History of the
Coast Guard Legal Program
The Coast Guard Legal Program Begins
The Coast Guard legal program began as the Military Discipline Branch in the Office of Operations after an Act of Congress of May 26, 1906, created a military discipline system for the Revenue Cutter Service. The branch remained in the Office of Operations following the creation of the Coast Guard on January 28, 1915 with the merger of the Revenue Cutter Service and the Lifesaving Service. The function of the branch during these early years was primarily to review the several types of Coast Guard courts, to prepare actions for the Secretary of Treasury, and to perform other matters of military discipline. Edward P. Harrington served as the head of the Military Discipline Branch and held the title of Chief Law Officer.The Legal Division is Created
The Revenue Act of 1934 placed all legal duties and functions of the Department of the Treasury in the newly created Office of the General Counsel of the Treasury Department. As a result, a Legal Division was established as a part of the organization of Coast Guard Headquarters with the division chief designated chief counsel. Organizationally, the Legal Division was part of the commandant’s staff, and the chief counsel worked under the direction of the assistant commandant. Joseph P. Tanney, who had succeeded the retiring Harrington in 1931, became the first chief counsel.
The Revenue Act of 1934 and the efforts of Herman Oliphant, the first general counsel of the Treasury Department, substantially enlarged the functions and responsibilities of the Coast Guard Legal Division that was created in 1934 by creating a legal advisory service to provide legal opinions, both formal and informal, to the Coast Guard administrative officers. Over time the General Counsel regularly assigned to the Legal Division other legal work concerning contracts, real estate, legislation, regulation review, and other matters affecting the Coast Guard.
Kenneth Stevens Harrison assumed the position of Chief Counsel in 1938 upon Tanney’s resignation to enter the private practice of law. Harrison was assigned to the Coast Guard by the General Counsel of the Department of the Treasury where he had been serving since his employment from the War Department in 1930.
Coast Guard Law Expands in World War II
The outbreak of war in Europe was swiftly followed by the Neutrality Act of 1939. This act, together with the transfer of the Lighthouse Service to the United States Coast Guard in the summer of 1939, resulted in a considerable increase in the functions and duties of the Coast Guard and its Legal Division. These additional responsibilities required an increase in resources, and several attorneys, stenographers, and clerks were assigned to the Legal Division and the position of Assistant Chief Counsel was created. A short time later, when President Roosevelt declared a State of Limited National Emergency and activated the Espionage Act of 1917, a Port Security program was established with extensive organization, regulations, and responsibilities. The size of the United States Coast Guard continued to increase, and the passage of emergency legislation, such as the Coast Guard Reserve Act, added to the duties and responsibilities of the Legal Division. The transfer of the Coast Guard to the U. S. Navy on November 1, 1941, created several legal challenges, particularly regarding the transition from the Coast Guard disciplinary system to that of the Navy under the Articles for the Government of the Navy. The sudden entry of the United States into World War II on December 7, 1941, resulted in a rapid expansion of the Coast Guard to carry out its war missions.Almost all of the attorneys in the Legal Division were civilians at the time. Most were commissioned in the Coast Guard Reserve during the war – including Harrison who, having served as an officer in the Army Reserve for sixteen years before World War II, was appointed as a lieutenant commander on May 30, 1942. He rapidly advanced in grade, first to commander sixteen days later, and then to captain in May, 1943.
Article 841 of Coast Guard Regulations, 1940, for the first time provided for a District Law Officer whose duties concerned the proceedings of Coast Guard Courts and Boards and examination of contracts and leases. Practically no law officers were created in the two years following, attributable to a lack of available regular officers with law degrees and apparent concerns about the relationship of these officers with the Treasury General Counsel to whom all legal activities of the department were committed. Once the war began, the need was great and passage of the Reserve Act provided the means to fill out the offices. As these positions were filled, law officers were also provided to captains of each major port and the major independent units such as the Coast Guard Yard, Supply Depots, and Training Stations.
The Legal Division at Coast Guard Headquarters faced difficult problems during the first year of World War II. Besides the increased demands for opinions, legal advice, and other legal functions, recruiting and indoctrinating new commissioned officers for the Legal Division – Mr. Harrison described an avalanche of applications – and for the field activities, and creating a service-wide legal organization, for the first time required considerable time and attention. Most of the new officers were appointed as lieutenant (junior grade) and a few as ensign. During the first year of the war, several groups of law officers came to Headquarters for a two-week indoctrination course created for them. This was also the first time in its history that the Legal Division provided support to the field. This nascent Coast Guard-wide program required personnel management for the first time, and in 1942 a study of Coast Guard organization prescribed that the Legal Division would advise the Chief Personnel Officer on matters relating to legal personnel.
