The Judge Advocate General and the General Counsel
Lawyers in the Navy Department
WHEN JAMES FORRESTAL became Under Secretary of the Navy in August 1940 he found no administrative staff awaiting him, as he was the first incumbent of the office. Forrestal had been in the investment banking business in New York as a partner in the firm of Dillon, Read and Company, a business in which no move is made without consulting the legal profession; so it was natural for him to look for an attorney to become the nucleus of his civilian staff. He found a top level lawyer for the position in Charles F. Detmar, Jr., a member of the law firm of Wright, Gordon, Zachrey and Parlin, counsel to Dillon, Read and Company. The first plan was for Detmar to work in Forrestal's office, a few months and then to be relieved by another member of his law firm, but this arrangement was found impracticable. Detmar remained a member of the Under Secretary's personnel staff practically throughout the war.
Forrestal felt the need for legal advice very soon when, on October 1 1940, the second Revenue Act of 1940 was passed.1 It contained a provision intended to encourage the investment of private capital in industrial facilities needed for war production. The encouragement consisted of permitting funds, so invested, to be amortized within five years instead of over the usual twenty year period. The act stipulated that the War and Navy Departments were to certify whether plants constructed for this alleged purpose were necessary for war production and that their owners would not receive special reimbursement from the government for the facilities through some other channel. The experience of the Under Secretary in setting up procedures for handling the tax amortization certificates required by the act, and in initiating a program of facilities expansion,
brought him into contact with various parts of the Navy Department's administrative machinery including its law department, the Office of the Judge Advocate General. It gave him also some insight into the problems of working with other government agencies.
For one thing, it led him, in December 1940, to bring two additional lawyers into his office as special assistants2 to handle this and other administrative work requiring knowledge of law. It is not necessary to describe at this point the procedures that were finally adopted for handling tax amortization certificates. The first fruit of the experience was that it impressed Forrestal with the fact that the Office of the Judge Advocate General was not then fully equipped to handle the heavy volume of matters involving commercial law. It led also to an intensive study by one of his legal staff (Mr. H. Struve Hensel) of the entire material procurement procedure in the Navy Department, including the preparation and signing of contracts. The upshot was the establishment, in July 1941, of the Procurement Legal Division in the Under Secretary's Office to bring to bear on the Navy Department's material procurement tasks the experience of lawyers trained in business and industry. The chapter on "Industrial Mobilization and Material Procurement" deals with the policies and practices that were adopted in the actual carrying out of the producer logistic functions of the Navy Department. In this chapter, the history of the Procurement Legal Division, designated in August 1944 as the Office of the General Counsel, will be briefly recorded. Before doing so, however, it will be helpful to an understanding of the subject to outline first the history of the Judge Advocate General's office, as the latter had for many years handled most of the commercial and business legal work of the Navy Department.
The Judge Advocate General
Prior to the Civil War, the Secretary of the Navy had no assistants trained in law. Faulty interpretations of laws sometimes caused naval officers, acting upon orders from the Secretary of the Navy, to become involved in damage suits. The great expansion in Navy Department procurement during the Civil War accentuated this staff deficiency. In 1864, following the discovery of fraud in connection with certain naval contracts, Secretary of the Navy Gideon Welles, apparently on his own initiative, appointed a solicitor for the Navy Department.
In February 1865, he requested Congress to create the "Office of Solicitor and Naval Judge Advocate General" and recommended that the officer be selected by the President and confirmed by the Senate. The Act of March 2, 18653 authorized the President "to appoint by and with the advice and consent of the Senate for service during the rebellion and one year thereafter an officer in the Navy Department to be called the "Solicitor and Naval Judge Advocate General." The Act of June 22, 18704 established the Department of Justice and transferred the Solicitor and Naval Judge Advocate to that department with the provision that thereafter he be known as the Naval Solicitor. The office was however abolished in the Appropriation Act of June 19, 1878, whereupon the Secretary of the Navy detailed Captain William B. Remey, USMC, as acting Judge Advocate and charged him with the duty of reporting upon all matters arising in the Navy Department involving questions of law and regulations.
