SENATE ARMED SERVICES COMMITTEE
MR JEH CHARLES JOHNSON
More than a decade has passed since the enactment of the Goldwater-Nichols Department of Defense Reorganization Act of 1986 and the Special Operations reforms.
Do you support full implementation of these defense reforms?
Answer: I fully support the reforms and will work to implement them effectively and to ensure compliance with the legal requirements of the statutes.
What is your view of the extent to which these defense reforms have been implemented?
Answer: I am not aware of any specific reforms that have not been implemented. If confirmed, I will assist in the continued full implementation of these reforms.
What do you consider to be the most important aspects of these defense reforms?
Answer: The legislation provided clear guidance on the chain of command, strengthened and clarified the roles and functions of the Secretaries of the Military Departments, enhanced effective civilian control, increased efficiency and reduced duplication.
The goals of the Congress in enacting these defense reforms, as reflected in section 3 of the Goldwater-Nichols Department of Defense Reorganization Act, can be summarized as strengthening civilian control, improving military advice; placing clear responsibility on the combatant commanders for the accomplishment of their missions; ensuring the authority of the combatant commanders is commensurate with their responsibility; increasing attention to the formulation of strategy and to contingency planning; providing for more efficient use of defense resources; and enhancing the effectiveness of military operations and improving the management and administration of the Department of Defense.
Do you agree with these goals?
Answer: Goldwater-Nichols and related statutes made important improvements in DoD organizational structure based on strong civilian control and effective war fighting capabilities. I agree completely with the goals of the Congressionally enacted defense reforms.
Earlier this year there were articles which indicate an interest within the Department of Defense in modifying Goldwater-Nichols in light of the changing environment and possible revisions to the national strategy.
Do you anticipate that legislative proposals to amend Goldwater-Nichols may be appropriate? If so, what areas do you believe it might be appropriate to address in these proposals?
Answer: At this time I have no proposals to offer as amendments to Goldwater-Nichols. However, if I am confirmed and if I identify possible changes that I think would be beneficial, I will propose changes through the established process.
If confirmed, what will be your relationship with:
The Secretary of the Air Force?
The Under Secretary of the Air Force?
The Assistant Secretaries of the Air Force?
Answer: The General Counsel is the chief legal officer of the Department of the Air Force, and, as such, provides legal advice and guidance to the Secretary, the Under Secretary, the Assistant Secretaries, other offices within the Office of the Secretary. If I am confirmed, I will strive to build an excellent working relationship with these individuals and provide them with sound and timely legal advice and guidance.
The General Counsel of the Department of Defense?
Answer: The General Counsel of the Department of Defense is the Chief Legal Officer and final legal authority for the Department. Should our interpretation of the law differ, I will defer to the DoD General Counsel’s opinion after advising her of my independent professional opinion. I will frequently interact with the DoD General Counsel in formal meetings and informally concerning matters of mutual interest. I believe an excellent relationship, including information exchange, consultation on significant legal issues and cooperation on litigation, exists between the Office of the Air Force General Counsel and the Office of the DoD General Counsel. If confirmed, I will continue to work closely with the DoD General Counsel in the best interests of the entire Department.
The Legal Advisor to the Chairman of the Joint Chiefs of Staff?
Answer: The Legal Advisor to the Chairman is responsible for providing advice and counsel to the Chairman and the Joint Staff on legal aspects of joint operations. I believe that an excellent relationship of cooperation exists between the Office of the Air Force General Counsel and the Legal Advisor to the Chairman, and that the two offices work well together on issues that affect the military departments, the Joint Staff, and the Combatant Commands. I fully expect to continue that trend to better serve our mutual interests.
The Staff Judge Advocates to the Commanders-in-Chief of the Combatant Commands?
Answer: The Staff Judge Advocates to the Commanders-in-Chief of the Combatant Commands report directly to their commanders, and work closely with uniformed legal officers in the military departments and the Legal Advisor to the Chairman of the Joint Chiefs of Staff. I believe that an excellent relationship of cooperation exists between the Office of the Air Force General Counsel and the Staff Judge Advocates of the Combatant Commands, and that the offices work well together on issues that affect the military departments, the Joint Staff, and the Combatant Commands. I fully expect to continue that trend to better serve our mutual interests.
The Judge Advocate General of the Air Force?
