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More than any other attorney general in U.S. history, John Ashcroft has established a clear mandate for the Justice Department: protecting the nation from terrorist attacks. But President George W. Bush’s 2004 budget proposal for the Justice Department also shows the growing need for the government to defend itself against legal strikes. An increasing load of litigation against the United States is forcing the administration to seek additional funds to defend challenges ranging from employment discrimination claims to direct attacks on Ashcroft’s counterterrorism policies. The resources in question are modest — just $12 million in a $23.3 billion budget. But with agencies facing incredible pressure to control spending, the request signals just how desperately the money is needed. Specifically, the budget sets aside $5.5 million to hire 35 additional lawyers in U.S. Attorney’s Offices for civil defensive litigation; $3.5 million for 22 new attorneys to defend immigration challenges and appeals; and $3 million to more than double the staffing on cases brought by American Indian tribes alleging mismanagement of funds. “It was pretty difficult to get money even when Justice was growing. It is always an uphill battle,” says DOJ Controller Eugene Schied. “Now, with the administration holding growth to no more than 4 percent overall, the need has got to be absolutely critical.” Defending personal injury and discrimination claims against the government may not be the Justice Department’s sexiest work, but the stakes are incredibly high. In most areas the Justice Department can control its caseload by affirmatively deciding whether to file charges; when it is the government being sued, the Justice Department must take every case that comes in the door. Some, such as the so-called Winstar cases stemming from the savings and loan bailout, claim billions of dollars in damages. Even cases that do not seek monetary relief can have immense consequences for administration programs and policies. “We get sued a lot — everything from a U.S. mail truck hitting a parked car to major environmental defense litigation,” says Guy Lewis, director of the Executive Office of U.S. Attorneys. “Anytime the U.S. is a party to a lawsuit you want vigorous representation.” Additional highlights in the Justice Department’s projected budget include: • A $60.6 million increase for the Foreign Terrorist Tracking Task Force, a controversial DOJ initiative that collects sensitive data on potential terrorists; • A $3.5 million increase for the two offices processing surveillance requests under the Foreign Intelligence Surveillance Act, or FISA; • A $101.2 million increase for DNA crime lab upgrades and other forensic DNA initiatives; and • A $24.5 million increase to boost federal white-collar crime prosecution, including the hiring of 18 additional Assistant U.S. Attorneys. CIVIL ACTIONS The president’s 2004 budget proposal calls for the creation of 60 new attorney and staff positions in U.S. Attorney’s Offices to cope with increasing civil defensive demands — an area that has not seen a funding increase in at least two decades. According to the Justice Department, the 93 U.S. Attorney’s Offices handled about 134,000 civil defensive matters in 2002 — roughly 15,000 more cases than in 1993. President Bush’s budget for 2003 also requested additional resources for civil defensive litigation. If adopted, the combined proposals would add 88 positions nationwide, including about 50 attorneys. Though it may not sound like much, the total increase matches that requested by the U.S. Attorney’s Offices to boost corporate fraud prosecutions in 2004. “Basically, we’re trying to make up for decades of increased workload,” Schied says. Among the areas experiencing a dramatic uptick in civil units across the country: medical malpractice claims against federally supported free clinics and employment discrimination cases against a variety of federal agencies. For cases against clinics under the Federal Tort Claims Act, the financial exposure of the United States topped $3 billion in 2002 — up 500 percent since 1994, according to the Justice Management Division. In the employment discrimination arena, cases pending in D.C.’s federal courts alone represent potential awards against the United States in the billions. “Obviously, there are a lot of critical priorities,” says Wilma Lewis, former U.S. Attorney for the District of Columbia and now a partner at D.C.’s Crowell & Moring. “One of the areas that stands out as having been neglected over the years is civil defense work.” Mark Nagle, Civil Division chief for the District’s U.S. Attorney’s Office, estimates that the 37 attorneys in his section are currently handling about 1,400 civil defensive matters. “No matter how you look at those numbers, the workload per attorney is incredibly demanding,” Nagle says. “In the past five years, we’ve been able to add three permanent slots, but all those resources have come at a direct cost to federal criminal prosecutions. The allocation of resources requires very, very difficult judgments.” IMMIGRATION WOES Overflow immigration cases from the Civil Division have also taxed the resources of U.S. Attorney’s Offices over the past year. While Immigration and Naturalization Service attorneys handle routine immigration proceedings before administrative judges, the Office of Immigration Litigation at Main Justice picks up habeas corpus petitions by INS detainees and appeals to the federal circuit courts. As a result of changes to the immigration appeals process and stepped up enforcement of immigration laws following the Sept. 11 attacks, cases handled by the 100-lawyer office soared from roughly 3,000 in 2001 to a staggering 6,900 in 2002. The president’s 2004 budget calls for the creation of 30 new positions in the offices, including 22 new attorneys — the first staffing increase since 1996. Without the increase, U.S. Attorney’s Offices will be left picking up thousands of immigration cases. According to the Justice Department, changes within the Bureau of Immigration Appeals account for most of the increase. In early 2002, Ashcroft implemented new policies aimed at reducing a 56,000-case backlog. As a result of the initiative, the bureau increased output 50 percent, funneling more cases into the circuit courts and overwhelming attorneys in the DOJ’s Office of Immigration Litigation. According to one Justice Department official, the office is so strained it must seek extensions in 75 percent of its cases. The office has also been critical in defending court challenges to post-9/11 immigration policies, such as closed immigration hearings and secret detentions. Jeanne Butterfield, executive director of the American Immigration Lawyers Association, which is involved in litigation against the Justice Department, calls the funding increase “appalling.” “It signals that they are committed to defending practices and policies which many believe are unconstitutional and violations of due process,” Butterfield says. “They could have resolved a lot of litigation by simply releasing the names and locations of those detained after 9/11.” TRIBAL TROUBLE One of the most dramatic budget proposals for defensive work is $3 million to defend a single series of lawsuits against the United States. The complaints, filed by American Indian tribes for alleged mismanagement of tribal assets, raise issues similar to those in Cobell v. Norton — a massive class action seeking more than $10 billion in damages from the government. Twenty-one lawsuits have been filed across the country on behalf of tribes since January 2002. With another 200 to 300 tribes that may still file suit, the government’s potential exposure exceeds that in Cobell. In addition to the economic considerations raised by the cases, the department clearly hopes to avoid some of the embarrassing episodes endured over the litigation of Cobell, including loud criticism from U.S. District Judge Royce Lamberth of the District of Columbia and citations against several Cabinet-level officials for contempt of court. Lamberth, who last week ordered six DOJ attorneys to pay personal sanctions for obstructing discovery, has eight of the tribal cases on his docket. The budget seeks 20 new hires, including 15 attorneys, to work exclusively on the tribal trust cases. Currently, only two attorneys work on the cases full time and another nine attorneys pitch in part time. Keith Harper, a staff attorney for the Native American Rights Fund, questions the administration’s strategy. “It looks like they are going to continue to battle on every front instead of looking for a reasoned way to resolve things,” Harper says. “They will do what they did in Cobell and delay and delay. They need these attorneys to file brief after brief.”

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