The ship was in danger, but the crew didn’t know it. They had regular meals. The guns were manned. The watertight doors were closed. The routine of drills was conducted on schedule. But the captain didn’t know where the ship was. No navigating personnel had been assigned. The sun sights had not been made by day, nor the star sights by night. No dead-reckoning course had been placed on the chart. No landfalls had been made. If only the ship’s position were known, the commander could set a proper course to his destination.
No one, you say, would allow a ship to sail without a navigator. But the Navy today is sailing the seven seas without having made adequate provision for legal navigation. Legal rocks and shoals threaten us at every change of course. Where are we, legally? If only our position were known, the commanders could set a proper course.
The pre-war Navy legal system.—The Navy Department had no official legal adviser prior to 1864, when the Secretary of the Navy appointed a civilian as Solicitor. A year later, Congress established the Office of the Solicitor and Naval Judge Advocate General for the temporary purpose of clearing up legal matters relating to the War between the States. After six years, the office was transferred to the Department of Justice, and in 1878 it was abolished. The Secretary of the Navy then appointed a naval officer as Acting Judge Advocate, and two years later Congress created the present Office of the Judge Advocate General of the Navy. This was the only legal office in the Navy Department until 1908 when Congress provided for an Office of the Solicitor to deal with matters of commercial law. These separate offices were maintained until 1921, when the Solicitor’s office was merged with the Office of the Judge Advocate General. The Judge Advocate General, however, was not required to be a lawyer, and, prior to 1938, the incumbents of that office did not hold a law degree.
Prior to our entry into the present war, nearly all matters of law relating to the Navy came under the cognizance of the Judge Advocate General of the Navy. The legal business came under the headings of military law, admiralty, international law, legislative matters, contracts, real estate, patents, and administrative matters of legal significance. A small law library was maintained. The lawyers employed to carry on this business consisted of about 22 civilian attorneys of the civil service and 23 naval officers. Of the officers, some 10 or 12 were students whose part-time services were utilized.
The system for procuring naval officer lawyers began with the selection each year of three or four naval officers and of one marine officer for postgraduate instruction in law. The selection was made from applicants who had been in the service seven years or more. Those selected were sent to a civilian law school, generally one in Washington, D. C. Their tuition was paid by the government. Classes in both night school and day school were utilized. During Navy Department office hours, the students were employed in the routine legal work of the office of the Judge Advocate General, with permission to be absent from their assignments there during periods when attendance at school classes was required. The course was of three years’ duration, at the end of which the law student normally won his law degree. He was then ordered to sea or foreign duty, which, more often than not, had no relation to his legal training.
Some of the officer law graduates never returned to legal duties. Others, after a two or three years’ cruise at sea, came back for a tour of shore duty in the office of the Judge Advocate General. Of these, a few, after another cruise at sea, returned for a second tour as graduate lawyers, becoming section or division chiefs in the office of the Judge Advocate General. Considerable brushing up on the law was often necessary for these officers, since their legal education had no continuity. They were definitely part-time lawyers. The system was deliberate, based upon the Navy’s policy of rotation of line officers with the mission of giving them experience in every type of duty on board ship. It had the effect of making the average naval officer a jack-of-all-trades and an expert in none. Navy tradition considered this desirable.
Some of the civilian attorneys and a couple of naval officers in the Judge Advocate General’s office were engaged in commercial law. They were concerned principally with checking the legal forms prescribed, and had little contact with the business men who dealt with the Navy. To provide the scope of the legal services they required, the technical bureaus employed small staffs of their own civilian attorneys.
This was the situation when the Navy began to expand during the pre-war emergency period, and was still the situation when our country went to war following Pearl Harbor.
How the Navy met wartime legal problems.— It was soon evident that the old peacetime legal procedures were not effective in handling either the mushrooming procurement program or the disciplinary measures of the expanding naval population.
Congress granted first an 11 per cent expansion in the number of Navy ships, then a 70 per cent expansion. It authorized negotiation of contracts to replace the slow and cumbersome competitive-bid contracts. The number and dollar-value of Navy contracts jumped enormously. The number of other legal problems increased in proportion.
There were about 100,000 people in the peacetime Navy. The number rapidly increased to a total of well over 3,000,000. While the percentage of the population tried by court-martial was fairly constant, the number of cases which had to be reviewed by the Judge Advocate General tremendously increased.