Executive Order 9083, which became effective on March 1, 1942, transferred the major functions of the former Bureau of Maritime Inspection and Navigation to the Coast Guard. This move resulted in an extensive field of new legal activity for the Legal Division. For the first time, the Coast Guard was vested with the authority to regulate certain phases of an industry – namely, the administration of vessel inspection and navigation laws. These statutes encompassed a system that had grown piecemeal for 150 years; they were difficult of construction and interpretation, particularly in view of the special considerations and adjustments resulting from the emergency conditions arising from the war. To handle this new workload, a special section in the Legal Division was created and designated the Admiralty and Maritime Section.
Coast Guard commanders and officers, unaccustomed to having lawyers close at hand, did not know what to do with them or whether they could be trusted. Mr. Harrison took on this issue when addressed the chiefs of staff of the districts who were assembled at Headquarters in the summer of 1942:
I regret to say that in some quarters there is a general antipathy against lawyers. They are looked upon as obstructionists and causes of delay when something is desired to be done. This is a mistaken viewpoint, gentlemen. The role of the lawyer, as a legal adviser, is to ascertain what his client wishes to do and the procedure he proposes to follow, and then advise the client whether there is any legal objection to such action. If the objective is legally permissible, but the procedure is faulty from a legal point of view, it is the role of the lawyer to advise his client in what manner the action may be taken without legal objection. He should exhaust every ingenuity he possesses to support the action which his client wishes to take. … The value of the district law officer … depends upon the extent his services are utilized. … Whenever a Coast Guard officer acts upon the legal advice given to him by the District law officer, the District law officer shares with him the responsibility for the action taken.In tandem, The law officer should be regarded as the general advisor of the District Coast Guard Officer on legal matters. The law officers should attend staff meetings and his opinion should be solicited, whenever possible, prior to decision on all matters of law or important decisions of policy having legal aspects. In particular, the law officers should have cognizance of contracts, real estate, courts and boards, law enforcement and review, marine casualty investigation and review, tort claims of and against the Government, and fines, penalties and forfeitures.” He cautioned that: “The law officers so assigned is [sic] not to be relieved of his legal duties unless the District Coast Guard Officer personally assumes the responsibility of the performance of these duties.” Although the 1940 regulations authorized a single officer, the Commandant observed the volume of work may warrant the assignment of others.
The Legal Division was organized into eight sections during the war reporting to the Chief Counsel. The sections were: Opinion, Port Security, Admiralty and Maritime, Contracts, Real Estate, Courts and Boards, Legislative, and Patent. In addition, there were several special assistants to the Chief Counsel who were assigned special projects and tasks not falling within the cognizance of any particular section. The office of the District Law Officer was organized along the same lines, except that in the small offices the work of several sections was combined. There were no legislative or patent sections on the district level.
During the war, the staff of the Legal Division comprised about fifty, half of whom were lawyers. There were about eighty officer-lawyers assigned to field offices, including sixteen in the districts.
With the end of World War II and the resulting massive demobilization, the civilians that had been commissioned as reserve officers reverted to their civilian status and many returned to private practice. Captain Harrison returned to civilian status in April 1946, but retained his commission in the Coast Guard Reserve, eventually being appointed the Reserve’s first permanent Rear Admiral on June 28, 1956.
The post-World War II period contained few legal billets for active duty Coast Guard officers with law degrees. In late 1947, for instance, of the twenty-one people assigned to the Legal Division in Coast Guard Headquarters only three were commissioned officers, the remaining eighteen were civilians. There were no field personnel whose time was fully devoted to the handling of the legal matters that arose in the various Coast Guard district offices. The legal section headed by the district law officer that had existed in each district office during World War II had been consolidated in July 1947 into an organizational component headed by the "Legal and Intelligence Officer." This office was responsible to the district chief of staff for the performance of all duties other than those duties concerning legal matters. In the performance of legal duties, the Legal Officer advised the district chief of staff, but was responsible to the Legal Division and the Chief Counsel at Coast Guard Headquarters. Coincidentally, a Coast Guard Reserve Voluntary Legal and Intelligence Unit 05-8 was established in 1949 and was commanded by Harrison in his Reserve capacity until 1960.
