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Deputy Attorney General David W. Ogden at the Ninth Circuit Judicial Conference
Monterey, Calif. ~ Thursday, July 23, 2009

Remarks as prepared for delivery.

Thank you, Kelli, for that kind introduction and for inviting me to speak here this morning.   It is a pleasure to have this opportunity to talk with you about the work of the Department of Justice and its priorities.  

 

I know that as federal judges, you interact with Department of Justice attorneys every day, so you know a great deal about the work we do.  You read our briefs and engage with our lawyers in the courtroom.   I also know that many of you, before you were “Article III,” were “Article II,” are alumni of our Department and bring that experience to the bench, including my former colleague and boss, Judge Ray Fisher.  

 

So, today, I would like to speak with you about what the Department hopes to achieve in the coming months and years, because dialogues between judges and lawyers - and perhaps particularly Executive Branch lawyers - are essential to promoting the rule of law in the United States.   All too often, we forget that we are part of the same system of justice.   Our system is predicated on an adversarial model and the separation of powers between the branches but that separation need not make us adversaries or antagonists.   Rather, it makes us essential partners in balancing that tension to ensure our system protects the fundamental principles of liberty, equal justice, and the rule of law.   To those ends, I appreciated the visit judges Reinhardt and Kozinski paid me in Washington early in my tenure and the invitation to speak with you today.

 

In certain respects, the last few years have been tough ones for the Department.   Recommitment to and reinvestment in the basic values of our legal system — fulfillment of core responsibilities to courts, addressing the Executive’s relation to the other branches, re-establishing commitment to non-partisan hiring and enforcement that has been the Department’s hallmark across Democratic and Republican administrations — are among the top priorities of the Department of Justice. 

 

The Department’s charge is sweeping: it fights crime, protects civil rights, protects the public treasury, protects the environment, protects competitive markets, runs our prisons, protects our judicial officers, and, above all, protects the national security for all Americans.   To do all that has been entrusted to it, it is critical that the Department be both highly effective and highly efficient.   It must focus its resources where they are most needed; eliminate redundancies where they exist; be thorough and deliberate, but not wasteful or dilatory; and, at all times, make the best use of its most precious resource: its exceptionally capable career professionals.   And it must do all of this in a manner consistent with the Constitution, federal laws, ethical requirements, and with due respect for the key roles of Congress and the courts.    

Protecting our national security is our number one priority.   Every day, Justice Department officials work tirelessly to ensure that terrorism and other national security threats are combated as aggressively and as effectively as they possibly can be.  But we can protect our national security vigilantly and consistently with the rule of law.  

 

At the same time, we must reinvigorate the Department’s traditional functions; in particular, core law enforcement operations that have lagged in resources and effectiveness in recent years: financial crime, gangs, international organized crime, drug enforcement, civil rights, and the environment, as well as the fundamental federal obligation to ensure there is effective law enforcement in Indian Country.   The fact is that resources have shifted away somewhat from those core functions to meet the new mission.   But without slackening our vigilance on the national security side, we need to find the resources to do our original jobs to the standards the American people expect and require.

 

We are also focusing on significant policy and management challenges.   For example, we are taking a hard look at critical issues related to sentencing and corrections policy.   We are committed to ensuring that our sentencing and corrections systems promote public safety, provide just punishment, avoid unwarranted disparities, and reduce recidivism by helping ex-offenders successfully to re-join society.  The Attorney General has asked me lead a Department-wide Sentencing and Corrections Working Group to examine federal sentencing and corrections policy.   This working group is reviewing a variety of issues, including the federal sentencing guidelines, charging and plea negotiation policies, apparent racial disparities in criminal law and sentencing, the capital case process, prisoner reentry programs, and BOP policies and practices, among others.   In studying these important issues, we are reaching out to the Judiciary, the U.S. Sentencing Commission, victims groups, the defense bar, academics, and other stakeholders.   The working group plans to make recommendations to the Attorney General this fall.  

 

The Department’s credibility and commitment to getting the job done right also is at stake in the courtroom in civil litigation and criminal prosecutions.   To ensure that the Department meets the highest standards during discovery -- as in every stage of litigation -- in our criminal cases, and also in our civil litigation, we have taken both short-term and long-term action.  We have already begun providing supplemental training to federal prosecutors throughout the Department to ensure that they understand their discovery obligations and to emphasize their importance.  Earlier this week I was the Department’s National Advocacy Center in South Carolina, to announce a major initiative to expand the NAC’s training capabilities for our civil and criminal attorneys.   The Department’s attorneys should be the best trained in the legal profession and this initiative will commit significant resources to allow us to build on the good training programs already in place.

 

I have also created a working group of senior prosecutors and Department officials to review discovery practices in criminal matters and report back to me with recommendations on improvements that are needed.   And I have created a parallel working group to look at our civil discovery practices and capabilities.   That group is focusing particular attention to the issues surrounding electronic discovery.   I have received their recommendations and we are at work on responding to the needs they have identified.

