Military Department General Counsel a8 'Chief Legal Officers': Impact an Delivery of Impartial Legal Advice at Headquarthe Field

• Author: Lieutenant Commander Kurt A. Johnson
• Pages: 01

1. Introduction

Order is Heaven's fmt 10u; and this confest, Some ore

and must be greater than the rest.

--Alexander Pope

The early 1990s have witnessed an unprecedented effort by forces within the United States Department of Defense (DOD)to

designate the civilian general counsel of the military departmente1 as the "chief legal officers" of their respective departments. Each military department's legal services are performed by a combination of military and civilian attorneys. These

'Judge Advocate CeneraPs Carps. Umted States Naiy B A , universlty

Wlaeonbm, 1979: J D cum laude, Urnversify of Wlseonlln 1986 LL hl candidate, Wmverilfy of Vlrmnla, 1993 Formerly aamgned as Piag kde t o the Judge Advocate General of the Navy Pentagon. 1990-1991 Officer m Charge, Kava1 Legal Sirwee Off~ce Detachment, Part Husneme CshfOarma 1989.1990 star

Judge Advocate, Psval k r Staf~on XVh17bey Island, Oak Hdrbor Wa%h;ngton 1987.1YdY: Naval Legal Sernee Otfrce. Guam, 1986-1987 This &le 18 baaed upon a written dissertation that the author hvbmitted to satmfy, m part, tho Maater of Lars degree requ~rementa of the Graduate Progrsm Un~veralty of V~rglms School of Law The author wishes ta thank. among many.'Profeasor John Norton Maore, Walter L Brown Profesmr of Law and D~rector of the Graduate Program at the Lmversity af Virginia Sehool af Law, far hla helpful eommenta ODan esrlm draft af thu srtlcle

'Military depammentd are the Department of the Army, the Depsrtmenl of the k r Force, and the Department af the Naiy which includes the Navy and Marine Carpa

separate organizations are headed, respectively, by the federal statutorily-designated judge advocate generals and the federal statutorily-designated general counsel. As compared with the military judge advocates generals, the civilian general counsel are of relatively recent onon. They are primanly a phenomenon of post-World War I1 DOD reorganization. As might he expected of any large bureaucracy, the general counsel and judge advocate general organizations historically have tended to expand and compete with each ather far military department legal business. Until recently, however, a general understanding of the dwismn of labor existed between the two organizations This division af labor has been based on federal statute, DOD and military department regulation, areas of expertise, historic practice, and custom Accordingly, the two organizations generally have operated as co-equals in thex military departments-each organization predominating in its respective area of expertise and practice.

A. Background

Times have changed radically. The event that led to the current state of affairs was the inclusion of a legislative provision in the proposed 1992.93 DOD Authorization Act, sponsored by DOD and submitsed to Congress by the administration of President George Bush. This provision would have designated the general counsel of the military department8 the "chief legal officers" of their respective departments, and allowed the secretaries of the military departments to assign executive authority to thew general counsel The proposed legmlation was scrutinized closely in C~ngress;~it also touched off a highly contested debate in DOD legal communities, which continuer today.

The debate was rekmdled an March 3, 1992, when the Deputy Secretary of Defense signed a memorandum applicable to all of the mditary departments that not only designated the general counsel of the military departments the "chief legal officers" of their respective departments, but also went far beyond the proposed legislation noted above. Specifically, it placed the general counsel in a hierarchical position superior to the judge advocate generals 3

*The Senate Armed Semcis Committee (SASCI and the Hovse Armed Senma Commlltee IHASC) me the two cangremonsl commdteea hsnng primpal overeight responshhty and authority over Department of Defenbe atfans

9The other maor pmumons ofthe memorandum Included the follaiving (1) Making the general COY~B~Isuhjert to the svthonties of both thr ~ecretsneb of

19931 MILITARY DEPT GENERAL COUNSEL 3

Congress weighed in on the March 3, 1992 memorandum dunng the summer of 1992, primarily through a series of pointed questions to Mr. David Addingon during his Senate confirmation heanngs as the nominee for DOD General Counsel. The Senate Armed Services Committee (SASC)--coneerned primarily with the potential impact on the "clients" of DOD lawyers-focused in on two key areas' assignment of executive authority to the military department general counael, and diminished authority of the secretaries of the military departments. Mr. Addington's answers to the questions satisfied the SASC, and the SASC exacted a promise from Mr. Addingon to seek revision of the March 3, 1992 memorandum.