The Judge Advocate General needed help. He needed an increase of legally trained personnel, and he needed a reorganization of his procedures. To accomplish the latter, he had to have the former. He had 8 officers and 7 civilian attorneys working on contracts alone. But the Navy was making about 3,500 contracts with a total dollar value of about 1,200 million dollars every month. The Judge Advocate General’s office could not and did not give to all of these the careful legal scrutiny they deserved. Some contracts which called for payment for rights to which the government was entitled without charge went unchallenged. Some contracts were signed and executed without being referred to the Judge Advocate General. Many of those which were subjected to scrutiny caused criticism for the delay entailed. The technical bureaus began to do more of their own legal work. By the time the war was a year old, these bureaus had 30 law-trained officers and 25 civilian attorneys working directly for them.
In peacetime, the Judge Advocate General had 3 officers to review the 625 courts- martial records which arrived each month. When war came, he had 10 officers reviewing the monthly 1,400 cases. The monthly average jumped to 6,300 in 1942, to 11,200 in 1943. At the peak of our naval strength, there were around 20,000 cases per month. To review these, there were 24 officers available. The work load was unbelievable.
Where were the officers who had been given the postgraduate course in law? There were 56 naval officers and 19 marine officers when war came. Of these, 27 were at sea, 9 at outlying stations, and 24 on nonlegal jobs in the United States. Only 15 were available to the Judge Advocate General. It must be remembered that all these officers were, as a rule, carefully selected before they were given postgraduate instruction. Many applied but few were chosen. When war came, the very qualities which influenced their selection for special training were the ones in great demand in our combatant forces. As the war wore on, more and more of these officers were to be found in responsible positions at the fighting front. Thus the Judge Advocate General could depend less and less upon the very officers who were trained in his department.
The result was a tendency in the Navy Department to curtail the jurisdiction and functions of the office of the Judge Advocate General. In May, 1942, insurance matters were transferred to the Office of Procurement and Material. In July, legal cognizance over real estate was made a function of the Bureau of Yards and Docks. In December, 1942, came the most sweeping change of all. The Secretary of the Navy set up an Office of the General Counsel, and gave to it jurisdiction over contracts. The Navy was big business in the procurement field, and the new office was to establish and regulate policies and to centralize control in that field. The office was staffed with high-priced, non-civil service, civilian attorneys with experience in big business commercial law. During 1944, the Judge Advocate General lost control of the administration of naval prisons and prisoners, the processing and approving of Supply Corps and mail clerk bonds, and, finally, of cognizance of patent law matters.
Post-war choices.—The Navy is faced with a choice of three alternatives in making its post-war legal plan. It must be assumed that all legal matters will again come under the jurisdiction of the Judge Advocate General, this time, we hope, along with the power and the tools necessary to the discharge of his responsibilities. As the Navy shrinks to a proper peacetime size, it is natural that legal as well as other functions will tend toward centralization in organization. To carry on the Navy’s business in peacetime, and to prevent a repetition of the failure to cope with sudden wartime expansion, the Navy may choose either (1) a return to the prewar system, (2) the establishment of a law corps, or (3) the designation of qualified officers for law duty only.
Return to pre-war system.—The Navy can return to the pre-war system of depending upon naval officers who are part-time lawyers and a scattering of civilian attorneys. The Bureau of Naval Personnel, west coast naval districts, and about half of the east coast and naval districts favor this. They believe, in general, that a somewhat larger percentage of officers should be given post graduate instruction in law, and that for other than military law civilian attorneys should be employed. The arguments advanced in favor of the pre-war system were:
(1) Naval tradition and experience is more important than legal knowledge.
(2) All naval officers arc presumed to know sufficient military law to handle naval courts and other disciplinary matters.
(3) Courts-martial are not complicated and would not take an officer’s full time.
(4) Our policy should be to lean away from further corps specialization in peacetime.
(5) Exclusive law duty would be a handicap to the officers themselves.
(6) The ability of jack-of-all-trades naval officers has been largely responsible for the success of the Navy during the present war.
(7) A corps of legal specialists would defeat the purpose of making a commanding officer wholly responsible for the discipline of his command.
The Marine Corps contemplates the use for legal duties in peacetime of general duty officers only.
Those opposed to a reversion to the prewar system point out that:
(1) The system proved a failure during the present war.
(2) Jack-of-all-trades law officers do not have any specialized knowledge of commercial law or of legislative matters.
(3) The system provides no way of furnishing the number of law officers needed in essential legal positions in peace or war.
Law corps.—The Navy can activate a law corps, the members of which would all be naval officers trained in law, and whose primary duties would be legal duties. The Assistant Secretary of the Navy (who was previously the Navy’s general counsel) believes that proficiency in law requires fulltime devotion to that duty, and that it cannot be obtained on a part-time basis. He sees no more reason against a law corps than against a medical corps. He believes that even further specialization is required, and that a law officer should devote himself either to military law or to commercial law. If this segregation is not practicable, then he suggests that the commercial work will have to be done by civilians or reservists. The Navy, he says, is big business and cannot afford to be on an inferior plane in its legal guidance.