During the late 1940’s some lawyers returned to active duty in the Coast Guard after a brief period as civilians in private practice. Despite the scarcity of legal billets for military lawyers following World War II, many landed in quasi-legal billets, such as Marine Inspection and Investigation Offices, Captain of the Port Offices, and Port Security Units.the Commandant sent a letter on August 15, 1942, to all District Coast Guard Officers calling to their attention that “[m]any issues arising from military and civil law enforcement activities, the port security program, the merchant seaman training program, and the integration of the former Bureau of Marine Inspection and Navigation are legal in character”, and that “the District Law Officer serve on the staff of the District in the same fashion as the Chief Counsel functions as a part of my staff at Headquarters.
Uniformed Law Specialists Are Created
The arrival of the Uniform Code of Military Justice (UCMJ) in 1950 created an immediate need for legally qualified officers in the Coast Guard districts. The requirements of the UCMJ resulted in the establishment of a single legal billet in each Coast Guard district as the staff legal officer. To fill these billets initially, the Coast Guard used some of the lawyers commissioned during World War II. Although Congress had authorized funds as early as 1934 to fund law school for regular officers, not more than five or six were sent between then and 1942, and all of them went to sea after graduation. Few others were funded subsequently. One example was Lieutenant Commander William L. Morrison who attended law school from 1947 to 1949 and would eventually become the first military chief counsel. With the UCMJ looming, a program of postgraduate education in law was institutionalized. In 1949-1950, prior to the effective date of the UCMJ, five Coast Guard officers entered law school. whether other officers had been sent to law school before then is unclear. Subsequently, varying numbers of officers received assignments to law schools, with the number stabilizing at two per year by the mid 1950’s and continuing until 1969.
The increased legal responsibilities and workload resulting from the UCMJ also caused a number of military lawyers to be added to the Legal Division at Coast Guard Headquarters as "Special Assistants to the Chief Counsel," who remained Mr. Harrison. Enactment of the UCMJ also required a Judge Advocate General for the Coast Guard for the first time and Congress assigned that duty to the General Counsel of the Department of the Treasury, although many of the duties were subsequently delegated to the Chief Counsel.
The Legal Division Becomes the Office of the Chief Counsel & the First Military Chief Counsel is Appointed
When the Office of the General Counsel of the Treasury Department was created and the Legal Division in Coast Guard Headquarters was established in 1934, the Chief Counsel and his staff in the Legal Division operated under the supervision of the general counsel of the Treasury Department. The transfer of the Coast Guard to the newly created Department of Transportation in 1967 provided an opportunity for change in the Legal Division’s organizational alignment.
When the Coast Guard was transferred, the Legal Division was under resourced and its organization had not appreciably changed over time. At the same time, there was no established office of the General Counsel in the newly created Department of Transportation. A call went out to all of the modal administrations to provide personnel to staff the new department until permanent personnel could be hired. Captain William L. Morrison, a military attorney who was then serving as Deputy Chief of Staff for the Coast Guard, was assigned in April, 1967, as Assistant to the General Counsel. Captain Morrison had by then four command tours afloat and two ashore, and legal tours as Third District Legal Officer and Special Assistant to the Chief Counsel. Captain Morrison’s assistance in organizing the General Counsel’s office which included a study of other general counsel offices and the legal offices of the new modal administrations provided him a unique perspective to assess the Legal Division.
The Administrative Management Division of the Coast Guard conducted a study of the Legal Division in 1968. Recommendations of the study led to reorganization and realignment of the Legal Division, including its elevation to office level and making the Office of Chief Counsel responsible directly to the Commandant. The Office of Chief Counsel now consisted of six divisions: Maritime and International Law, Regulations and Administrative Law, Procurement Law, General Law, Military Justice, and Claims and Litigation. The Regulations and Administrative Law Division also was responsible for the Coast Guard legislative program. It quickly became clear, however, that legislation should be handled separately, and so a Legislation Division was soon created.
The 1968 reorganization also established the position of Chief Counsel as a military billet with the same rank as other office chiefs – rear admiral. On January 1, 1969, William L. Morrison, who had been appointed a rear admiral in January, 1968, and reassigned to the Coast Guard, was assigned as Chief Counsel. Records suggest he may have begun functioning in the role in November 1968. Mr. Harrison retired in 1968 at the age of 68. The Chief Counsel would remain a military billet from that time forward. The Assistant Chief Counsel remained a civilian.