An Act of Congress dated June 8, 18805 reestablished the Office of Judge Advocate General and went on to say "... And the office of the said Judge Advocate General shall be in the Navy Department, where he shall, under the direction of the Secretary of the Navy, receive, revise, and have recorded the proceedings of all courts-martial, courts of inquiry, and boards for the examination of officers for retirement and promotion in the naval service, and perform such other duties as have heretofore been performed by the Solicitor and Naval Judge Advocate General." Colonel Remey was appointed to the office and held it until 4 June 1892.
The act was clear enough as to the duties of the JAG with respect to military law, but the last clause stating that he was to "perform such other duties as have heretofore been performed by the Solicitor and the Naval Judge Advocate General" was ambiguous in that it required a constant referral back to what duties had been performed by the Solicitor and, more particularly, what authority and responsibility the JAG had over non-military legal matters. It was clear that the Secretary had authority to assign any kind of legal work to the JAG but it was a question as to what kind of legal work could be assigned to offices in the Navy Department other than the Judge Advocate General. It was held by the JAG that the report of the House Naval Affairs Committee accompanying H.R. 2788, establishing the Office of the Judge Advocate General, declared it to be the intent of Congress to have legal matters of every nature and kind within the Navy Department handled by the Judge Advocate General. Also, it seemed clear that while the term "Judge Advocate General" conveyed the idea of an officer concerned with purely
military of naval matters, the term "Solicitor" when used to describe a legal officer of the Government, conveyed the idea of the chief law officer of a department, with no limitation as to scope and the kind of law he might be called upon to handle.
Subsequently, from time to time, the duties of the Judge Advocate General were set forth in detail in General Orders and in Navy Regulations, including those lying in the field of commercial law. The latter work was handled in sub-divisions of the office distinct from those dealing with military law.
In the Naval Appropriations Act for the Fiscal Year 19016 for the first time, appropriated specifically, "... for a Solicitor, to be an assistant to the Judge Advocate General of the Navy." The salary was set at $2,500. This was a higher salary than had theretofore been paid to any civilian lawyer in the JAG's office and made the position more attractive to experienced civilian lawyers than it had been before. This was the period right after the Spanish-American War when the Naval Establishment was expanding rapidly, both afloat and ashore, and posed many new legal problems for the Secretary of the Navy. A specific item for the salary of the Solicitor appeared in the Appropriation Acts from year to year and described him as an assistant to the Judge Advocate General.
On November 1, 1907, Secretary of the Navy Victor H. Metcalf set up the Solicitor as a separate office and assigned to him most of the work in the field of commercial law that had been handled by the JAG's office. In the Naval Appropriation Act for the Fiscal Year 1909,7 Congress made separate appropriations for the offices of the Solicitor and the Judge Advocate General, and omitted the language making the Solicitor an assistant to the JAG. The reasons underlying this change are not clear but, subsequently, the duties of the Solicitor were laid down in some detail in the 1909 Navy Regulations and covered most of the commercial las previously handled by the JAG's office. Some additions were made to the Solicitor's duties before World War I; for example, the muniments of title to land acquired for naval use were transferred to him from the Bureau of Yards and Docks, in May 1913.
During World War I various steps were taken toward reorganizing and consolidating Federal Government activities. One of these, by Executive Order of the President, gave the Department of Justice supervision and control over all law offices attached to any executive bureau, agency, or office specially created for the prosecution of the war. The Order stipulated, however that it was not to affect the jurisdiction of the Judge Advocate General of the Navy. It and the proclamation
terminating World War I seemed to have had the effect of doing away with the sharp separation between the Judge Advocate General and the Solicitor, with the result that Article 393-3 of the 1920 Navy Regulations provided:
"The Judge Advocate General of the Navy shall, in accordance with the statutes creating his office, have cognizance of all matters of law arising in the Navy Department and shall perform such other duties relating thereto as may be assigned him by the Secretary of the Navy."
