REPORT OF THE JUDGE ADVOCATE GENERAL OF THE UNITED STATES COAST GUARD PRESENTED TO THE AMERICAN BAR ASSOCIATION San Francisco, CA August 2010 THE UNITED STATES COAST GUARD From its beginning, the United States has been a maritime nation, tied to the seas for security, commerce, and resources. To sustain its strength, America must protect its maritime borders from unlawful intrusion and uphold its maritime sovereignty, ensure the safe passage of cargoes and people and rescue those in distress, and prevent the misuse of the oceans and preserve its marine resources for future generations. The Coast Guard’s value to America is in executing its roles of maritime safety, security, and stewardship. These roles are enduring, long-standing responsibilities, assigned to the Coast Guard over time since it was established in 1790: Maritime Safety: The Coast Guard ensures safe operation of the Marine Transportation System and protects the lives and safety of those on the sea; it responds to maritime disasters, natural or man made, to protect lives and ensure safety in United States communities. Maritime Security: The Coast Guard protects the United States maritime domain and the Marine Transportation System, and denies their use and exploitation by terrorists as a means for attacks on United States territory, population, vessels, and critical infrastructure; it upholds United States maritime sovereignty and enforces United States law, international conventions, and treaties against criminal activities, including halting the flow of illegal drugs, aliens, and contraband, and illegal fishing in our Exclusive Economic Zone; and it defends United States national interests in the maritime domain against hostile acts through military action. Maritime Stewardship: The Coast Guard facilitates the economical movement of goods and people through the Marine Transportation System and maximizes access for recreational boating activity; it safeguards U.S. marine resources, threatened and endangered species, and the ocean from unlawful acts and environmental degradation; and it conducts maritime recovery operations in the aftermath of incidents of national significance, including transportation security incidents, to ensure the continuity of commerce and other critical port and waterway functions. Today, the Coast Guard is a military, multi-mission, maritime force within the Department of Homeland Security. It is one of the armed forces, a law-enforcement and regulatory authority, a member of the U.S. Intelligence Community, and a collaborative response partner with federal, state, and local agencies. The Coast Guard conducts a number of distinct yet complementary missions in the maritime domain to fulfill its maritime safety, security, and stewardship roles—search and rescue; marine safety; drug interdiction; migrant interdiction; defense readiness; ports, waterways and coastal security, protection of living marine resources, marine environmental protection, and other law enforcement, including protection of fisheries. Its key strengths are broad authorities and an expansive network of partnerships; flexible, adaptable operational capability and presence that allow it to meet all threats and all hazards; and access and relevant expertise within the international community. Missions are executed by shore-based multi-mission forces assigned to 35 sectors in 9 Coast 2 Guard Districts; surface and air maritime patrol and interdiction forces, both surface and air, that range thousands of miles beyond our shores; and specialized deployable forces that include the Maritime Security Response Team and Maritime Safety and Security Teams designed to respond to terrorist threats; Port Security Units intended to support deployed DoD organizations; Law Enforcement Detachments that deploy on board United States and partner country naval vessels to provide independent, flexible, law enforcement capability; and the National Strike Force that responds to pollution and hazardous substance incidents. 3 DEEPWATER HORIZON: COAST GUARD ATTORNEYS RESPOND On the evening of April 20, 2010, the Transocean-owned, BP chartered, Marshall Islands-flagged Mobile Offshore Drilling Unit, located approximately 72 miles Southeast of Venice, Louisiana, reported an explosion and fire onboard. After an intense Search and Rescue, led by the Coast Guard, where 115 of the 126 crewmembers were saved, it became apparent that significant amounts of oil were being discharged into the Gulf of Mexico. This began the largest and most enduring oil spill response operation in United States history. The Coast Guard quickly appointed a Federal On-Scene Coordinator (FOSC) and National Incident Commander (NIC) to direct and coordinate the complex response to this Spill of National Significance. Coast Guard and Department of Homeland Security attorneys were involved from the outset and continue to be involved in every aspect of the response at the local, state, regional and national level in support of the FOSC and the NIC. Involvement in the response. Coast Guard attorneys are assigned to provide direct legal advice to the FOSC and the NIC. Additionally, Coast Guard attorneys are assigned to the Incident Command Posts in Houma, Louisiana and Mobile, Alabama where they provide advice to their respective Incident Commanders. Other attorneys are supporting the Incident Command Post in Miami as well as other response elements. Attorneys supporintg the response, whether at home station or deployed, are available 24/7 and are comprised of both active duty and reserve judge advocates and civilian counsel. Coast Guard attorneys are involved in all critical decisions related to the response at all levels. Enabling Operations. Coast Guard attorneys have and continue to provide key operational