The creation of the Office of Chief Counsel in 1968 coincided with the Military Justice Act of 1968, which radically changed the military justice system, creating the Courts of Military Review, military judges, and greatly expanding the role of attorneys in the military justice system. As a result, the Coast Guard field legal corps expanded rapidly. Civilian attorneys were offered reserve commissions to fulfill short-term needs, and the post-graduate program was expanded from two to ten students per year to provide a larger cadre of career law specialists.
In addition to implementing the reorganization of the Office of the Chief Counsel, Rear Admiral Morrison, who had earlier served as the legal advisor to the 1958 United Nations Law of the Sea Conference, was the Department of Transportation representative to an interagency Task Force on the Law of the Sea. Other judge advocates would participate in the development of the United Nations Convention on the Law of the Sea, including future Chief Counsel Joseph E. Vorbach and future Judge Advocate General John E. Crowley, Jr.
Rear Admiral Morrison detached from duty as Chief Counsel in 1972. He was subsequently assigned to command of the 14th District from 1973 to 1975, establishing a pattern that would be followed by his successors. He was succeeded as Chief Counsel by Rear Admiral Ricardo A. Ratti (1973-1976), Rear Admiral George Herbert Patrick Bursley (1976-1978), Rear Admiral Clifford F. DeWolf (1978-1981), and Rear Admiral Edwin Hassel Daniels (1981-1986).
Although the need for additional attorneys to fulfill the mandates of the Military Justice Act of 1968 abated by the mid-1970’s , the number of military lawyers assigned in the field and, to a lesser extent, in the Office of Chief Counsel, continued to rise. This need was principally due to two laws: the Magnuson Fisheries Conservation and Management Act in 1976, which established the 200-mile Fisheries Conservation Zone (precursor to the Exclusive Economic Zone) and expanded the Coast Guard’s role in enforcing fisheries laws; and the Federal Water Pollution Control Act of 1973, which greatly expanded the Coast Guard’s role in environmental protection. The post-graduate training for career military attorneys continued, but the rate slowed to about six per year by the early 1980’s.
The Coast Guard Realigns
Rear Admiral Joseph Edward Vorbach became Chief Counsel in June 1986. Coast Guard “realignment” began in 1987 to add 500 billets to meet the expanding "War against Drugs" when the Coast Guard was unable to obtain congressional approval to augment the force. The district offices in New York City and San Francisco were closed, and some support functions were withdrawn from the remaining ten districts and consolidated in two new Maintenance and Logistics Commands (MLC’s) in New York City and Alameda, CA. Among the functions transferred to the new MLC’s were claims, defense advocacy, real property, contract law, and civilian personnel law; the personnel needed to perform these functions and support the legal needs of the MLC commanders and their units nationwide were also transferred. As a result, the number of attorneys in the Coast Guard remained unchanged, although their distribution changed substantially. However, the number of legal support personnel declined by 15 percent, primarily at the district level.
The ultimate effects of realignment probably were not what anyone
expected. First, the loss of clerical personnel meant that there
were far fewer people to maintain the office law libraries, act as
court reporters for courts and boards, or perform ordinary clerical
tasks. As a result, the Chief Counsel successfully convinced the
chief of staff to purchase computers for every lawyer and support
staff assigned to the districts and MLC’s, together with a suite of
hardware and software that put the legal program at the forefront of
the Coast Guard’s office automation effort. Each attorney was given
word processing, E-mail, and calendaring software. Every computer
came equipped with the modem and software necessary to use both
LEXIS and WESTLAW, and each office was equipped with a laser
printer, color daisy wheel printer, and a scanner. All of the
computers within each office were networked, and every legal office
was linked via E-mail, giving attorneys from
A second effect was that the MLC Pacific Legal Staff, believing that its defense advocacy branch was understaffed, entered into a memorandum of agreement with the Navy Legal Services Office (NLSO) on Treasure Island under which the NLSO would provide all of the Coast Guard’s defense advocacy needs in exchange for the Coast Guard providing two attorneys to the NLSO to perform military justice work for the Navy. The pilot program, begun in 1988, was formalized with a Memorandum of Understanding (MOU) between the Chief Counsel of the Coast Guard and the Judge Advocate General of the Navy with the Navy, providing for 4 Coast Guard attorneys to be detailed to Naval Legal Services Offices and/or Trial Services Offices in Seattle, Norfolk, and Washington, DC, in return for the Navy providing the Coast Guard defense advocacy services nation-wide. Defense appellate legal services remained a direct Coast Guard responsibility. On February 24, 1987, Lieutenant Commander Robert W. Bruce, Jr., became the first member of the armed forces to argue a case before the Supreme Court, representing the accused in Solorio v. United States. While this landmark case was not decided in the accused’s favor, it dramatically widened court-martial jurisdiction over service members and, incidentally, affirmed the decision of the Coast Guard Court of Military Review. In 2012, the Coast Guard entered into an arrangement with the Navy in which a Coast Guard judge advocate was assigned to the Naval Legal Service Command which assumed responsibility for defense appellate services.
