STEPHEN W. PRESTON
GENERAL COUNSEL OF THE DEPARTMENT OF THE NAVY
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
SEPTEMBER 22, 1998
Thank you, Mr. Chairman and members of the Committee. I am deeply honored to appear before you as the nominee to be General Counsel of the Navy. It was a great privilege for me to serve in the Department of Defense just three years ago, and I am very excited at the prospect of returning now to the Department of the Navy. If confirmed, I will be especially proud to serve the Navy and the Marine Corps -- Services with a distinguished history in the defense of our country and a critical role in its continued defense.
This is a period of enormous change for the Department of the Navy, and with that change comes a host of issues, opportunities and challenges. If I am confirmed, I pledge my full support to the Secretary of the Navy in the effort to resolve those issues, seize those opportunities and overcome those challenges. My goal is to provide the Secretary and others with the
best -- sound, candid and objective -- legal advice possible. I will also seek to ensure the proper application of the law and the effective delivery of quality legal services throughout the Department. More broadly, I look forward to joining the dedicated and talented men and women of the Navy-Marine Corps team in carrying their proud tradition and vital mission into the next century.
Should I be confirmed, I am prepared to work with this Committee and the Congress in addressing the range of legal issues that may arise during my tenure. In the meantime, I appreciate the Committee's invitation to appear today and would be pleased to answer any questions.
Advance Questions for Mr. Stephen W. Preston
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?
Yes. If confirmed, I am committed to the complete and effective implementation of these reforms.
What is your view of the extent to which these defense reforms have been implemented?
I believe these reforms have been fully accepted and integrated into the Armed Services. It is my understanding the legislation has strengthened civilian leadership while improving the effectiveness of uniformed personnel. This was accomplished, in large part, by clarifying the responsibilities and authorities of the Joint Chiefs of Staff, the Chairman of the Joint Chiefs, the Secretary of Defense, and the Secretaries of the Military Departments. Since the legislation was enacted, I believe that we have seen the effectiveness of the joint warfighting forces significantly improve. Lines of communication, interoperability, and joint operation and training appear to have benefited as a direct result of these reforms.
What do you consider to be the most important aspects of these defense reforms?
Overall, strengthening of the civilian leadership and enhanced clarity of the chain of command represent significant advancements that were fostered by the reforms. The enhanced ability of staffs and the combatant commanders-in-chief to plan and execute their assigned missions has been demonstrated both in peace and conflict.
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?
Yes. I am confident working with the Secretary and Congress, the Department will continue these efforts and strive to ensure the full intent of Congress is realized.
Recently, there have been 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?
At this stage of the process, I am unaware of any movement or need to amend Goldwater-Nichols. If confirmed, I will have the opportunity to fully understand and assess the situation. At that point, I will be in a better position to address what, if any, legislative provisions might be needed to improve Goldwater-Nichols.
If confirmed, what will be your relationship with:
The Secretary of the Navy
The Under Secretary of the Navy
The Assistant Secretaries of the Navy
Subject to the authority, direction and control of the Secretary, the General Counsel is the chief legal officer of the Department. He serves as the principal legal advisor to the Secretary. Directly and through staff, he provides legal advice, counsel and guidance to the Secretary, the Under Secretary and the Assistant Secretaries, and their staffs.
The General Counsel of the Department of Defense
The General Counsel of the Department of the Navy reports to the Secretary of the Navy. However, the General Counsel of the Department of Defense is the chief legal officer of the Department of Defense. If confirmed, I intend to work closely with the DOD General Counsel on matters of mutual interest or concern. Having previously served in the DOD Office of General Counsel, I look forward to a most productive working relationship.
The Legal Advisor to the Chairman of the Joint Chiefs of Staff
The Staff Judge Advocates to the Commanders-in-Chief of the Combatant Commands
With respect to the Legal Advisor to the Chairman of the Joint Chiefs of Staff and the Staff Judge Advocates to the Commanders-in-Chief of the Combatant Commands, if confirmed, I expect our respective offices will consult and cooperate on any matters of mutual interest or concern that may arise.
The Judge Advocate General of the Navy
My understanding is that the relationship between the General Counsel and the Judge Advocate General has been characterized by full consultation, close cooperation and careful coordination. Such a relationship is essential to ensure the faithful execution of the laws throughout the Department. If confirmed, I am confident this close and collegial professional relationship will continue.
The Counsel to the Commandant of the Marine Corps
The Counsel for the Commandant of the Marine Corps and his subordinate attorneys are members of the Office of the General Counsel. They report to the General Counsel and keep him apprised of matters of significance.
The Joint Service Committee on Military Justice
I understand the General Counsel does not have a direct responsibility concerning the Joint Service Committee on Military Justice, which exists to review the Manual for Courts Martial. If confirmed, I expect to be informed about significant issues arising from the activities of the Committee.
The Defense Acquisition Regulatory Council
My understanding is that the General Counsel designates a legal representative of the Department to serve as a non-voting member of the Defense Acquisition Regulatory Council.