Beginning with the Naval Appropriation Act for the Fiscal Year 1924,8 the salary of the Solicitor was included under the head, "For Officers and Employees in the Office of the Judge Advocate General." The Office of the Solicitor as a separate entity of the legal machinery of the Navy Department then came to an end.
When James Forrestal became Under Secretary of the Navy in 1940, the organization and distribution of the work in the Judge Advocate General's office was broadly, the following: in addition to an administrative group consisting of the Judge Advocate General himself and a number of assistants, there were four divisions. Division 1 handled all matters involving military law and justice, courts-martial, boards of investigation, boards for the appointment, promotion, and retirement of officers, officers' records, and similar matters. Division 2 studied and made recommendations on proposed congressional legislation, changes in and drafts of new Navy regulations, and General Orders, rulings on pay and allowances, admiralty claims, and other matters of this kind falling broadly under the heading of military law. These two divisions plus the administrative group,represented about seventy percent of the personnel of the office. Division 1 handled contracts, both ship and public works, acquisition, valuation and disposal of real estate, bonding of certain officers, and all manner of work involving knowledge of commercial law. Division 4 handled matters pertaining to patents, suits, and research into the scope and validity of patents. These two divisions covered, on general, matters of commercial and business law and took care of about thirty percent of the legal work handled by the office.9In all divisions, both officer and civilian lawyers were employed, but the civilian lawyers predominated in Divisions 3 and 4. On 1 June 1940, the legal staff of the JAG's office consisted of 14 officers, 22 civilian attorneys, and 8 officers under postgraduate instruction in law.10
The usual policy of rotation was followed in the assignment of officers
Rear Admiral Walter B. Woodson
Judge Advocate General, June 1938-Aug. 1943.
to this duty. The assignment were made from officers who had had an education in law. Every year a small number of promising young naval officers of the line and of the Marine Corps, were at their own request, assigned to duty in the JAG's office for postgraduate study in law pursued usually in a law school in Washington. After receiving a law degree, such officers alternated between sea duty and duty in the JAG's office, or legal duties elsewhere. But the Judge Advocate General himself was not necessarily chosen from among such specially trained officers. It so happened, however, that the officer, Rear Admiral Walter B. Woodson, USN,11 who
filled the position of Judge Advocate General of the Navy during the early part of World War II, was a law graduate, one of the few with an education in law who had held the position up to that time.
The civilian lawyers in the JAG's office were recruited largely from men who had entered the government service in Washington at an early age, had studied law in the night classes of one of the several excellent law schools in Washington and had qualified for Civil Service appointment as lawyers in the various departments of the government. Before World War II, congressional limitations on salaries made it difficult to pay any civilian attorney in the JAG's office more than $5,000 a year. The Navy Department could not, therefore, offer a financially attractive career to its civilian lawyers not to its commissioned officer lawyers comparable to that in private life. The system of recruitment, education, training, and association did, however, produce a very high type of lawyer, both civilian and in uniform, from the point of view of integrity and dedication to the public interest. Many of these men furthermore developed legal acumen equal to that of the keenest minds in private practice.
The atmosphere of the Judge Advocate General's office led naturally to conservatism in the approach to new problems and to standardization and channelization of its routine work. The custom had also grown up of encouraging discussions of legal matters on a formal basis only. A written request and a complete statement of the matter at issue was required. Sitting down with a member of the staff of the JAG's office. This practice had merit in time of peace and, in the long rung, was in the public interest, but in time of emergency the possible delays resulting therefrom could slow down matériel procurement.
The formal procedures followed by the office of JAG and the thoroughness with which members of that office researched legal problems stood the Navy in good stead when the national emergency arose in September 1939. For example, over the years the JAG's office, in collaboration with the technical Bureaus, had worked out some very sound contractual procedures which speeded up the preliminary steps in matériel procurement and which at the same time safeguarded the public interests. One of these was the Letter of Intent which made it possible for a prospective contractor, before he had a formal contract, to get underway on work which had been mutually agreed upon between him and the contracting Bureau. This was actually the beginning of what was later streamlined and intensified into making most contracts by negotiation instead of on the basis of competitive bids.