In 1991, the new Chief Counsel, Rear Admiral Paul E. Versaw, made several changes to the post-realignment legal program in order to "re-level" the workload in the district and MLC legal offices. First, he moved the MLC Atlantic Advocacy Branch to the Fifth District Legal Office in Portsmouth, Virginia, and entered into an memorandum of understanding with the Navy Legal Service Office in Norfolk similar to the one already in place in on the west coast concerning defense advocacy. Second, he centralized the household goods claims processing function in the Second District Legal Office. Third, he added attorney billets to several district offices to bring their complement of law specialists to at least three, which had been found to be the districts and MLC’s, partly to put a necessary second clerical person at the smaller districts, and also to re-vitalize the Legal Assistance Program which had very nearly died due to realignment.
Two other significant changes occurred in the early 1990’s.
First, as a result of the Exxon Valdez oil spill, Congress passed
the Oil Pollution Act of 1990 which greatly added to the Coast
Guard’s regulatory responsibilities. Additional attorneys were added
to the Coast Guard to write more than eighty major regulatory
packages needed to implement the Act, and a legal division was
established at the
The Coast Guard Streamlines
The 1996 Coast Guard streamlining and reorganization had its
impact on the legal program. Organizationally, the Office of the
Chief Counsel became just the Chief Counsel as the existing legal
divisions at Coast Guard headquarters became Offices. The Second
District Legal Office in
Rear Admiral John E. Shkor, the only officer to serve two tours as Chief Counsel, from 1993 to 1996, and 1998 to1999, and the only officer who, having served as Chief Counsel, was promoted to vice admiral, presided over the dramatic changes following enactment of the Oil Pollution Act, and shepherded the legal program through the difficult changes of streamlining. Rear Admiral Paul M. Blayney, who served from 1996-1998, also played a significant role during this turbulent time.
On February 18, 1996, Mr. Robert Horowitz became Deputy Chief Counsel, replacing Mr. Rue Helsel, who, after serving over a decade in the position, retired on September 30, 1995. Mr. Horowitz would serve in the position until November 19, 2000, when he was detailed as Director of Finance and Procurement.
Among his other accomplishments, Rear Admiral Jay S. Carmichael, who served as Chief Counsel from 1999 to 2001, created the seal of the Chief Counsel that has remained unchanged since.Coast Guard Law Responds to 9/11 & the Judge Advocate General is Designated
On September 11, 2001,
Rear Admiral Robert F. Duncan was serving as Chief Counsel during
the attacks on
Guard attorneys played a leading role at the
Assembly of the International Maritime Organization which convened
in November 2001. At the
urging of the
On November 25, 2002, Congress enacted the Maritime Transportation Security Act of 2002 which created a comprehensive regime for ship and port security. Coast Guard attorneys played an integral role in drafting the legislation, synchronizing many of its provisions with international measures that would be adopted the following month at the IMO. The Maritime Transportation Security Act triggered the most ambitious and extensive in Coast Guard history; the rulemaking was also adopted in the most abbreviated period in our history: interim rules were published in seven months; the final rules were published on October 22, 2003, becoming effective on November 1. This rulemaking, begun by the Maritime Safety and Security Council under Rear Admiral Duncan, was concluded by Rear Admiral John E. Crowley, Jr., who became Judge Advocate General in 2003 and served in that capacity until 2006.
The Homeland Security Act was enacted on the same day as the Maritime Transportation Security Act. Coast Guard counsel played an important behind-the-scenes role during negotiations on Capitol Hill concerning the transfer of the Coast Guard to the Department of Homeland Security, ensuring that the Coast Guard transferred intact and that its military maritime multi-mission character would be preserved.