Half of the east coast naval districts, and many smaller establishments favor a law corps, voicing a need for all judge advocates and defense counsel to be full-time members of such a corps. They point out that mere postgraduate study of law never made a man a lawyer, and that there is no substitute for experience in that field. Such experience cannot be gained by dealing with legal matters spasmodically between long tours of nonlegal duty. Many erroneous rulings and miscarriages of justice would be avoided, they say, by having a separate law corps. And, they add, officers who do legal work should be assured proper promotion in due course. A law corps would provide this assurance.
Specific factors in favor of a law corps were given as follows:
(1) It would provide an adequate number of qualified officers to fill essential legal positions by requiring less sea duty than is required of general duty line officers.
(2) It would provide professional law officers for military law billets, and specialists for commercial and legislative fields.
(3) It would give to the Judge Advocate General not only the responsibility for legal matters, but some control over the education, training, assignment, and promotion of law officers.
(4) It would provide uniformity and continuity in legal policies.
(5) It would make available a law-trained nucleus from which expansion to wartime needs could be made without dislocation or confusion.
Those who oppose a law corps say that:
(1) Naval law officers would soon lose their understanding of the Navy’s problems.
(2) Law officers at sea and in the field would not find full-time employment on legal duties.
(3) A law corps would not attract law-trained naval officers now in service because their opportunities for command would be forfeited and their chances to achieve flag rank diminished.
LDO system.—The Navy could assign qualified officers to legal duty only, in the same manner as is now done for engineering duty only. There are very few supporters for this choice. They say of the LDO system that:
(1) It would be a quasi-law corps—a halfway measure.
(2) The LDO tag would attract even fewer officers than membership in a law corps.
(3) It carries some advantages of a law corps but without the integration and control of a law corps.
Those who oppose establishment of a law corps also oppose the LDO system for the same reasons.
A law corps is the best choice.—It is submitted that the establishment of a law corps in the Navy is the best solution. Its advantages far outweigh its disadvantages. The objection that law officers would lose understanding of the Navy’s problems can be met by the adoption of two rules. First, every law officer must serve at least one year of every five years either at sea or at large shore stations outside of Washington. Second, the primary legal duty of law officers may be supplemented, outside of Washington, by a secondary duty in any field in which they might be qualified, such as staff secretary, communications, shore patrol, war plans, etc. This second rule also answers the objection that an officer cannot find full-time legal employment outside the Judge Advocate General’s office. The law corps of the Army, which has been functioning satisfactorily for years, has adopted similar rules.
The contention that a law corps would not attract legally trained naval officers now in service is yet to be proved. At the end of this war there were 77 regular naval officers (including Marines) who are law graduates. They are all Navy captains or Marine colonels or above. Those who are Naval Academy graduates range from the class of 1909 to the class of 1926. The reason there are no junior officers in this group is that upon the advent of war the postgraduate course in law was discontinued. All regular officers, including most of those who had completed the course, were needed at sea and at the fighting front. Many of them have just returned from two to four years of hard, active duty in the maw of war. A good percentage of them might welcome the chance to specialize further in their chosen avocation.
Besides, there were 12,266 reserve officers who held law degrees. Only a few of them have performed legal functions in the service. They have done all the varied duties of naval officers—from taking inventory of swabs to commanding our combatant ships —and have done them well. They have been on active duty from 2 to 4 years under intensive conditions, and they have met the Navy’s problems face to face. The majority of them are now between 25 and 35 years of age. Many of them would probably welcome a legal career in the Navy. Many who are determined to practice law after the war would not remain in the Navy unless it had a law corps. The Navy needs these officers.
To carry on post-war legal business the Navy will need 500 lawyers, of whom about 30 will be civilian attorneys. The remainder should be law officers. These officers of the law corps would initially be selected from the qualified applicants, regulars and reserves. Each year, from applicants with four years’ service an additional 15 would be selected for transfer to the law corps. Supplementary legal training would be given as necessary. Law officers who showed aptitude in commercial law might be detailed for a tour of legal duty in the offices of large commercial law firms, such duty to embrace not more than one year of each five-year period. The Navy’s own specialists might thereby be produced. Promotion would be on the basis of legal ability, and not in competition with line officers. Opportunity to be Judge Advocate General or Assistant Judge Advocate General (officers of flag rank) would be afforded every member of the law corps.
This system should appeal to prospective law corps members because of the opportunity to become experts in their vocation. It should appeal to line officers because of the promise it holds of giving them professional legal advice when they need it. It should appeal to all who have the interests of the Navy itself at heart because of the assurance it gives of meeting adequately the legal turmoil of the next war.
Has someone a better plan?