Department of Justice

Three former immigration judges have challenged the assertion by a Justice Department official that 3-year-olds and 4-year-olds can represent themselves in court and don't have a right to a lawyer in deportation proceedings, The Washington Post's Jerry Markon reports.

The judges made their argument in a brief filed with the U.S. Court of Appeals for the Ninth Circuit, which is hearing an appeal on whether immigrant children are entitled to taxpayer-funded attorneys. The judges wrote in their brief "'children are simply incapable of representing themselves in immigration proceedings. Absent effective representation for a child, it is impossible for anyone in an immigration court — including the Immigration Judge — to investigate and develop the child’s case to a degree that would permit the fair adjudication that due process requires,"' Markon reports.

The American Civil Liberties Union and other groups are trying to get the government to provide appointed counsel to every indigent child in immigration court proceedings, but the Justice Department is opposing their lawsuit.

Jack H. Weil,  an assistant chief immigration judge in the Justice Department office that sets and oversees policies for the nation’s 58 immigration courts, was offered as an expert witness in the lawsuit by the Justice Department. According to the Post, Weil said in a deposition in the lawsuit that "'I’ve taught immigration law literally to 3-year-olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.”'

Here is some interesting legal news from last month:

The U.S. Court of Appeals for the Ninth Circuit rebuked a Nevada district court judge for denying pro hac vice admission to Department of Justice lawyers based in Washington, D.C., The National Law Journal's Zoe Tillman reports.

Tillman reports that U.S. District Judge Robert Jones had concerns about the "'ethical commitments'" of out-of-state government lawyers, but the Ninth Circuit opined that "'generalized doubts about all government attorneys’ ethical commitments are not valid grounds for denying an individual attorney’s application for pro hac vice admission."'

Even though Jones reversed his previous order denying the the U.S. attorney permission to appear in USA V. USDC-NVR, the panel held that this did not render the controversy moot because it was reasonable to expect that Jones might issue such an order again.

The case was one of first impression.

The Justice Department has issued its first guidelines for the use of domestic drones by law enforcement, saying that the use of drones must not violate civil rights or the right to privacy, the Associated Press reports. The department said drones can't be used just to monitor protests and other activities protected by the constitution.

The California Indian Law Association has filed a Freedom of Information Act lawsuit to get more information about an alleged "confession of error" by former acting U.S. Solicitor General Neal Katya that his office made misrepresentations to the U.S. Supreme Court in American Indian law cases, The Legal Times' Tony Mauro reports. Katyal made his remarks in a video for the Federal Bar Association's annual Indian law conference in 2011.

According to the association's complaint, Katyal made a "'confession of error' for the solicitor general's role in two Supreme Court cases that were setbacks for tribal sovereignty: United States v. Sandoval, a 1913 decision that limited tribal property rights in New Mexico, and the 1955 ruling in Tee-Hit-Ton Indians v. United States, which rejected an Alaskan tribe's Fifth Amendment claim seeking compensation for timber taken on tribal lands," Mauro reports.

A confession of error could undermine those precedents, which have been cited hundreds of times in federal court, Mauro also reports.
 

The Justice Department is seeking the dismissal of Twitter's lawsuit in which the social-media firm is challenging restrictions on revealing information about national security requests for user data, the Washington Post's Ellen Nakashima reports: "At issue is a letter issued in January 2014 by the Justice Department relaxing limits for companies wishing to disclose the number of such requests they receive. Twitter, which was not among the five firms that negotiated the new limits with the department, thought they were still too strict." The government says that the letter does not restrict Twitter's free expression.

The PEN American Center is calling on the U.S. Justice Department to investigate how the press was treated by law enforcement covering the protests in Ferguson, Mo., following the death of Michael Brown, the St. Louis Business Journal reports. For example, police held reporters in areas away from the events they were covering and they flashed lights to hinder photographers. PEN American Center is asking the Justice Department "to issue new guidelines for U.S. police departments on respect for media freedoms, including the rights accorded to citizen journalists; take disciplinary measures against any officer responsible for violations; and establish a 'clear policy for the policing of public protests that emphasizes respect for the rights to assembly and freedom of the press,'" St. Business Journal further reports.

Matt Apuzzo, writing in the New York Times, reports that one of retiring Attorney General Eric Holder's legacies is shifting terrorism cases from military tribunals to the civilian courts: "Five years ago, the debate over whether terrorists should be prosecuted in criminal courts was so contentious that it made its chief advocate, Attorney General Eric H. Holder Jr., a political liability. Republicans argued that F.B.I. interrogation was not suited to wartime intelligence-gathering. By extension, civilian courtrooms were no place for terrorists, who did not deserve the same rights as common criminals." In contrast, Guantanamo Bay tribunals have had problems, including two convictions overturned on appeal.

The Wall Street Journal reports that Bank of America is going to pay a record settlement of $17 billion over its mortgage lending: "The deal will resolve a government investigation that stems largely from the bank's purchases of Merrill Lynch & Co. and Countrywide Financial Corp. as they teetered in the housing crisis." More than $9 billion is expected to be in cash, WSJ further reports.

Just Security's Steve Vladeck's writes that last week's decision finding a Department of Justice's Office of Legal Counsel memo is exempt from the Freedom of Information Act "may have the effect, unintended or otherwise, of insulating virtually all nonpublic OLC memos and opinions from FOIA requests–regardless of their subject-matter or sensitivity." (The opinion regards the FBI's use of exigent National Security Letters.)

Vladeck writes the D.C. Circuit reasoned that the memo was exempt under Exemption 5 for "'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'" The court said the memo was not the "working law" of the FBI. Documents developed under a federal agency's working law are not exempt under Exemption 5. The problem is that Office of Legal Counsel's "memos are generally viewed as authoritative guidance to the rest of the Executive Branch when it comes to the scope of the government’s legal authorities–whether or not they are 'adopted' as such," Vladeck concludes.

Buried in this story on a meeting of American Indian tribes and federal prosecutors is a statistic showing that federal prosecutions of crimes on reservations increased 54% from 2009 to 2012. The lack of resources to pursue law-breaking on tribal reservations, particularly sexual violence against American Indian women, has been a huge issue in recent years. As novelist Louise Erdrich said in an interview about her most recent novel in which a mother's rape by a white man is unprosecutable, "The statistics are one in three native women are raped, about 67 percent of those rapes fall under federal jurisdiction and are not prosecuted.  Something like 88 percent are believed to be committed by non-natives, and the tribes have no jurisdiction over non-natives." The increase in federal prosecutors' caseloads might be showing the tide is turning on this issue.

For the full interview with Erdrich, see: http://www.pbs.org/newshour/art/blog/2012/10/conversation-louise-erdrich...