The Homeland Security Act also amended the Uniform
Code of Military Justice to afford the Secretary discretion to
designate any official to serve as Judge Advocate General of the
Coast Guard. On March 1,
2003, the date on which the Coast Guard transferred to the new
Another dramatic development affecting the Coast Guard after 9/11 was passage of the Intelligence Authorization Act of 2002, which amended the National Security Act of 1947, to place the intelligence element of the Coast Guard within the Intelligence Community. A military lawyer was assigned to advise Ms. Francis Townsend who later was appointed the first Assistant Commandant for Intelligence (and who would later become Assistant to the President for Homeland Security and Counterterrorism). As the intelligence program would grow, so would the number and sophistication of military and civilian counsel supporting it.
In June 2002, the Integrated Deepwater System contract was awarded to Integrated Coast Guard Systems, a joint venture of Lockheed Martin and Northup Grumman. This contract was intended to launch a $24 billion recapitalization of Coast Guard vessels, aircraft, and command, control, communications, computers and intelligence. Although the award followed 9/11, the Deepwater program had been planned since the mid-1990’s. Coast Guard procurement counsel participated in every aspect of the program design and the award process. Subsequently they would participate in the sweeping revision of the program to accommodate post 9/11 requirements, down-stream procurements, and the Coast Guard’s response to reverses that would occur in the program.
The year 2002 also saw appointment of Vice Admiral Thomas J. Barrett as the first judge advocate to serve as Vice Commandant of the Coast Guard, and the second judge advocate after Vice Admiral Shkor to serve as a vice admiral. Other judge advocates have served in other flag positions throughout the Coast Guard. At one point in 2004, six Coast Guard flag officers were judge advocates, including the Judge Advocate General. Many other judge advocates have served in command at sea in small and large cutters and ashore, as well as in staff positions at all levels of the Coast Guard.
When the Department of Defense initiated its investigation of war crimes and began planning for military commissions, Coast Guard judge advocates supported the Criminal Investigation Task Force from 2002 to 2003, and served in the Office of the Department of Defense General Counsel from 2004 to 2006, planning for the commissions and advising the Legal Advisor to the Office of Military Commissions.
In August 1, 2003, the Judge Advocate General established Legal and Defense Services as a staff element to manage the legal assistance program and provide legal assistance in the National Capitol Region, and provide all physical disability counsel representation and criminal appellate defense, as well as manage trial defense billets and oversee other criminal defense services provided to the Coast Guard by the Navy. This moved the appellate defense function out of the Office of Military Justice and responsibility for legal assistance out of the Office of Legal Policy and Program Development. Over time, the number of appellate defense counsel increased and a Chief of Legal Assistance for the Coast Guard was created to support civilian legal assistance attorneys who had been hired for all district and MLC offices. This was the same period in which civilian legal assistance attorneys were established in every district, carrying on a program whose precursor was a legal assistance program created in World War II in which several commissioned officers at headquarters, and district legal officers, provided the same services provided today and worked with the ABA Committee on War Work just as CGJAG works with today’s ABA Committee on Legal Assistance to Military Personnel.
Professional development of attorneys was enhanced from 2004 through 2006, with the first Coast Guard military attorneys attending the Army Judge Advocate General’s Legal Center and School in Charlottesville, Virginia, to earn a master of laws (LLM) degree and serving year-long follow-on fellowships at the Center for Law and Military Operations. The decision to invest in the Charlottesville LLM rather than a subject-matter specific LLM was intended to provide a broader experience for officers to better prepare them for future leadership positions and exposure to judge advocates in other services. An annual Missions Law Course for operations law judge advocates and attorneys was run for the first time in 2006.