Answer: The Office of the Judge Advocate General is a component of the Air Staff and Assists the Chief of Staff and the Secretary of the Air Force in discharging their responsibilities. The Judge Advocate General’s Department provides legal services regarding the Uniform Code of Military Justice and military discipline. A Secretarial Order delineates the responsibilities of the General Counsel and The Judge Advocate General and reflects the extensive coordination between lawyers serving in those offices. If confirmed, I will strive to ensure a continued close working relationship, marked by cooperation and mutual respect, between the Office of the General Counsel and the Office of The Judge Advocate General of the Air Force.
The Joint Service Committee on Military Justice?
Answer: The Joint Service Committee is responsible for conducting an annual review of the Manual for Courts-Martial to ensure that it remains consistent with applicable law and reflects current judicial precedent. The Committee periodically recommends modifications to the Manual and the Uniform Code of Military Justice that are submitted to the General Counsel of the Department of Defense. If confirmed, I would expect to be generally informed about significant issues and recommendations arising from the Committee’s deliberations.
The Defense Acquisition Regulatory Council?
Answer: An attorney from the General Counsel’s office is a member of the Council. This attorney works closely with the other members of the Council, appointed from the Acquisition staff, and the members from the other Services, the Office of the Secretary of Defense, and NASA. I anticipate a continued close and good working relationship with other Council members.
The Chief of Staff of the Air Force?
Answer: As the chief legal officer of the Department of the Air Force, the General Counsel, in addition to The Judge Advocate General, is responsible for providing legal advice and guidance to the Chief of Staff and the Air Staff as well as to the Secretariat. If I am confirmed, I believe there will be a continuation of the excellent relationship that now exists between the General Counsel and the Chief of Staff and the Air Staff.
Airmen and their families?
Answer: I believe the Air Force’s greatest resource is it’s people. Quality people define the Air Force. If confirmed, I will do everything in my power as General Counsel, with the assistance and advice of The Judge Advocate General, to see that our Airmen and their families are well served by our civilian and uniformed lawyers.
Section 8019 of Title 10, United States Code, provides that the General Counsel of the Air Force shall perform such functions as the Secretary of the Air Force may prescribe.
What is your understanding of the duties and functions of the General counsel under current regulations and practices?
Answer: The General Counsel is the chief legal officer of the Department of the Air Force. The legal opinions issued by the General Counsel are the controlling legal opinions of the Department. The General Counsel provides legal advice and guidance to the Secretary, Under Secretary, Assistant Secretaries, other offices within the Office of the Secretary, and offices within the Air Staff. The Judge Advocate General is responsible for the administration of military justice. The General Counsel serves as the Designated Agency Ethics Official who is responsible for administration and enforcement of ethics and standards of conduct throughout the Department, and performs any other functions directed by the Secretary.
Assuming you are confirmed, what duties and functions do you expect that Secretary Peters will prescribe for you?
Answer: If I am confirmed, I believe that Acting Secretary Peters will expect me to provide sound and timely counsel, to provide objective, knowledgeable assessments on a wide range of legal issues, and to develop a collegial, professional relationship with the General Counsel of the Department of Defense and other Military Departments, with The Judge Advocate General and with the legal staffs of other government agencies with whom we work. Acting Secretary Peters will expect me to help maintain the highest standards of integrity and ensure the Air Force is well served by its legal staff.
Major Challenges and Problems
In your view, what are the major challenges confronting the General Counsel of the Air Force?
Answer: There are major challenges in many areas of litigation, acquisition, force reduction, environmental, international, space and base closure matters. One of the most important challenges concerns the expense of litigation and the time it takes to resolve disputes. A major and continuing challenge will be to find ways to resolve disputes more expeditiously and at less cost to the taxpayer.
In addition, as the Air Force pursues the Expeditionary Air Force model, there will be substantial legal issues to resolve to ensure we continue to be able to operate in a changing global environment.
Assuming you are confirmed, what plans do you have for addressing these challenges?
Answer: If confirmed, I intend to continue to review the way in which the Air Force resolves matters in controversy with individuals and private entities. I will continue to stress the need to resolve matters at early stages. I will also make sure that Air Force officials continue to be informed about alternative dispute resolution techniques, often used successfully in the private sector, and that those techniques are readily available when needed.
The General Counsel’s office will be involved in supporting the acquisition process. I believe Air Force acquisition officials must be made aware of the importance of involving attorneys in all major acquisition decisions, especially as a preventive measure, before problems arise. My office will be involved in all significant acquisition decisions made on major programs, particularly those made within the Office of the Secretary of the Air Force. I would also continue the General Counsel’s leadership role in the strong Air Force effort to combat fraud in Air Force programs.