advice. For example, Coast Guard attorneys advised the NIC and FOSC regarding their authorities under the Oil Pollution and the Clean Water Acts, leading to directives to BP to fund a berm project around several barrier islands off the coast of Louisiana, to fund a $360 million project to create wetlands for migratory birds, to develop redundancies to capture discharged oil in the event of severe weather, and to limit their use of dispersants. Interagency Coordination. Coast Guard attorneys have been the focal point for many interagency legal issues. For example, Coast Guard attorneys negotiated memorandums of understanding with the Environmental Protection Agency regarding air quality monitoring, with the Department of Labor regarding response worker safety, and with Health and Human Services regarding public safety. Compensation & Claims. Coast Guard attorneys have been critical participants in implementing the “polluter pays” principle underlying the Oil Pollution Act of 1990 in 4 this response. They have participated in ensuring effective and efficient funding of federal, state, local, and tribal response activities; payment of claims of individuals and businesses harmed by the event; and billing of responsible parties for these expenses. Vessel & Navigation Management. Coast Guard attorneys, with the assistance of Maritime Administration and Customs and Border Protection attorneys developed an expedited process to handle requests for waiver of the “Jones Act” which limits coastwise trade to U.S.-flagged vessels. This resulted in seven vessels involved in source control operations to be granted Jones Act waivers by the Secretary of Homeland Security. Congressional Affairs. Coast Guard attorneys have been actively involved in drafting and commenting on legislation, and responding to Congressional inquiries about the response. Coast Guard attorneys have drafted and reviewed over 400 responses to Congressional questions related to response authorities. Coast Guard attorneys have also briefed members and staffs on a variety issues, such as the Jones Act, the Oil Pollution Act of 1990, and the National Oil and Hazardous Substance Pollution Contingency Plan. International Issues. Coast Guard attorneys took lead role in drafting a position paper on the legal ramifications of oil impacting Cuba and/or Mexico. A Coast Guard attorney participated in a State Department brief to Cuban officials on the potential impact. Coast Guard attorneys also actively participated in developing a process for coordinating the influx of foreign offers of assistance. Freedom of Information Act (FOIA) requests. In response to a large number of Deepwater Horizon FOIA requests, Coast Guard attorneys developed extensive protocols. Efforts led to a FOIA cells being created on the NIC staff, as well as at the Unified Area Command. Deepwater Horizon Litigation. Recognizing the likelihood of litigation, Coast Guard attorneys prepared written and oral guidance and coordinated with Information Technology personnel to ensure that responders understood the requirements to preserve both electronic and paper documents of all types. Deployed Coast Guard documentation specialists have also monitored and managed response documentation activities in the field. The Animal Welfare Fund, the Center for Biological Diversity, the Turtle Restoration Network, and the Animal Legal Defense Fund filed a request for a temporary restraining order in the U.S. District Court for the Eastern District of Louisiana to halt in-situ burning.. The plaintiff claimed response efforts were damaging to sea turtles that were allegedly caught in the burn area. Coast Guard attorneys drafted an affidavit for the FOSC and assisted Department of Justice (DOJ) in responding to the TRO petition. Prior to the hearing, plaintiff groups requested a delay and reached an interim agreement that would allow the parties to review existing best management practices and suggest possible changes. Subsequently, Coast Guard attorneys assisted the DOJ in drafting a Motion to Dismiss (Motion to Dismiss still is pending). 5 In another case, the Center for Biological Diversity filed a Notice of Intent to Sue the CG and US EPA. The notice, dated 2 June, alleged violations of the Endangered Species Act related to the approval and use of chemical dispersants. Coast Guard has been engaged in emergency consultation with Environmental Protection Agency (codefendants) as well as Fish and Wildlife Service and National Marine Fisheries Service. The 60 day notice period will toll in early August. Military Justice. Given the number of responders at the area command and incident command posts, processes were established to handle military justice matters. Coast Guard attorneys drafted and distributed reminders to members in the area highlighting the importance of upholding the service’s standard of conduct and reinforcing military discipline concepts. Investigations. Numerous inquiries have been undertaken into causes and effects, including a investigation convened jointly by the Department of Homeland Security and the Department of Interior. This investigation, authorized by the Outer Continental Shelf Lands Act, and conducted by the Coast Guard and the Bureau of Ocean Exploration Management, Regulation, and Enforcement, is following the model of the Coast Guard’s marine board of investigation. A judge advocate is fully integrated in the investigation as legal advisor to the investigation. Other Coast Guard attorneys are supporting him, and providing other support to the numerous other inquiries underway. 