here. (We don’t blame the Academy. Heck, we knew at least two Air Force Academy grads in Army SF, both good officers. They probably ticked off the Rosenow in their year group to have to change services).

What this means to the future of personnel airdrops is another question. The Air Mobility Command, already buried in bureaucracy, is likely to get even more legalistic and bureaucratic. Aircrews are going to be much less willing to work with Army and other ground units for airdrop missions, and the buzz in the Air Force is that pilots, especially C-17 pilots, are looking for ways to avoid airdrop qualification or let it lapse.

But before we close — let us never forget Francis T. Campion, III.  He was an intelligent, enthusiastic outdoor athlete who volunteered over and over and cleared every hurdle in the long steeplechase that is Special Forces qualification. He was a combat veteran of Afghanistan. Whatever else ensues, he’s still dead at a too-young 31, and nothing can change that. It would be nice if JAGs stopped trying to frame operational guys, but we all know that’s not going to happen. It would be nice if the Air Force began putting some trust in their crew dogs, but a service marbled through with Rosenows, that’s not going to happen either. Perhaps the Air Force can rewrite its regulations so that they’re clearer, and so that they’re interpreted sensibly, not with a Rosenow’s timid risk-averse approach. But what we can do is remember Campion.

And, folks: what we do is dangerous. We do it as safely as we can, but we can’t prepare Green Beret wearers for combat operations without taking risks. Let’s remember Francis Campion who risked all on a roll of the dice that came up snake eyes. Tonight he dines in Valhalla with the legends of the ages. It could have been any of us, brother.

Other Olympian coverage of the trial’s last day:

8 thoughts on “Not Guilty!

  1. GBS

    Glad to see some vindication here. The fact that his CO supported him and that the SF people didn’t blame him should have been enough to put the brakes on a court-martial. I’m a bit surprised that a JAG would have such apparent control over a case. In the Navy, the COC, and especially the unit commanding officer, typically has a great deal of input on whether charges will be preferred and how they will be adjudicated.

    1. Hognose Post author

      Army too. Word is that high levels of AMC wanted to send a message about complying with the exact letter of regulations. No SOP or common sense deviations. They picked the destruction of Foley as their way to do it. The end result is probably still Capt. Foley pased over for Major, and Rosenow on the rocket to rank and influence. We need to keep an eye on that weasel.
      Foley can probably go to the ANG (“What career?”) and advance normally, because no one over there gives a rat’s about MAJCOM politics. And he can probably land an airline gig even in this economy — all the Vietnam era guys who bought a few more years to pay their ex-wives with the Age 65 decision are now up against 65 and have to retire, and the lines have to fill those seats, and Congress’s dumb-ass 1500 hour ATP rule means less experienced candidates won’t be advancing to the majors as they were (typical Congressional screwup — the accident that motivated the new rule was caused by a bozo who would be good to go under the new rule).

  2. Justin

    These JAG attorneys don’t care who they are wrongfully prosecuting. Regardless of the circumstances, they get paid to win cases for the government. Captain Mark Rosenow is a great JAG attorney. He was my defense attorney and won my case against the government. I’m glad to see Captain Foley won his case against the government.

    1. Hognose Post author

      I understand your appreciation for Captain Rosenow — he saved your ass. But I don’t buy the argument that their advocacy exists in a space outside morality. (This is not just true of JAGs but of lawyers in general. If I have one more of these creeps telling me about how John Adams defended the officer commanding the Boston Massacre as if I slept through 7th Grade history, as if that excuses him concealing or faking evidence, I’ll scream).

      The command (presumably AMC) and CMCO are primarily responsible for this, but the lawyers involved are not going to hide behind “just following orders.” There’s enough tar and feathers for all of them. Don’t forget the outcome was an innocent man, Capt. Foley, had his Air Force career destroyed, and his copilot (whose name escapes me) not only had her AF career destroyed, but because she pled guilty (which is essentially what resignation-in-lieu-of amounts to) she is now a convicted felon with bleak prospects for any employment. She has the equivalent of an enlisted service member’s bad conduct or dishonorable discharge on her record, and she did nothing wrong.

      Rosenow took part in this, with enthusiasm.

  3. Princess

    You clearly have no idea what you are talking about. In the military we have do our job, and sometimes that means doing something that we don’t necessarily believe in. You obviously overlooked that. I personally know Mark, he was a damn good defense counsel and is unfortunately also a good prosecutor. If you want to get upset with someone while don’t you do your research and figure out who the previous 18AF/CC was that took the authority away from Foley’s squadron CC, Group CC, and wing CC, and had his vice wing CC prefer charges.

    This forum is absurd and you have zero credibility with anyone who has a clue about the law of the facts surrounding this case.

    1. Hognose Post author

      In the military we do have to do our jobs, but we also are individual moral agents, so sometimes you have to tell a commander “I can’t do that, sir.” Or take the criticism that comes from putting your undeniable talent on line in service of a corrupt frame job. This is doubly true if, as you suggest, a convening authority abused his command authority in this case (an unfortunately common occurrence).

      A principled attorney would have resigned rather than do what Mark Rosenow did in this case, although I’ll grant that principled attorney sightings are rare and disputed things.

      We’re not lawyers here, we’re shooters and leaders of shooters. And the military has about 95% too many lawyers, who are mostly immune to acculturation to military values, and who have been sand in the gears of the war machine for the last decade plus. Even though a few of them are decent guys and gals.

  4. Army Commander

    To Hognose,

    I’ll echo the comments of Princess who says “You clearly have no idea what you are talking about”. Scholars of journalism will be quick to tell you that two of the greatest tenets of journalism are objectivity and professionalism. The fact that this blog is to obviously a witch hunt for the JAG in question is proof that this is not a serious forum. Furthermore, the fact that you refuse to accept any criticisms in the comments section is further proof that is not a serious forum.

    As an Army leader myself, I can tell you that whether it is the Army or the Air Force, we are all increasingly burdened by bureaucracy. For this case to even get to court martial, a lot of hurdles had to be cleared. There were most certainly leaders at multiple levels in Capt Foley’s own CoC who were ensuring those leaders got hurdled successfully. If you think this is all the result of enthusiastic lawyer, you clearly misunderstand who this whole military thing works.

    If anyone is guilty of overreach, it is the author of this blog who attempts to simplistically pin the whole thing on a prosecutor. I suggest you write more balanced pieces in the future. I also suggest you take criticism on the chin. Without those two adjustments, you’ll never be taken seriously.

    Respectfully,

    Army Commander

    1. Hognose Post author

      Your tone reminds me of the one commenter ever to get banned here, a conspiracy wacko, even though you’re not him. All comments are moderated, and apart from that one jerk, all go up when we get to them.

      I do agree that another villain of the piece may be the senior officer who insisted on this idiotic Court in the first place. Captain Foley’s chain of command resisted the court martial (and the convening authority found someone compliant instead, which is how it goes, and part of why F. Lee Bailey famously compared military justice to military music). His squadron and wing commanders testified for him, probably damaging their own careers.

      But Capt. Rosenow didn’t cover himself with glory, and any commander getting him on his special staff needs to know what kind of a snake he’s getting. Not that many commanders have any illusions about the Judge Advocate General’s Corps these days.

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