The Thirty-Seventh Kenneth J. Hodson Lecture on Criminal Law

Author:Daniel J. Dell'Orto



Thank you, Colonel Brookhart, for that introduction and for allowing me to join you today for this lecture. I, too, would like to recognize

many distinguished guests in this audience but also friends in this audience, people I've served with over the years, both on active duty and since I retired from active duty to become a civilian employee of the Department of Defense.

. . . .

Major General Hodson participated in the ROTC Program and was commissioned initially as a coastal artillery officer during World War II, or shortly before World War II. He was called to active duty in May of 1941, and he served as a Judge Advocate in the European Theater in World War II; and as you've heard, he was The Judge Advocate General of the Army from 1967 to 1971, and he served as the first Chief Judge of what was then called the Army Court of Military Review, more recently the Army Court of Criminal Appeals. He was not only someone who had an outstanding career as a Judge Advocate, he was one of the principal architects of the United States military justice system and his leadership molded the United States Army Judge Advocate General's Corps into the institution it is today through some very critical and momentous years in the '50s and '60s. It is an honor to present this lecture because I, like some of you, attended the Hodson Lecture while a student in the Grad Course, in particular as a member of the 31st Graduate Course, more infamously known as "the wurst of the 31st," that's w-u-r-s-t, because the year that we graduated a significant bulk of us went on to Europe, ergo "the wurst."

Now most often the person who presents this lecture is a distinguished professor or jurist. In honor of General Hodson's contributions in the field of military justice, that person will present an academic argument on an interesting, developing criminal law topic, but one should not infer from such a presentation that Major General Hodson's accomplishments were limited to jurisprudence. Rather it is important to acknowledge how he shaped the role Judge Advocates play in the Armed Forces. For example, when Major General Nardotti gave this lecture in 1995, which I believe was the year of General Hodson's death, he told the story about General Hodson serving as a major in the 52d Medium Port Facility in New York City for a few months before deploying to the European Theatre in World War II. As General Nardotti indicated, at the 52d Medium Port, however, not all aspects of the operation were running smoothly. When the command examined the situation, they discovered that they did not have a standing operating procedure, an SOP. General Hodson, at this time a major, decided to do something about the problem and he wrote an SOP, which was contrary to the contemporary thinking that people in the JAG Corps should not be involved in fixing a problem unless it was 100% legal. He saw it differently. There was a need and a Judge Advocate had the ability to solve the problem. It did not matter that it was a nonlegal problem. This is an interesting philosophy that reinforces what we as a Corps have said over the years, as General Nardotti concluded.

It is evident that General Hodson stuck to this philosophy throughout his career. If you read General Nardotti's account of General Hodson's career, you can see it when General Hodson worked with Congress on the Military Justice Act of 1968 and when he advised the Secretary of the Army on the My Lai Massacre. General Hodson's leadership and advice shaped the role Judge Advocates now play in the Army, and it is indeed in honor of those contributions that I offer these remarks today.

Today, I'd like to offer a few reflections on my experience and some thoughts on the duties of the government lawyer advising policymakers. I've just completed a thirty-seven-plus year career in government, with thirty years as a government lawyer in the Executive Branch. For the past nine, I've served as the Principal Deputy General Counsel of the Department of Defense with two stints as the Acting General Counsel, totaling almost one and a half years. It is a little difficult to explain to a layperson what exactly the General Counsel of the Department of Defense is or what the General Counsel's deputies do. A layperson's experience with lawyers is usually limited to watching lawyers on television, and that's if they're lucky. Perry Mason, L.A. Law, Boston Legal, Law and Order, The Practice, Judge Judy-these shows feature prosecutors, defense counsel, generally civil litigators, and judges, and on occasion, Judge Advocates. Fortunately or unfortunately, they haven't yet made a show about DoD lawyers, both uniformed and civilian, advising policymakers except insofar as the E Ring had a character in my former role during its brief run, who happened to be a female, who was far more attractive than I. Now if they did, you could call it OGC, and that has a nice ring to it, and I think it sounds at least as interesting as CSI, but it is not obvious what OGC does. I can tell you when I went up to interview to be the military assistant in my last active duty assignment, I had virtually no idea what went on in that office. The office has not been around all that long in our nation's history. It's not generally a public place that people come and visit, and it's not dramatized on TV. I have often thought, however, particularly recently, that were it not for the classification level and sensitivity of what is accomplished each and every day by the attorneys in the Office of the DoD General Counsel, a filming of what occurs in that office on any given workday would be of extreme interest to any lawyer.

Now the role of the Office of General Counsel is to give advice, and it is somewhere in between advocating and judging and not dissimilar to what takes place in the Staff Judge Advocate's Office. On the one hand, there are situations in which the advisor advocates. In negotiations with other departments and agencies, in negotiations with counterparts from other countries, the DoD lawyer has to muster the best arguments supporting the department's and the administration's policies and ensure that the interests of the department and the millions who serve in it are represented. As one British diplomat put it, describing his efforts during World War I, the Navy acted and the Foreign Office had to find the argument to support the action. It was anxious work. On the other hand, there are situations where the advisor judges, like an umpire calling balls and strikes. Policymakers circulate potential policies for clearance and coordination. When a potential course of action would contravene a law, it is the job of the lawyer to nonconcur, or as they say in another variant of bureaucratese, pose a legal objection. Department of Defense lawyers practice on the spectrum in between these models, and most cases, I believe, do not fit neatly in one mold or the other. A good counselor is neither Mr. Yes nor Dr. No; in fact, to...

To continue reading