McCaskill Asks Committee Leadership to Protect IGs in Defense Authorization Bill

WASHINGTON, D.C. – U.S. Senator Claire McCaskill today urged the leaders of the Senate Armed Services Committee to take action to help preserve the independence of inspectors general (IG) at the Department of Defense. McCaskill, in a letter to Chairman Carl Levin and Ranking Member John McCain, requested that language guaranteeing IGs receive independent legal counsel be included in the Fiscal Year 2009 National Defense Authorization Act (NDAA). The committee leadership is preparing to release the legislation early this week and the full committee will begin debating and amending the bill on Wednesday. McCaskill has spent the last year pushing for new protections for IGs, including introducing comprehensive IG reform legislation. Her bipartisan reform bill, which included language requiring independent legal counsel for IGs, passed the Senate last week.

As you finalize your draft of the National Defense Authorization Act for Fiscal Year 2009, I am writing to urge you to an address the issue of independence for legal counsel at the Department of Defense, Office of Inspector General.

Soon after I began my tenure in the Senate last year, it was brought to my attention that some of our nation’s Inspectors General must rely on legal advice provided by counsel who work for the agency, as opposed to having independent counsel who answer to the Inspector General (IG), and thus who could be assured of being free from interference by the entity the Inspector General is charged with auditing and investigating.

While some Inspectors General were simply unable to hire their own counsel due to a lack of resources, I was dismayed to discover that the Department of Defense (DoD) IG did not have their own counsel. Rather, their legal counsel is part of the Department of Defense Legal Services Agency. The Department of Defense General Counsel must still agree on all hiring and firing decisions relating to these lawyers. Not only is such an arrangement unfair to the IG, it creates a dilemma for those lawyers who are forced to “serve two masters”, something which is impossible to do under legal ethical standards. Two of our finest independent watchdog groups, the Project on Government Oversight (POGO) and the Government Accountability Project (GAP) have long championed the need for independent legal advice for Inspectors General. It is my understanding that both have called for greater independence for counsel at the DoD IG.

As you may know, I have introduced two bills in the Senate to strengthen the Inspector General system. Both bills, S. 1723 and S. 2324, include a provision requiring every Inspector General to obtain legal advice from counsel reporting either directly to the Inspector General, or to another Inspector General. S. 2324, co-sponsored by Senators Lieberman and Collins, the Chairman and Ranking Member of the Senate Committee on Homeland Security and Government Affairs, the committee in which this legislation was fully considered, unanimously passed the Senate last week.

While I am hopeful that S. 2324 or the House version of the IG bill, which also provides for independent counsel, will become law this year, I feel that the issue of DoD IG legal counsel is too important to not address at every opportunity. I urge you to consider adding a provision to the National Defense Authorization Act for Fiscal Year 2009 directed specifically to the DoD IG consistent with the goals of the counsel provision in S. 2324. In this way, we can be doubly certain that we eliminate this conflict of interest and guarantee independent legal advice for one of our most important Inspectors General and government departments.