In response to the Addingon confirmation hearings, the Deputy Secretary of Defense issued a new memorandum on August 14, 1992, which superseded the March 3, 1992 mernorandum. This new, shorter memorandum contained two primary promsions: the general counsel of the military departments would be the "chief legal officers" of their respective departments, and their legal opinions would be controlling within their respective departments. As of this writing, and for the foreseeable future, the August 14, 1992 memorandum appears to be the "law" within the Department of Defense.

B Goals

This article assume8 that the DOD legal communities and the congressional committees tasked with overseeing DOD share the goal of effectuating the delivery of sound and impartial legal advice to decision-makers in the Office of the Secretary of Defense (OSD), decisionmakers in the military departments, and military operational commanders. In other words, the common interest of these decision-makers' presumably IB to create and maintain a structure for providing legal services in the DOD that maximizes its contributions-and minimizes its hindrances-to achieving the

the mihtary depsrtmmts and the General Cavnrel of the Department of Defense,(21 Mahng the general covnsel responsible for the vnlfarm Interpretatwn and application of law8 and delivery of legal sermees with" then reepectwe departments, (31 Subptmg all e m l m and m~lltary permnnel perfomung legal duties within the military depadmsnts to the "authority" of the general eouniel of their respective military department, 141 Chargmg the ~eneral COY~SOI wnh

ensunng that all cinhan and military personnel performmg legal dutm wthm

their reepectlve military departments comply wth statutory, regllatory. and ethical stsndarda. and (51 Making the ~piomnn of the general cumssl the "cantrollins leeal O D L ~ I O ~ S ' ' of their resoecbve denartmenta

_ _ . . .

'These decalon-makers are the Secretary of Defmse. the ~ecrelaneb of the military departments, the Department of Defense General Counsel, the gsneral counsel of the military departments. tho judge advocate generals. and the Senate and Hause Armed Semicea Committees

military mission. Accordingly, this article will not dwell upon, norspeculate about, the personal political controver~ies that often appear to obscure the normative objectives of government Rather, it will concentrate on attaimng the best possible framework far providing legal advice as a functional adjunct to the nation's military organization.

This general goal has many component parts, or "subgoals," which this article will explore and discuss. These subgoals include the fallowing.

Preaerve an independent military perspective in DOD decision-making.e Locate legal expertise, authority, and accountability as close as possible to military operational commanders in the field.

e Encourage diverse points of view in delivery of legal advice to DOD decision.makers

Clarify who is the client of a DOD lawyer

0 Avoid conflicts of interest for DOD lawyers.

0 Maximize strengths of DOD lawyers, and capitalize on thew respective areas of expertise and training

Encourage teamwork and foster synergy among DOD civilian and military lawyers

0 Assign military and eidian lawyer roles in harmony with separate and distinct operational and administrative chains of command.

Maximize the authority and dimretion of mihtary department secretaries xlthin the bounds of the law

Structure DOD-wide legal services to best erve the military mission of fighting and winning wars

Structure the pravmon of legal ~ ~ T Y I C ~ S

wthm

each military department to serve Its secretary most efimently and effectively, and to serve the unique mission of each military department Concomitantly, avoid artificial simLmties among the military departments and the Department of Defense

0 Remove unnecessary layers of bureaucracy between providers and recipients of legal advice in DOD.

0 Clearly define when and how a legal opinion becomes "final."

0 Insulate legal advlce within the DOD from

0 Insulate the rnilitaly justice system from the political process.

e Preserve and enhance the concept of accountability in the military.

This article first wll explore the evolution of the relationship between the general counsel and the judge advocate general of each ~erviee and will examine in detail the unprecedented effort8 of the early 1990s to functionally elevate the authorities of the general counsel Based an this background, the article m11 explore whether Department of Defense legal services-and, in particular, the "chief legal officer" aspects--eurrently are structured in the best possible way to achieve the general goal, as well as its many component parts.

unlawful command influence and political agendas.

3. Scape

This article focuses heavily on the structure of legal services within the United States Navy.5 Although differences exist among the legal structures of the Army, Navy, Air Force, and ManneCorps,e the issues bearing on the chief legal officer controversy in each service always are similar, and usually are identical. Accordingly, the analyses, conclusions, and proposed remedies...