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The General Counsel of the Department of the Air Force
IN THE JET STREAM... A HISTORY
The United States Air Force was created on September 18, 1947. One week later, the first Secretary of the Air Force appointed Brackley Shaw as General Counsel of the Air Force and subsequently designated that position as the "final authority on all legal questions arising within or referred to the Department of the Air Force," by memorandum dated August 30, 1948. Since that time, the General Counsel has played a critical role in the historic development of the Air Force as the dominant air, space - and now cyberspace - world power.
The press of world events, the complexity of technology and the increasingly challenging legal environment have grown an office with fewer than 10 attorneys into seven divisions staffed by more than 95 civilian and military attorneys, paralegals and administrators. They serve at a variety of locations in the United States and abroad, providing unmatched expertise in international, space, acquisition, intelligence, national security, environmental, real estate, military and civilian personnel, ethics, fiscal, intellectual property, dispute resolution, and contractor responsibility law.
Twenty one General Counsels have presided over an office that guided the Air Force through a dynamically changing environment, beginning with the transition from a corps of the Army to an independent service. The first attorneys faced the challenges of the post WWII era helping to reshape a war-time air service--most of whose members were transitioning quickly to civilian life--into a sustainable air power. At its inception, the Air Force had no people (other than the Secretary), no property, and no specific functions. As Mr. Shaw, the first General Counsel, observed of this fledgling force, the Air Force was "clothed with very little except a full set of vexatious legal problems."
Those charged with defending the hard-won peace needed everything, literally, and at the top of the list were aircraft. The General Counsel's attorneys and staff played a pivotal role in meeting these needs through the new Armed Services Procurement Act of 1947, which Mr. Shaw described as "a milestone in the history of military procurement." As the new Air Force addressed aircraft basing challenges, several legal areas were of transcendent importance to Airmen, including international law, the legal interfaces with civil aviation, and real estate transactions, and the attorneys of the General Counsel's Office provided the needed insights.
Protecting military secrets was critical to our operators in the Department's early days, as is still the case, and the General Counsel developed the legal framework for the "military and state secrets privilege" in 1953. This legal principle retains vitality to the present day, being employed as recently as 2007 to protect the viability of stealth technology.
In the legal and geopolitical morass of the Korean War, General Counsel attorneys served on the Air Force varsity team that introduced air superiority jet fighters to that conflict, ultimately wresting victory from seemingly foreordained defeat.
The operational Air Force quickly achieved such air dominance that no United States soldier has been lost to hostile air power since 1953. At every turn, General Counsel attorneys played a crucial part in putting the weapons in the hands of the operators who wielded them, from the B-36 and B-52, to the B-2, from the F-86 to the F-22, but also the intercontinental ballistic missiles, space launch vehicles, satellites, precision munitions and stealth weapons that have made and kept the peace.
Indeed, the very operators themselves were the result, in a very real sense, of laws drafted and implemented with the efforts of General Counsel attorneys and paralegals. By the end of its first two years of existence, the General Counsel had played a key role in the transfer of military and civilian personnel from the Army to the Air Force. In the following decades, General Counsel attorneys continued to facilitate the entire life cycle of the people who were the heart-blood of the Air Force. Through a steady stream of personnel challenges--across the spectrum of recruitment, training, development, promotion, discharge and retirement--the Office of the General Counsel played a critical part. Two notable examples are found in the development and implementation of the Active and Reserve officer personnel management acts of the 1980s and 1990s, and the ongoing evolution of the Total Force Initiative. Through legislation, directives and legal opinions, we are achieving a more cohesive use of Active, Reserve and National Guard personnel than could have been imagined even five years ago.
Dating back to 1947, the attorneys and staff of the General Counsel's Office played a major role in the containment of Communism, through acquisition of overseas basing rights and construction of bases overseas. Across the decades, General Counsel activities were significant in support of NATO operations, Operations Desert Shield, Desert Storm, Bosnia-Herzegovina, Montenegro, Enduring Freedom and Iraqi Freedom. Recent examples of such support include the General Counsel attorneys' development of fiscal mechanisms for the construction and expansion of overseas facilities in the run-up to Operation Iraqi Freedom. International lawyers were instrumental in achieving legislative authority for unprecedented cooperation with other countries to monitor nuclear weapons testing, as well as to establish a first of its kind Air Warfare Center in the United Arab Emirates for critical coalition pilot training. They drafted and negotiated a legal framework with our friends and allies to train and fight together in the Global War on Terror. They were also instrumental in the development of foreign access rights, operating rights, basing rights, status of forces agreements, and other arrangements to facilitate worldwide aircraft operations and, at the same time, aggressively protected the sovereign immunity and free movement of Air Force aircraft. The continuing importance of the Office of the General Counsel in such matters was again affirmed in 2003 when the Secretary of the Air Force approved the establishment of a General Counsel international law office in Belgium.