The Chief of Naval Operations
The Commandant of the Marine Corps
My relationships with the Chief of Naval Operations and the Commandant of the Marine Corps will be as prescribed by the Secretary, and as necessary to provide for the proper application of the law and effective delivery of legal services within the Department. If confirmed, I look forward to working closely with the CNO and the Commandant.
Sailors, Marines and their families
It has been said, and I agree, that the heart and soul of the Navy-Marine Corps team is its people. If confirmed, I am committed to doing everything in my capacity to ensure our Sailors, Marines and their families are well served by the legal community.
Section 5019 of Title 10, United States Code, provides that the General Counsel of the Navy shall perform such functions and exercise such powers as the Secretary of the Navy may prescribe.
What is your understanding of the duties and functions of the General Counsel under current regulations and practices?
The General Counsel is the chief legal officer of Department, and legal opinions issued by the General Counsel are the controlling legal opinions within the Department. His duties include the following: Directly and through staff, the General Counsel provides legal advice, counsel and guidance to the Secretary, the Under Secretary and the Assistant Secretaries, and their staffs. As head of the Office of the General Counsel, he is also responsible for providing legal services throughout the Department in a variety of fields, including business and commercial law, real and personal property law, fiscal law, civilian personnel and labor law, intellectual property law, environmental law, and litigation. In addition, the General Counsel serves as the Debarring Official for the Department. He also serves as the Designated Agency Ethics Official for the Department.
Assuming you are confirmed, what duties do you expect that Secretary Dalton will prescribe for you?
If confirmed, I anticipate the Secretary will expect me to perform the duties noted above in response to the previous question. I anticipate he will want my candid and objective legal advice concerning issues, opportunities and problems as they arise. I further anticipate he will want me to work closely with the Judge Advocate General to ensure the faithful execution of the laws throughout the Department, and with the General Counsel of the Department of Defense and others on matters of mutual interest or concern.
Major Challenges and Problems
In your view, what are the major challenges confronting the General Counsel of the Navy?
This is a period of enormous change for the Department and its constituent Services, arising largely from the substantial downsizing that has taken place and is ongoing. With that change comes a host of issues, opportunities and problems the proper and effective treatment of which is critical. In my view, the single greatest challenge confronting the General Counsel is to ensure sound legal advice and quality legal services are available on a timely basis to the civilian leadership and elsewhere in the Department to address these matters as they arise. In addition, the General Counsel must be prepared to meet the need for such advice and services in connection with policy developments and other events, foreseen or unforeseen, that may occur. Finally, I expect that the Office of the General Counsel will have to be managed ever more efficiently and effectively in order to satisfy the Department's requirements in coming years.
Assuming you are confirmed, what plans do you have for addressing these challenges?
If confirmed, I intend to review and assess the resources, organization and operation of the Office of the General Counsel, and to implement whatever changes may be necessary to enhance its ability to confront these challenges.
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?
I believe my work as an attorney at the Department of Defense, elsewhere in the federal government and in the private sector will serve me well as General Counsel, if confirmed. For two years, from 1993 to 1995, I served in the Office of General Counsel of the Department of Defense, initially as Deputy General Counsel (Legal Counsel) and then as the Principal Deputy General Counsel. During a portion of that period, in 1994, I served as acting General Counsel. I advised senior Department officials. I managed the legal staff serving the Office of the Secretary and the Defense Agencies. I dealt with a wide range of matters involving acquisition and logistics, environment and installations, civilian and military personnel, fiscal law, international and intelligence matters, standards of conduct, litigation, and legislation. Of course, I dealt continuously with representatives of the Department of the Navy. Since that time, I have served as a Deputy Assistant Attorney General at the U.S. Department of Justice, heading the office responsible for litigation of civil cases in appellate courts on behalf of the United States, including the Department of the Navy. My government service to date, as well as private practice before that, have provided extensive experience in problem solving, client counseling, dispute resolution and management -- much of it in the national security context. This experience, I believe, has prepared me to take on the duties of the General Counsel.
Do you believe that there are any steps that you need to take to enhance your expertise to perform the duties of the General Counsel of the Navy?
Although I believe I possess the essential legal expertise and management skills to be the General Counsel, I continue to learn more about the Department and the work of my prospective office. More broadly, I hope to benefit from the wisdom and knowledge of those who have devoted themselves to service in the Navy and Marine Corps, as well as the career civil servants in the Department. If confirmed, I will seek out their advice.
Delivery of Legal Services
Traditionally, the General Counsel of the Navy has bulked larger in the delivery of legal services than the General Counsels of the other two military departments.
If confirmed, how do you envision your relationship with the Judge Advocate General’s Corps (1) in the field of military justice; (2) in the various civil law fields affecting the operations of the Navy and Marine Corps?
I understand that the Judge Advocate General has primary responsibility for the administration of the military justice system. If confirmed, I expect that he and I will consult and cooperate on matters of mutual interest or concern relating to military justice, bearing in mind his statutory duties and special expertise in this area.