CGJAG Responds to Hurricane Katrina
On 29 August 2005, Hurricane Katrina devastated the Gulf Coast region and more than fifty Coast Guard attorneys – active, reserve, and civilian – from across the nation deployed to support the Coast Guard response to Katrina, and later, Hurricane Rita. Attorneys assigned the 8th Coast Guard District, now commanded by former Judge Advocate General Robert F. Duncan, supported the initial lifesaving and pollution response. In succeeding days and weeks, a Coast Guard attorney deployed as the legal advisor the Vice Admiral Thad Allen, the Principal Federal Official, and he and other Coast Guard attorneys solved numerous operational problems On the operational front, Coast Guard attorneys, from a variety of disciplines, provided real time/on demand advice to the legal staff of the Primary Federal Official (PFO) for Hurricanes Katrina and Rita and supported Coast Guard, DHS and federal interagency actions in response to a wide range of issues, including authority for inland search and rescue operations; law enforcement and force protection while escorting convoys of supplies; authority for removal of debris and pollutants; authority for forcible evacuations; facilitating the waiver or extension of certification, manning and licensing requirements for crews of commercial vessels; waiver of user fees associated with vessel inspection and licensing applications; applicability of the Federal Water Pollution Control Act to floodwater removal operations; execution of a temporary waiver to the Jones Act allowing foreign-flagged vessels to supplement U.S. vessel movement of petroleum products in the Coastwise trade; interpretation of the applicability of the Outer Continental Shelf Lands Act to foreign vessels chartered to assist in the survey and repair of damaged oil and gas platforms; advising on the use of the Oil Spill Liability Trust fund or the Stafford Act to pay for pollution response; and evaluating the safety and security regulations applicable to cruise ships utilized to provide temporary housing. Legal assistance and claims teams fanned out across the 8th and 7th Coast Guard districts to support Coast Guard people, 60 percent of whom in Louisiana, Alabama, and Mississippi suffered catastrophic losses. Legal teams provided legal assistance to over 1000 clients and assisted with approximately 600 personal property claims. Attorneys in the field and at headquarters supported Congressional, Government Accountability Office, and Inspector General investigations; and creatively resolved numerous operational issues.
At the same time, Captain William D. Baumgartner, who would become Judge Advocate General in 2006, led efforts at a diplomatic conference from October 10-14, 2005, to finalize amendments to the maritime terrorism convention: the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation.
Coast Guard judge advocates deployed to Iraq from 2008 through 2010 to participate in the prosecution of terrorists in the Criminal Court of Iraq and support detainee and counterinsurgency operations. One judge advocate served as command cadre in the Patrol Forces Southwest Asia. Other judge advocates deployed to Afghanistan in 2006 and from 2010 through 2012.
CGJAG Responds to Deepwater Horizon
In January, 2010, Coast Guard attorneys supported Coast Guard forces that deployed to provide humanitarian support after the devastating earthquake in Haiti. Their efforts called up reservists, prepared Coast Guardsmen for deployment, and provided legal support to deployed forces.
Not long after Haiti, on the evening of April 20, 2010, the Transocean-owned, BP chartered, Marshall Islands-flagged Mobile Offshore Drilling Unit, Deepwater Horizon, located approximately 72 miles Southeast of Venice, Louisiana, reported an explosion and fire onboard. After an intense search and rescue operation led by the Coast Guard, where 115 of the 126 crewmembers were saved, the Deepwater Horizon sank on April 22, severing the riser that connected the MODU to the Macondo wellhead, triggering the largest oil spill response operation in United States history, and declaration of the first “Spill of National Significance.” Rear Admiral Baumgartner detached from service as Chief Counsel to become 7th District Commander shortly after the explosion and the Deputy Judge Advocate General, Calvin M. Lederer, became Acting Judge Advocate General. He would serve in that capacity until January, 2011, when Rear Admiral Frederick J. Kenney became Judge Advocate General.
While the 8th District Staff Judge Advocate provided initial support to the Federal On-Scene Coordinator, a legal support structure drawing on CGJAG-wide resources quickly evolved that spanned operations at all levels of the response. Coast Guard attorneys deployed to the Incident Command Posts in Houma, Louisiana and Mobile, Alabama, and attorneys from the 7th District Staff Judge Advocate supported the Incident Command Post in Miami. A legal staff, typically numbering five attorneys, supported the Unified Area Command, with the legal advisor seated literally at the right hand of the FOSC while the UAC operated in Robert Louisiana in the first several weeks of the response.
Legal advisors were also assigned to Admiral Thad Allen, the National Incident Commander. The Judge Advocate General, the Legal Service Command, and other offices provided support in depth to deployed attorneys. Coast Guard attorneys advised the NIC and FOSC regarding their authorities under the Oil Pollution and the Clean Water Acts, and on a wide range of novel issues, including the decision to direct BP to fund the construction of $360 million of barrier islands, protection of endangered species including sea turtles and other marine life, air quality monitoring relating to in situ burns, worker safety for responders on the beach and in wetlands, public safety, and international implications of the spill. Increasing response assets in the Gulf led to development of an expedited process to waive the “Jones Act”, which limits coastwise trade to U.S.-flagged vessels, to introduce additional response vessels, and promulgation in ten days of an emergency regulation reducing response requirements in other part of the United States to permit the movement of oil skimmers. Coast Guard attorneys were active on Capitol Hill, briefing members and staffs, and led drafting and advocacy of legislation to ensure adequate funding for the response, increasing draws on the Oil Spill Liability Emergency Fund and lifting the cap on funding to $1.5 billion.