It is appropriate in this connection to glance at the record of the Navy Department in getting underway on the huge shipbuilding programs
authorized by Congress in June and July 1940. Just prior to the approval on 11 June 1940 of the Naval Appropriation Act for the fiscal year ending 30 June 1941,12 which included the 11% naval expansion program, bids had been obtained on the ships to be built in private yards and on the machinery for some of the vessels. As a result, the Navy Department was able to award fourteen contracts on 12 June 1940, the day after the act was passed.
These were not haphazard contracts in which the Navy Department conceded everything to the contractors in the interests of getting the program underway, but sound contractual arrangements in which the Government's interests were well protected in fact, so well protected that later many requirements had to be modified as they bore too heavily on the contractor because of the shortages in labor and material that developed as the war progressed. The contracts were based, of course, on well thought out plans and specifications prepared by the technical Bureaus.
Early in 1940, during the Secretaryship of Charles Edison, the JAG's office, in collaboration with the technical Bureaus, drafted legislation to authorize the Secretary of the Navy to negotiate contracts for the acquisition, construction, repair, or alterations of complete naval vessels or aircraft, or any portion thereof, with or without advertising or competitive bidding upon determination that the price was fair and reasonable. In the meantime the bill sponsored by the Navy Department to authorize a seventy-percent increase in the Navy, known as the Two-Ocean Navy Bill, was under consideration by Congress. The Bureau of Construction and Repair, and after merger with the Bureau of Engineering, the Bureau of Ships, was, during this time, conducting negotiations with shipbuilders in collaboration with the JAG's office, looking toward placing the orders for the new construction immediately upon the enactment of the legislation.
The Negotiated Contracts Bill became law on 28 June 194013 and the President, on 28 June 1940, authorized the Secretary of the Navy to enter into contracts made in that way. During the period that the Negotiated Contracts Bill was being drafted and was under consideration by Congress, negotiations were actually under way between shipbuilders and the Navy Department, making it possible to place contracts on 20 July 1940 for some fifty vessels, the very day that funds for the Two-Ocean Navy became available. The existing negotiating and legal machinery of the bureaus and of the JAG's office made this possible. By any standard, it was ian outstanding achievement as to promptness and effectiveness in getting this crucial program underway.
The contracts involved an obligation of about $600 million, exclusive of facilities. It was realized, however, that these contracts were only the beginning of the huge procurement programs that would have to be undertaken should the United States be drawn into the war, and that the legal work involved would require a substantial increase in the number of lawyers employed in the Navy Department. The Secretary and the Under Secretary of the Navy, newly appointed in the summer of 1940, were particularly impressed by this need. The Judge Advocate General was also well aware of this need and believed that it could be met by strengthening the commercial legal staff of his office.
Procurement Legal Division
The lawyers who studied the Navy Department's legal machinery and contract making procedures were, however, of the opinion that merely increasing the civilian legal staff of the JAG's office would not be as effective as setting up a new division in the Under Secretary of the Navy's office for dealing with all legal matters involved in matériel procurement. They recommended to Forrestal that a civilian lawyer of substantial ability and commercial experience be placed at the head of the division with a special counsel and associates in the Bureaus of Ships, Ordnance, Aeronautics, and Supplies and Accounts. In this new division were to be centered all legal activities having to do with the preparation and examination of proposed contracts. They felt that the new office should be kept civilian in its personnel, and that there would be advantages in having it operate directly under the Under Secretary rather than through naval channels.
Attorneys from the new division, assigned to the respective bureaus, were not to be considered in any way as employees of those bureaus, but were to report to the head of the division in the Under Secretary's office. All contracts of any size were to be submitted to the counsel in the bureaus, while in process of negotiation. Insofar as possible, the attorneys in the bureaus were to be consulted and actually present during the negotiation of important contracts. In conclusion, it was recommended that the Certification Supervisory Unit, which had been the cause of the survey and had already been established in the Under Secretary's office, was to be incorporated in this new Division.