 

These steps will make clear to all that the goal of the United States Justice Department is not to keep count of convictions, but rather to be accountable for justice.  They will make clear that our goal is to fulfill our responsibility as lawyers for the people of the United States and officers of the court.   There is no question in my mind that the career lawyers in the Department want to fulfill those duties and in the overwhelming majority of cases, they do so.   But the challenges they face are substantial, and they grow as the sophistication of legal practice grows, particularly in this age of electronic data that is stored in information systems that range from antiquated to cutting-edge.   We are determined to provide the wherewithal and set the tone to raise the bar still higher.

 

We face fundamental challenges across our traditional law enforcement functions, including criminal, civil rights, antitrust, the environment, consumer litigation, immigration, and civil fraud.   As I noted, in recent years, many of these traditional missions were sacrificed.   Department budgets have largely been held flat, even as after September 11th we devoted—necessarily, of course—significantly more resources to a new and substantial national security mission.   We are now focused on finding resources to restore our focus on these traditional law enforcement areas.   In particular, we have recently placed a significant priority on investigating and prosecuting financial crimes—particularly those that contributed to our current economic situation, like financial fraud, market manipulation and mortgage fraud.     

 

The Department is aggressively combating Mexican drug cartels here in the United States and helping Mexican law enforcement battle the cartels in their own country.   Working with the Departments of State and Homeland Security, we are developing a comprehensive response to the rise of violence by warring Mexican drug trafficking organizations in Mexico and the effects of that violence on the United States, particularly along our Southwest Border.   This is a national threat that is receiving the full attention of the Department of Justice.   To that end, together with the new leadership at DHS, we are having success breaking down bureaucratic barriers that have hampered our effectiveness. 

      

On a related note, we recognize the need for our Department to engage more completely on immigration issues.   With the creation of the Department of Homeland Security – and the transfer of the Immigration and Naturalization Service -- to that new agency, the Department lost some of its focus on immigration policy.   But the Justice Department retains critical responsibilities for immigration enforcement, detention, adjudication, litigation, and policy.   Our immigration courts, our litigating components, our prosecutors, the U.S. Marshals Service, the Detention Trustee, and the Bureau of Prisons, all play critical roles.  

 

In discussions with the leadership of DHS and ICE, the Attorney General and I have made clear our view that the priorities, policies, and resources of the two agencies must be aligned to achieve an effective and efficient system while furthering our basic duty to enforce the law and affirm this country’s heritage as a nation of immigrants.   The leadership at DHS and ICE share this vision – that we have a joint responsibility that requires close coordination at the policy level as well as at the level of operations.  

 

Following through on that shared vision, the Department and DHS have established an interagency working group to take a comprehensive look at the immigration removal system holistically and comprehensively -- from the initial filing of the charging document through removal.   The working group will look at all of the cases in the immigration pipeline to ensure that we make well informed choices in setting our priorities and that we use our limited resources most effectively.   Working with DHS, the Department seeks to ensure that the nation’s approach to immigration enforcement is reasonable, effective, and humane.   This means prioritizing enforcement to reflect the greatest needs and providing the resources and procedures necessary to ensure fair treatment.   The Department is committed to increasing the resources that are necessary to adjudicate and litigate immigration cases at the administrative and judicial levels.   

 

The Department is also taking a hard look at immigration enforcement issues.   As demonstrated by the Attorney General’s decision to vacate the Compean decision, we are concerned about the quality of representation immigrants are receiving.   In particular, we are very concerned about immigrants being preyed upon by bad lawyers and unscrupulous “notarios” -- a problem that you in the Ninth Circuit wrestle with regularly.

 

            We recognize also the huge burden immigration cases place on our nation’s courts, including the Courts in this Circuit.   Addressing those burdens is an essential part of viewing the immigration system comprehensively, and fashioning reforms to improve it as a whole.

 

We will do our best to improve the current system, but we recognize that the ultimate solution to many of the immigration problems is comprehensive immigration reform.   To that end, the President held a summit last month at the White House with leadership from Congress, DHS, and the Department.   Together with DHS we are laying the groundwork for possible legislation that recognizes the need for tough enforcement while finding a solution for the millions of undocumented immigrants who are here now.  

 

You in the Ninth Circuit have keen insight into these immigration issues from your experiences and we want to hear your thoughts, ideas, and concerns to assist us in developing creative solutions to the challenges we face in this arena.

 

            I hope I’ve given you an idea of the range of issues we face and how we are trying to take them on.   I know later today you will hear from my colleague, Solicitor General Elena Kagan, to continue our discussion.   I very much appreciate the chance to speak with you today and look forward to a productive partnership in the cause of justice.  

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