Also reaching back to its early days, the Air Force has played an important part in creating a level playing field for all military members, beginning with President Truman's direction to the Army Air Corps to accept black Americans in aviation cadet training, following his desegregation order for the military in 1948. General Counsel attorneys have often been on the leading edge of our country's progress in protecting human rights, and in achieving an appropriate balance between the legitimate needs of the military and preservation of military members' individual rights. This responsibility was tested in the time of the Vietnam War over freedoms of speech and press. It arose again as the Air Force led in providing a fair competitive environment for women, generally, and in recurring gender and minority issues at the Air Force Academy and elsewhere. It has been addressed on a recurring basis in promotion contexts and in a wide variety of matters before the Air Force Board for the Correction of Military Records, and has most recently been challenged during development of guidelines for freedom of religious expression in the Air Force.
Essential to every operation is intelligence to know the mind of the enemy, and essential to every democracy is the protection of individual privacy. The General Counsel has helped keep that balance over the years with its involvement in the intelligence community, as a member of the Air Force Intelligence Oversight Panel, and in making intelligence oversight principles relevant and understandable in a world of constantly changing technology and missions.
As the Air Force established leadership in space, General Counsel attorneys were prominent in the development of domestic and international space law. Their participation in the convocations that charted the legal framework for space, and their counsel throughout the evolution of military activities related to space, literally pioneered this "last frontier." Their leadership went beyond the day-to-day needs of the Air Force to the creation of the first Conference on the Law and Policy Relating to National Security Activities in Outer Space in the mid-1980s, which has become the premier space law and policy conference in the world.
Similar leadership activities by General Counsel attorneys and staff include creation of the award-winning Air Force dispute resolution program, now including the Negotiation Center of Excellence, the creation of the Air Force Civilian Legal Personnel Development program (new in 2006), hosting of the annual Acquisition Law Conference and Intelligence Law Conference, and service on the Services Acquisition Reform Act panel.
Since 1978, the General Counsel has been the Chief Ethics Official for the Air Force, presiding over an award-winning ethics program and the Ethics Office. General Counsel attorneys have also pursued the most active and successful contractor responsibility program in the Department of Defense, encouraging, and enforcing ethical and responsible performance by companies and individual contractors alike. Their model program has resulted in positive changes in the corporate culture and suspension and debarment of companies when they failed to embrace needed change.
The outrages of September 11, 2001 had a profound impact on our nation, and this impact was felt by the General Counsel's attorneys and staff. From the first moments of the attacks, the General Counsel was represented in the Air Force command center, providing legal guidance for circumstances few imagined before. As the command center gradually filled with smoke from the attack on the Pentagon, the Secretary of the Air Force and the Chief of Staff, in consultation with the nation's leaders, made the decisions that sent interceptors in pursuit of U.S. airliners, provided air cover for the nation's cities and made provisions for military and civilian casualties. Over the following days and years, General Counsel attorneys were fully engaged in the legal issues challenging our constitutional framework including unlawful combatants, interrogations, military commissions, domestic intelligence, force protection, and information sharing between law enforcement and intelligence organizations. At the same time, unique weapons and tactics were needed to fight a new kind of enemy on unfamiliar battlefields. General Counsel attorneys assisted in working through the novel and complex legal issues associated with emerging technologies as instruments of power projection, from development and testing to deployment and employment of the systems.
As the Air Force found new challenges in Operation Noble Eagle to protect the skies over American cities, and as the Air Force went into Iraq, General Counsel attorneys and paralegals played a part in establishing the mechanisms to mobilize Active and Reserve forces and stop loss of critical skills. In the unclassified world and in the black world, General Counsel attorneys worked with operators, planners and engineers to find ways to deal with improvised explosive devices and insurgency, and to move what was needed to the warfighters.
Technology and innovation have been the essence of the Air Force and the Service has flown on the winds generated by an explosion of information. While that has been our strength, the very technology that empowers our nation offers our enemies opportunities to wreak havoc. From the earliest days of information operations, General Counsel attorneys have been part of the conceptual process intended to achieve the same degree of dominance in cyberspace that the Air Force has enjoyed in air and space. As the Secretary and the Chief of Staff have moved to establish a new Cyber Command to operationalize the concepts, General Counsel attorneys and staff have been part of the team making it happen.
Throughout this time, the Air Force has supported humanitarian needs, responded to disasters like Hurricane Katrina and tsunamis, and addressed a host of unexpected issues - from the transportation of killer whales, to space launches endangered by partner-nations misperceptions.
Each of the twenty-one General Counsels has had at least one thing in common - every day has brought the unexpected. From post World War II issues and the Korean War to the Global War on Terror, the Office of the General Counsel has been called upon to address an array of unprecedented and formidable legal issues, and generations of General Counsel personnel have met the challenge.