To further this project, Forrestal wrote the Director of the Budget on 23 May 1941, requesting that special authority be granted the Secretary in the then pending deficiency appropriation bill to appoint fifteen additional attorneys in the Navy Department at salaries in excess of $5,000 a year to staff the new office. When the request came before the House Naval Affairs Committee, considerable opposition developed to the proposition of
a legal division in the Under Secretary's office on the grounds that the JAG's office had been established to handle all Navy Department legal work. However, an item was finally included in the bill allowing one special attorney in the Under Secretary's office at a salary in excess of $5,000 a year. The bill in this form passed the House on 25 June 1941.
In the meantime, the Under Secretary had employed, on a per diem basis, a number of young civilian lawyers for work in his office and in the Bureaus. The Judge Advocate General thereupon wrote him a memorandum questioning the legality of the arrangement and giving as his opinion that such employment would be declared illegal by the Comptroller General. Eventually, however, the Comptroller General approved the employment of lawyers on a per diem basis.
The Judge Advocate General in July 1941 stated, in some detail, objections to the proposed Procurement Legal Division. With all of the arguments now before him and with those principally concerned having been given an opportunity to state their case, Forrestal, at a conference on 10 July 1941, announced that he would establish a division in his office to be called the Procurement Legal Division; that the Division would render all legal advice relative to the "negotiation, preparation, performance of all contracts for the procurement, production or transfer by the Navy Department of material and facilities (except real estate)"; that it would assign a competent attorney, with assistants if necessary, to each bureau; that such personnel would not be employees of the bureaus, but would continue to be part of the working force of the PLD in the Under Secretary's office; that contracts prepared by the Procurement Legal Division of a kind theretofore sent to the Judge Advocate General for examination would continue to go to that office and that any questions in dispute would be discussed between the head of the Procurement Legal Division and the Judge Advocate General.
A word is necessary concerning the apparent inconsistency in omitting the handling of real estate legal work from the functions of the Procurement Legal Division. The cognizance over such work had, in the past, been shifted back and forth a number of times between the JAG's office and the Bureau of Yards and Docks. When the war emergency arose it was under Judge Advocate General, but so large in additional load had been thrown on the office resulting from the acquisition of new bases and airfields, and the expansion of existing shore establishments, that the division was badly understaffed. To relieve the situation, on the recommendation of the Secretary of the Navy, Executive Order No. 9194 of 7 July 1942 transferred all such functions to the Bureau of Yards and Docks.14
The Procurement Legal Division was formally established in a directive of 10 September 1941, with H. Struve Hensel as the Chief of the Division. He filled the position of the lawyer authorized in the Naval Deficiency Bill passed on 25 June 1941 mentioned above. Most of the other members of the legal staff were employed on a per diem basis. The Under Secretary's directive outlined, in some detail, the procedures under which the office would operate. In the case of the technical Bureaus, for example, a request for authority to negotiate a contract was to be submitted to the PLD branch in the Bureau; if there was none, then to the central office of the Division. Requesting clearance for negotiation was a device to give the PLD an opportunity to take part in the negotiations while the contract was still in the formative stage. Thus, when contracts reached the Under Secretary for signature he would have assurance that his own staff of lawyers had given the contract the green light.
Procurement Legal Division branch offices were set up eventually in all of the bureaus, but not until the middle of 1942 in the Bureaus of Naval Personnel and Yards & Docks. This method of increasing the legal machinery of the Navy Department was received with varying degrees of enthusiasm by the bureaus. Broadly speaking, the opportunity to get legal talent to help them in their work was welcomed especially by the technical bureaus, but none of the bureaus relished taking into their organizations men who did not report to the Chief of the Bureau, but only to the Under Secretary of the Navy.
When the negotiated contract procedure was legalized in June 1940 and the way was also opened for the employment of civilian commercial lawyers in the bureaus, either on a per diem basis or as Naval Reserve officers, most of the bureaus set up legal divisions of their own. Thus, when the Procurement Legal Division began functioning in the fall of 1941, it collided is one instances with the legal personnel employed by the bureaus, but the relations between the two groups were, in general, harmonious.
