Inspector General
Department of Defense
400 Army Navy Drive
Arlington, Virginia 22202-4707
ACTION MEMO
June 28, 2004
FOR: AIG, OFFICE OF COMMUNICATION AND CONGRESSIONAL LIAISON
FROM: (Redacted official), Jr., Director Defense Hotline
SUBJECT: Response to Chairman of the Total Force Subcommittee, House Armed Services Committee
Attached for your signature are a response to the Chairman, Total Force Subcommittee, and referral memorandum to the Navy Judge Advocate General (TAB A).
In a facsimile dated February 23, 2004 (TAB B), Ms. Lynn W. Henselman, Subcommittee staffer (and IG DoD employee), forwarded more correspondence from Mr. Norbert Basil MacLean III, the complaintant in Hotline case number 88736 (TAB C). Based on the response received from the Navy Judge Advocate General (JAG) (TAB D), the Hotline (With OGC coordination) responded to Mr. MacLean on November 21, 2003 (TAB E). At that time, we advised Mr. MacLean that further inquiry into his Article 32 illegal subpoenas issues was not warranted because it was among several issues he was pursing before the Navy-Marine Corps Court of Criminal Appeals (NMCCA) in MacLean v. United States, case number 9202821. On December 22, 2003, the NMCCA issued an opinion that denied Mr. MacLean's petition; however, the NMCCA opinion did not specifically address the alleged illegal subpoenas, and Mr. MacLean continues to focus on this matter.
There is no question that the UCMJ Article 32 pretrial investigations lack authority to compel production of civilian witnesses, records, or documents by means of subpoenas. We contacted the Navy JAG, and determined they had not provided a response to Mr. MacLean, or his attorney, subsequent to the White House Counsel's referral over on January 23, 2004 (TAB F). Under the provision of 32 CFR part 776 (TAB G), the issue is one of "professional responsibility" that needs to be addressed by the Navy JAG directly.
RECOMMENDATION: AIG, OCCL sign letter and referral memorandum at TAB A.