Further, I will ensure the General Counsel and staff are actively involved in policy development for the Air Expeditionary Force model.
If confirmed, you will be entering this important position at a time of concern about the adequacy of the budget, force levels and readiness of our forces.
What background and experience do you have that you believe qualifies you for this position?
Answer: The legal issues which confront the Department of the Air Force are so far ranging that no one lawyer can have in-depth experience in all of them. However, whoever serves as General Counsel must possess keen judgment, sound legal and analytical skills, great integrity, and strong interpersonal and leadership skills. I believe my background and various legal experiences over the past 16 years have prepared me to meet these challenges.
First, as a trial lawyer in the public sector and the private sector, I have acquired a great deal of experience in the prosecution and defense of numerous complex criminal cases. As an Assistant U.S. Attorney in the Southern District of New York, I prosecuted cases in the Public Corruption Unit involving extortion, money laundering, civil rights violations, federal elections law violations, and police corruption. As a member of the firm of Paul, Weiss, Rifkind, Wharton, and Garrison, I have represented scores of businesses, educational institutions, public officials, and others in a wide variety of civil and criminal matters including the retrial of a major antitrust case, multinational and investment banking cases, and as litigation counsel for a university. My widely varied practice in state and federal courts has required me to learn new and sophisticated areas of the law, while others required me to take complex factual situations, simplify and apply them, in a persuasive fashion, to the applicable law.
Second, I have devoted a portion of my professional career to teaching. I have been an adjunct lecturer in law at Columbia Law School, where I taught trial practice to third year law students.
Third, I have devoted time and effort in numerous leadership positions to the improvement of the legal profession and the betterment of the community. I am serving, or have served, as the director of The Legal Aid Society, the Vera Institute of Justice, the Association of the Bar of the City of New York, and the Federal Bar Foundation. I’ve been a member of the Committee on the Judiciary of the New York City Bar Association, Committee on Professional and Judicial Ethics of the New York City Bar Association, the Second Circuit Task Force on Gender, Race and Ethnic Fairness, the Criminal Justice Act Panel in the United States District Court for the Southern District of New York, and the Columbia University School of Law Board of Visitors.
Each of the above experiences has prepared me to lead, work with and motivate others, to deal with and resolve new challenges, to counsel effectively, and advocate persuasively. My extensive involvement in professional and community associations has equipped me to work cooperatively and reach consensus among differing people with disparate points of view. I believe my experiences will enable me, if confirmed, to provide strong leadership and sound legal counsel, and create an atmosphere of cooperation and team work.
Do you believe there are any steps that you need to take to enhance your expertise to perform the duties of the General Counsel of the Air Force?
Answer: I believe I have the requisite legal training and abilities and leadership skills to serve as the Air Force General Counsel. I look forward to dealing with the broad spectrum of legal issues that relate to the operation of the Air Force. If confirmed, I will work with the many talented civilian and military lawyers in the Department to broaden my expertise and increase my knowledge to better serve the Air Force.
Delivery of Legal Services
If confirmed, how do you envision your relationship with the Judge Advocate General’s Department (1) in the field of military justice; (2) in the various civil law fields affecting the operations of the Air Force?
Answer: I understand the more specific aspects of the duties of the General Counsel and the delineation of responsibilities of the General Counsel and The Judge Advocate General have been set forth in Secretary of the Air Force Orders. It is my intent, if confirmed, to develop a strong professional partnership with The Judge Advocate General to ensure the effective and efficient delivery of legal services that best serves the entire Department of the Air Force.
More generally, do you believe that the present division of responsibilities between the General Counsel and the Judge Advocate General adequately serves the legal needs of the Department of the Air Force?
Loan Repayment Programs
The Marine Corps and the Navy have both expressed concern at the retention statistics for uniformed lawyers. One cause often referred to is the substantial load of academic debt which law school graduates entering on active duty frequently carry. It has been suggested that a loan repayment program offering repayment in return for additional active duty commitments would improve the situation.
Do you believe that this is a problem requiring legislative relief?
Answer: It is my understanding the Air Force is currently able to meet its attorney recruitment goal without a loan repayment program and is retaining sufficient judge advocates to manage its force. I am informed that since the armed forces lost the student loan deferral program in 1993, the Air Force Judge Advocate General’s Department has seen nearly a 40% decline in the number of applications. I believe a loan repayment program and loan deferral program warrant serious study, as does any program that will enhance our ability to recruit and retain individuals of the same high caliber we currently have serving on active duty.
If so, and if you are confirmed, would you actively support funding for such a program in the FY 00 Air Force budget request?