With respect to civil law matters involving Navy and Marine Corps components, my understanding is that primary responsibility is divided, by major subject area, between the Office of the General Counsel and the Office of the Judge Advocate General. From time to time, I expect, there will arise matters in which responsibilities overlap. In such instances, and particularly with regard to litigation, I believe that cooperation and coordination between the two offices is imperative.
More generally, do you believe that the present division of responsibilities adequately serves the legal needs of the Navy?
Yes. If confirmed, I will be alert to the need for the division of responsibilities adequately to serve the legal needs of the Naval Services. If I detect any deficiencies, I will act to address them.
Manning of the Judge Advocate General Corps
The authorized manning of the Judge Advocate General’s Corps in the Navy has significantly decreased in recent years. Logically, this would seem to lead to either a reduction in the delivery of legal services within the Department of the Navy or an increase in the workload of the General Counsel’s office.
In your opinion, does the Department of the Navy require increases in manning: in judge advocates; in enlisted legalmen; or in civilian lawyers in the General Counsel’s office?
The level of military and civilian legal staff should be sufficient to permit the delivery of legal services to the extent needed in the Department. At this stage, however, I am not able to judge the adequacy of manning in judge advocates, enlisted legalmen, or in civilian lawyers in the Office of the General Counsel. With respect to uniformed legal personnel, if confirmed, I will be in a position to work with the Judge Advocate General and others to evaluate the extent of legal services needed and the level of staffing necessary to meet that need. At this stage, I am certainly aware of the difficult challenge posed by recent decreases in manning of the Judge Advocate General’s Corps, and I am especially sensitive to the prospect that any further decreases may adversely affect the provision of legal services. With respect to civilian lawyers, I am not currently aware of any opportunity or need to decrease or increase substantially staff levels in the Office of the General Counsel. If confirmed, I intend to assess the resources and workload of the office in order to ensure that the level of staffing is appropriate.
If the answer to any of the above is "yes," and you are confirmed, would you actively support additional billets in the FY 00 Navy budget request?
At this stage, I do not know whether or not I would actively support additional billets in the FY 00 Navy budget request. I expect this is a matter I will discuss with the Judge Advocate General and others if confirmed.
Loan Repayment Program
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?
My understanding is that burdensome school debt may be a substantial factor in the failure to retain highly qualified judge advocates beyond their first active duty tour. At this stage, however, I do not have a firm understanding of the magnitude of the problem or the likely efficacy of the suggested solution. I would certainly consider supporting a loan repayment program that would be effective, fair and fiscally sound. I would also consider supporting other options to mitigate the adverse impact of school debt on the retention of judge advocates.
If so, and if you are confirmed, would you actively support funding for such a program in the FY 00 Navy budget request?
At this stage, I do not know if I would actively support funding for a loan repayment program in the FY 00 Navy budget request. I expect that this is a matter that I will discuss with the Judge Advocate General and others if confirmed.
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 Navy?
In my view, the client of the General Counsel of the Navy is the Department of the Navy. If there are conflicts between the interests of the Department and an official of the Department, the General Counsel's duty is to the Department. The General Counsel works with officials of the Department in the course of their duties as its agents, not in the course of their personal activities.
What is your understanding of the action that a Department of Defense attorney should take if the attorney becomes aware of improper activities by a Navy Department official who sought the attorney’s legal advice and the official is unwilling to follow the attorney’s advice?
If an attorney is aware that a Department official
intends to engage in improper activities despite the
attorney's legal advice, the attorney should
immediately report the situation to his or her
professional supervisor and, if necessary, further up
the professional chain of command until the matter is
In your opinion, do the laws, regulations, and guidelines that establish the rules of professional responsibility for attorneys in the Department of the Navy provide adequate guidance?
There are a number of ethical frameworks that apply to attorneys in the Department. Every lawyer must be an active member in good standing of the Bar of a State or the District of Columbia, and is subject to the professional responsibility rules of that jurisdiction. Moreover, lawyers conducting litigation are subject to the rules of the forum in which they appear. In addition, the federal government imposes standards of conduct to which all employees/members, including lawyers, must adhere. Finally, Navy and Marine Corps judge advocates are bound by professional responsibility rules promulgated by the Judge Advocate General. I believe that adequate guidance is provided under this regime. Department attorneys, civilian and military, have a long history of ethical practice, and I aim to see that it continues. If confirmed, I will be alert to the need for adequate guidance and, if I detect any deficiencies, I will act to address them.
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?
My understanding is that the Judge Advocate General has primary responsibility for providing legal advice in the conduct of the officer promotion selection process. If confirmed, my role will be as directed by the Secretary. If so directed, I would review the process and governing procedures, and provide the Secretary with my candid and objective advice concerning compliance with the law, fairness and impartiality.
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?
If confirmed, my role will be as directed by the Secretary. With respect to proposed military nominations in particular, I expect to be called upon from time to time to review a nomination or a candidate's record, as in the case of past misconduct or alleged misconduct on the part of the candidate. In those instances, I would expect to consider the completeness and regularity of the package as a matter of both substance and form, to evaluate the significance of the adverse or alleged adverse information (if any), and to provide the Secretary with my candid and objective advice concerning the same.
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 Navy?
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?