6 THE COAST GUARD LEGAL PROGRAM The mission of the Coast Guard Legal Program is to deliver high-quality legal advice and support to the people who carry out the varied functions of the Coast Guard to ensure their missions, operations and activities can be achieved within the spirit, as well as the letter, of the law. Coast Guard legal services are provided by 253 attorneys (59% Judge Advocates and 41% civil service attorneys); 92 paralegals, legal technicians, and other support staff; and 37 Coast Guard Reservists. Coast Guard legal professionals are located in 13 offices and staffs of the Judge Advocate General at Coast Guard Headquarters in Washington, D.C., and in 20 legal offices at major Coast Guard units. Judge Advocates rotate through non- legal operational and staff assignments and several have deployed in support of Operation Iraqi Freedom & Operation Enduring Freedom. Currently two Judge Advocates are serving as Flag Officers and a third has been selected for Flag rank. The Judge Advocate General is a Flag Officer normally, although the Deputy Judge Advocate General, a member of the Senior Executive Service, is currently acting. The Legal Program has three distinct organizational groups: ♦ Judge Advocate General. Offices and special staffs in the office of the Judge Advocate General exercise program oversight over activities within their practice areas. The Coast Guard Hearing Office adjudicates civil penalties for maritime safety and environmental violations. In addition, there are military attorneys assigned to the Department of Homeland Security and other government agencies. These include: Department of Justice, Department of State, and Department of Defense (U.S. Northern Command, U.S. Africa Command, Joint Interagency Task Force South, Naval Justice School, Naval War College, Defense Institute of International Legal Studies, and the Army Center for Law and Military Operations). 7 Field Legal Offices & Staffs. Military and civilian attorneys are assigned to every Flag operational command, including the Atlantic and Pacific Areas located in Portsmouth andAlameda and the Coast Guard’s nine Districts(Boston, Portsmouth, Miami, New Orleans, Cleveland, Alameda, Seattle, Honolulu, and Juneau). Staff judgeadvocates or other counsel support the Coast Guard Academy, Training Center Yorktown, Training Center Cape May, Training Center Petaluma, the National Pollution Funds Center, Personnel Service Center, Pay & Personnel Center (Topeka), and the Research & Development Center, These staffs and counsel report to the local commander but are under the technical supervision of the Judge Advocate General. The bi-coastal Legal Service Command, with elements in Norfolk and Alameda, reporting to the Deputy Judge Advocate General, supports the mission support community and support in depth to all other Coast Guard Judge Advocate General activities, particularly in specialized practice areas, like environment and real property, procurement, and civilian personnel. For additional information, http://www.uscg.mil/legal/ provides public access to materials including opinions of the Coast Guard Court of Criminal Appeals (http://www.uscg.mil/legal/cca/), and the Coast Guard Legal Assistance Web Portal (http://www.uscg.mil/legal/la/). Recruiting information is at: http://www.uscg.mil/legal/recruit/dclinterinfo.htm. 8 THE PRACTICE OF LAW IN THE COAST GUARD Core Competencies To accomplish our mission of providing the highest quality legal services and support to the activities and people of the Coast Guard, the Coast Guard Legal Program is committed to master, and fully develop, the following core competencies: Legal Knowledge. To master the law. Ethics & Professional Responsibility. To uphold the highest professional ethical standards of the legal profession. Responsiveness. To provide legal services and counsel in the right place, at the right time. Advocacy. To zealously and skillfully represent our clients, effectively countering challenges to lawful Coast Guard operations and activities. Client Relationships. To partner with Coast Guard decision-makers at all levels, understanding their business, giving them the legal capabilities they need to get their jobs done. Leadership. To develop those skills needed to be leaders in the world’s premier maritime service. Technology. To expertly use technology tools to deliver legal services to Coast Guard leaders and people wherever they need them. Coast Guard Practice Areas The Coast Guard Legal Program is a “full-service” legal support organization, providing legal advice and counsel for any and all requirements that the service’s decision makers place on us. This is done within nine general legal practice areas: ♦ Military Justice As an armed force, members of the Coast Guard are subject to the Uniform Code of Military Justice. Coast Guard judge advocates serve as defense counsel and prosecutors for courts-martial and as military judges. Judge advocates assigned as appellate government and defense counsel brief and argue cases before the Coast Guard Court of 9 Criminal Appeals, the Court of Appeals for the Armed Forces, and the U.S. Supreme Court. Coast Guard attorneys at field offices serve as Staff Judge Advocates providing advice on military criminal matters to field commanders. Courts-martial and Nonjudicial Punishment. 2010* 2009 2008 2007 2006 General Courts-Martial 12 12 13 16 16 Special Courts-Martial 18 19 19 24 32 Summary Courts-Martial 6 14 28 31 31 Total Courts-Martial 36 45 60 71 79 Nonjudicial Punishment 888 1,052 1,395 1,437 1,442 *As of 1 July 2010 Appellate Activity. As of July 1, 2010, the Coast Guard Court of Criminal Appeals issued 20 opinions in Fiscal Year 2010. The Court is composed of 1 full-time and 5 collateral-duty appellate judges. The full time judge is the Chief Judge and lone civilian on the Court at present. LCDR Jowcol Vina and LCDR Marc Zlomek (on the left of the picture) served six months tours with the USF-I SJA in 2009-2010 10