Answer: As a matter of principle, I will support programs that enable the Air Force to retain quality personnel.
Ethical Standards for Lawyers
In the past, there has been academic discussion of the problems government lawyers face in defining who precisely is their client.
In your view, who is the client of the General Counsel of the Air Force?
Answer: The client of the General Counsel of the Air Force is the Department of the Air Force. The one exception is when an attorney is assigned by competent authority to represent an individual, such as at a court-martial. I understand that a 1988 Report by the District of Columbia Bar Special Committee on Government Lawyers and the Model Rules of Professional Conduct provides an excellent review of this subject.
What is your understanding of the action that a Department of the Air Force attorney should take if the attorney becomes aware of improper activities by an Air Force Department official who sought the attorney’s legal advice and the official is unwilling to follow the attorney’s advice?
Answer: In the circumstances described, the attorney should immediately bring the matter to the attention of his or her supervisor and if necessary up through the professional chain until the problem is satisfactorily resolved. Any problem not resolved at a lower level should be brought to the General Counsel. It may also be necessary to report the matter to the official’s supervisor and up through the chain of command to a level that can resolve the problem.
In your opinion, do the laws, regulations, and guidelines that establish the rules of professional responsibility for attorneys in the Department of the Air Force provide adequate guidance?
Answer: Yes. All Air Force lawyers are subject to the ethical rules of the Bar of the State, or District of Columbia, of which the lawyer is a member. Lawyers engaged in litigation are also subject to the rules of the court in which they appear. The Judge Advocate General of the Air Force has also issued Rules of Professional Responsibility and Air Force Standards for the Administration of Criminal Justice which are binding upon all military and civilian lawyers in The Judge Advocate General’s Department. I believe the applicable laws, regulations, and guidelines are adequate and that each attorney in the Office of General Counsel is educated on their substance and application. If confirmed as Air Force General Counsel, I will work to ensure that all Air Force lawyers adhere to the highest standards of professional conduct.
Selection of Officers for Promotion
The fair and impartial conduct of the promotion selection process is a matter of great concern to the Senate Armed Services Committee. The Committee has issued a number of reports and has developed legislation, which was enacted, addressing serious problems related to the integrity of the selection process.
In your view, what is the responsibility of the General Counsel in ensuring that the process, including the procedures governing providing information to selection boards and throughout the selection process, is conducted in a fair and impartial manner?
Answer: I am informed that the General Counsel’s office provides legal advice on officer promotion procedures and the processing of selection board reports. This includes review of the Secretary’s Memorandum of Instruction to each selection board and of each selection board report. In addition, the General Counsel, acting for the Secretary, reviews reports of substantiated unfavorable information concerning senior officers to determine whether that information should be made available to selection boards. The Office of the General Counsel of the Air Force has also taken an active role in developing Air Force officer promotion procedures and directives which address the problems identified by the Committee and ensure that promotions are made in full compliance with law and Department of Defense guidance. If I am confirmed, it is my intention, subject to the Secretary’s direction, to continue this level of legal oversight of the officer promotion process, in close cooperation and coordination with the uniformed Air Force legal and personnel communities.
Role with Regard to Nominations
What is your view as to the appropriate role for the General Counsel in reviewing proposed military nominations and in reviewing communications from the Department to the Committee regarding both civilian and military nominations?
Answer: The current Air Force practice, which I would continue if confirmed, is for the General Counsel to review each selection board report, and each Departmental communication to the Committee, the President, or the Secretary of Defense, concerning nominations, for consistency and compliance with law and regulation. This review is particularly important in cases of nominees against whom there have been findings of misconduct or improprieties, to ensure that the Air Force meets its obligations of full and meaningful disclosure. In addition, for each three and four star nominee the General Counsel reviews the nominees’ financial disclosure reports and related financial information to ensure there are no conflicts of interest.
In order to exercise its legislative and oversight responsibilities, it is important that this Committee and other appropriate committees of the Congress are able to receive testimony, briefings, and other communications of information.
Do you agree, if confirmed for this high position, to appear before this Committee and other appropriate committees of the Congress?
Do you agree, when asked, to give your personal views, even if those views differ from the Administration in power?
Do you agree, if confirmed, to appear before this Committee, or designated members of this Committee, and provide information, subject to appropriate and necessary security protection, with respect to your responsibilities as the General Counsel of the Air Force?
Do you agree to ensure that testimony, briefings and other communications of information are provided to this Committee and its staff and other appropriate committees?