Military lawyers will serve as immigration judges as courts face massive backlog

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• Geoff Bennett:

  The Trump administration will temporarily assign military lawyers to act as judges in immigration cases.

  A statement released by the Pentagon spokesperson says: "At the request of the Department of Justice, the Department of Defense is identifying qualified judge advocates and civilian attorneys for details to serve as temporary immigration judges. These DOD attorneys will augment existing resources to help further combat a backlog of cases by presiding over immigration hearings."

  There are a number of questions about the implications of this novel move.

  And, for that, we turn to James McPherson. He was the undersecretary of the Army during the first Trump administration and also had a 25-year career in the Navy, where he served as that service's top lawyer in uniform.

  Thank you for being with us.

  And before we get to the implications, I have to ask, in your view, is this legal, the expansion of the U.S. military into a civilian judicial process?

  Rear Adm. James McPherson (Ret.), Former U.S. Undersecretary of the Army: Well, there's certainly a lot of legal issues that is raised by this decision, not the least of which is whether or not it's appropriate to appoint a commissioned officer in the military to these positions, whether or not it violates the Posse Comitatus Act.

  There are some old Office of Legal Counsel opinions out of the Department of Justice that indicate it is legal, but in a very narrow sense. And whether that narrow sense is met by appointing them as temporary immigration judges is yet to be seen.

• Geoff Bennett:

  Well, how do the courtroom and administrative law skills that JAG lawyers develop in the military, how does that translate into serving as temporary immigration judges, when immigration law is so specialized and complex?

• Rear Adm. James McPherson (Ret.):

  As you said, it is very specialized and complex.

  What's very interesting is, Thursday of last week, the Department of Justice changed the rules with regard to who's qualified to be a temporary immigration judge. Prior to Thursday of last week, it required that they be a retired immigration judge or retired administrative law judge or have 10 years experience in practicing immigration law.

  As of Thursday of last week, the new rule is any licensed attorney can be appointed as an immigration — a temporary immigration judge. I think, if a JAG is assigned to that, they will come to it with a skill set that they have as an attorney. But they're certainly going to need to have some training, have some time to learn the various intricacies of immigration law, because, as you said, it's a very specialized practice area.

• Geoff Bennett:

  And NPR is reporting that these military lawyers will receive some two weeks of training. There is this question, though, could their dual role as members of the armed forces and now as adjudicators of civilian immigration cases, will that raise questions about their independence and partiality?

• Rear Adm. James McPherson (Ret.):

  It certainly could raise questions along those lines.

  Again, I would hope that any officer, any commissioned officer would go into that job understanding that their job is to administer justice and would do just that, and if they felt that they were being pressured to do anything other than that, they would step away from that job and say, I can't do this.

• Geoff Bennett:

  And immigration judges, as you know, they have the power to revoke green cards, to order deportations. What concerns you about assigning that authority to people without significant, as we said, immigration law experience?

• Rear Adm. James McPherson (Ret.):

  Well, what concerns me is that they could inadvertently make mistakes, and those mistakes would affect people's lives and would also create issues on appeal to the appellate courts, immigration courts.

  I just don't think it's a very good idea. I find it ironic that they would utilize JAGs, when our secretary of defense holds them in such low esteem. Indeed, during his Senate confirmation hearing before the Senate Armed Services Committee, he referred to uniformed military attorneys in very derogatory and quite obscene terms.

  I'm surprised now that they view them as having this skill set so that within two weeks they can learn this intricate area of law.

• Geoff Bennett:

  The backlog that we mentioned is nearly four million cases' long. Do you see this as a sustainable fix, even if it's a temporary one, or is this a politically expedient move?

• Rear Adm. James McPherson (Ret.):

  I don't think that it's attainable to get through that backlog. As you said, in January, when this administration came in office, there were over four million cases pending.

  There are six — their authorization for 600 immigration judges — many of them have either quit or took advantage of the early retirement plan under this administration, and now there are great holes in that court system that they hope to fill by a temporary basis. I'm not sure they will be able to get through that backlog.

• Geoff Bennett:

  James McPherson, thank you so much for sharing your perspectives on this late-breaking news. We appreciate it.

• Rear Adm. James McPherson (Ret.):

  Thank you.

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