As always happens when two groups of honest, intelligent individuals, but with different backgrounds of experience and training, are thrown together to f a team working toward the same end, each has much to learn from the other. This was certainly true of the professionals in the Navy Department, both civilians and in uniform, and of the lawyers and businessmen who came in fresh from civilian life to serve the government. A step in this educational process is revealed buy Forrestal's directive of December 1942 which made certain changes in the procurement procedures of the Navy Department and laid down certain rules regarding legal advice and services. He directed that "in order that all legal advice and services relating to procurement may be coordinated in each bureau and
in the Navy Department there shall be a single legal division in each bureau to render such advice and perform such services," these legal services top be coordinated and generally supervised on behalf of the Secretary by the Chief of the Procurement Legal Division.
Office of the General Counsel
The name of the Procurement Legal Division was changed to the Office of the General Counsel on 3 August 1944. The Office came to be recognized as the business and commercial law office of the Navy Department as distinguished from the Office of the Judge Advocate General, which continued to handle all other legal matters of the Navy Department including military law, admiralty cases, and damage claims of naval personnel. The policies and relationships of the OGC, with other branches of the Navy Department, adjusted themselves gradually to procedures and relationships that became workable and acceptable to the bureaus and other offices of the Navy Department needing the services of commercial lawyers.
The philosophy underlying these relationships was visualized as having its analogue in the relations between a large law firm in a big city and its commercial clients. The business of the OGC was to be conducted in an atmosphere of informality with client and lawyer jointly exploring the problem being faced, as is the custom in private enterprises. The clients in the case of the Navy Department were the Secretary of the Navy, his principal civilian assistants, the Executive Office of the Secretary, the Chiefs of the Bureaus, the Commandant of the Marine Corps, in fact, all Navy Department executives and contracting officers. The policy required keeping the individual lawyer assigned to a problem as its manager throughout its life, with full responsibility for handling the project. The individual lawyer was nevertheless free to call on the more experienced member of OGC for advice and guidance, thus insuring the advantages of teamwork. Echelons of review were, however, to be kept to a minimum.
From the bureau point of view, the fact that the lawyers supplied by OGC were not a part of the bureaus' personnel and did not report to the Chief of the Bureau was a shortcoming of the system. While in private legal practice the members of a law firm are also not on the payroll of the client, there is the difference that the client can get rid of a law firm whose services are not satisfactory; whereas, the Navy Department client has no such recourse in order to correct a similar situation.
From the 22 civilian attorneys employed in the JAG's office in June 1940, many of whom were doing commercial law work, the Office of General Counsel doing similar work expanded to a staff of 160 lawyers in 1944.
Table of Contents
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1. 54 Stat. 974.
2. H. Struve Hensel, a partner in the New York law firm of Milbank, Tweed and Hope, and W. John Kenney of Los Angeles, California, who was recommended to Forrestal by Mr. Justice Douglas with whom Kenney had worked on the Securities and Exchange Commission. Kenney remained until after the end of the war and eventually became the Under Secretary of the Navy. Hensel with one brief interruption remained until March 1946. He moved up to Assistant Secretary of the Navy and served as such from 30 January to 28 February 1946.
3. 13 Stat. 468.
4. 16 Stat. 162.
5. 21 Stat. 164.
6. 31 Stat. 86, 117.
7. 35 Stat. 184, 218-219.
8. 42 Stat. 1132, 1135.
9. National Archives--Navy Department file EN/A3-2(330707), "Proposed Establishment of Stenographic Pools in Offices of the Navy Department," the figures are approximate and fluctuated from time to time.
10. Annual Report of JAG to Secretary of the Navy for the Fiscal Year 1940.
11. Rear Admiral Walter B. Woodson, USN, was Judge Advocate General of the Navy from 20 June 1038 to 1 September 1943.
12. Public Law No. 588, 76th Congress, 3rd Session.
13. Public Law No. 671, 76th Congress, 3rd Session.