In the first week of the response, the Judge Advocate General drafted the charter for a joint Minerals Management Service (which later became the Bureau for Ocean Energy Management, Regulations, and Enforcement) and Coast Guard investigation into the disaster. A Coast Guard judge advocate was later detailed to board of investigation and would play a key role in authoring the Coast Guard’s findings. Coast Guard lawyers were also detailed to a Department of Justice criminal investigation and the Coast Guard’s Incident Specific Preparedness Review.
Under the leadership of then-Captain Kenney, the Coast Guard joined the Environmental Protection Agency in referred for litigation claims for judicial civil penalties against the responsible parties. Coast Guard counsel were intimately engaged in the litigation from drafting the complaint, managing discovery, and preparing for settlement discussions and trial. Throughout the response, CGJAG response documentation specialists preserved response documentation and later established a Central Archive for digital and printed data.
Judge Advocates played other significant roles in the response. In the early days, Captain David Nichols, 8th District Staff Judge Advocate, served as the first chief of staff for the UAC. Captain Steven Poulin, Mobile Sector Commander, served as the Incident Commander for the eastern part of the Gulf.
The last decade has seen increased focus on collaboration, integration, and professionalism among both attorneys and supporting professionals, as well as growth.
Increasing demands for legal services have resulted in numerous billets created by clients to support their operations.
Starting in 2002, competencies for those in legal yeoman positions were prescribed followed recently by revisions as well as competencies and standards for both yeoman personnel and paralegals. In 2005, the Coast Guard Professional Legal Responsibility Program published.
When Admiral Thad Allen became Commandant, he ordered a reexamination of Coast Guard missions and structure which ultimately resulted in reorganization of the mission support organizations and the creation of Deputy Commandants for Mission Support and Operations. In addition to the significant role played by CGJAG in proposing and drafting legislation to execute the reorganization and participation in the development of new policies, Rear Admiral Baumgartner led a reexamination of the delivery of legal services. The result was a number of changes in organization and policy.
When the Maintenance and Logistics Commands in Norfolk and Alameda were disestablished, the two large legal offices supporting them were integrated into a new bi-coastal Legal Service Command, commanded initially by Captain Beth Pepper. The Legal Service Command was the first new unit commissioned during the “Modernization” effort. Organic Staff Judge Advocates were established for the first time for both Atlantic and Pacific Areas and for the 5th and 11th Coast Guard Districts.
With the growth of CGJAG and the increasing demand for legal services, increasing collaboration and integrating judge advocates and civilian counsel was a high priority for both Rear Admiral Baumgartner and his successor Rear Admiral Kenney. In 2009, the Leadership Council approved Judge Advocate General oversight of legal billets. In August, 2009, the Vice Commandant approved the Judge Advocate General serving as reviewer on all Staff Judge Advocate officer evaluation reports and that a lawyer participate in the evaluation of all lawyers. In May, 2011, the Assistant Commandant for Human Resources agreed that the Judge Advocate General would propose and finally approve judge advocate assignments, recognizing that Coast Guard judge advocates are unique among the rest of the officer corps in the respect that law is the only specialist where the assignment of officers is government buy statute, not policy.
These structural changes implement the foundational PRINCIPLES FOR THE DELIVERY OF COAST GUARD LEGAL SERVICES, first published in 2010:
Coast Guard Law Today
Judge advocates have routinely deployed in support of homeland security contingencies, including hurricanes and national special security events. They have deployed to Iraq and Afghanistan. They have been assigned to the Department of State and the Department of Justice. Judge advocates have served on the Joint Chiefs of Staff and today serve in AFRICOM, NORTHCOM, and SOUTHCOM. Judge advocates and civilian counsel continue their involvement in international and maritime law, leading initiatives to counter piracy, ensure environmental protection, and secure the maritime transportation system. They also expertly practice across the full spectrum of legal specialties that support Coast Guard missions and support. Judge Advocates and civilian counsel, and those who support them, can be found at every echelon and their efforts are reflected every day in mission success.