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Assistant Attorney General Tony West Speaks at American Bar Association Day at the University of Chicago Law School
Chicago ~ Wednesday, April 27, 2011

Just last week marked two years since Attorney General Holder swore me in as Assistant Attorney General for the Civil Division.   And, I have to tell you, there’s never been a job at which I’ve worked so hard or that I loved so much.   To serve in this role has been an extraordinary privilege for me and I’m delighted to be able to share a little of why that’s so with you today.

 

The Civil Division is the Justice Department’s largest litigating component.   With over 1000 lawyers and 1400 employees, we are essentially the federal government’s law firm.   We represent the Executive Branch, from the President and members of his cabinet to federal employees who find themselves in litigation over actions they took while on the job.   We defend Congress and the constitutionality of the statutes they enact.   And we represent dozens of federal agencies, advising them on regulatory policy and practice and defending the administrative decisions they make when they are challenged in federal court.

 

Add to our defensive litigation the affirmative civil and criminal enforcement mission we pursue and you have a public policy law firm that has a richly diverse and compelling docket; one that, on any given day, involves nearly every aspect of federal government operations as well as many of this Administration’s national security, foreign and domestic policy priorities.

 

And for those of us who are political appointees, we’re very aware that we operate under an expiration date; that it’s important to make every minute of our service count.  

 

So early on, I articulated three priorities I wanted to focus on while in this job:   To pursue vigorously our efforts to promote national security; to fight fraud on the American taxpayers by cracking down on health care and procurement fraud; and to redouble our efforts to protect consumers.  

 

At my swearing-in two years ago, I said that the Civil Division’s primary responsibility would be our work to protect the American people from national security threats – nothing we do is more important than this, and we must discharge that responsibility in a manner that respects the rule of law.

The fact that the Civil Division maintains such a heavy national security docket is one of the biggest differences between the Justice Department I now work in and the one I joined as a new attorney, barely a year out of law school, nearly two decades ago.   Back then, I could get to my fourth floor office in Main Justice by walking through almost any one of the many oversize, steel doors that line Pennsylvania, 9th and 10th Avenues.   Today, of course, employees must pass through a double security check before gaining access to the building.  

 

And in this post 9-11 Civil Division there’s scarcely a week that goes by where I don’t deal with a significant, often controversial national security issue.  

 

One recent case illustrates this.   Some of you may have heard about a man named Anwar al-Aulaqi.   Designated by the Treasury Department as a “Specially Designated Global Terrorist,” al-Aulaqi is a leader of a group called Al-Qaeda in the Arabian Peninsula, or AQAP, which is a Yemen-based terrorist group that has claimed responsibility for numerous armed terrorist attacks against American and other targets.  

 

Al-Aulaqi has also recruited individuals to join AQAP, and according to media reports, he has used the Internet to communicate with them.   But one thing that sets him apart is his familiarity with the United States. He grew up here; was educated here; has family here; and he's an American citizen.

 

Last fall, the ACLU and al-Aulaqi’s father filed a lawsuit on al-Aulaqui’s behalf alleging that the son was on a “targeted kill” list allegedly maintained by the U.S. and that American forces were allegedly searching for him in Yemen with the intent of using lethal force against him.   To do so, the lawsuit claimed, would deprive an American citizen of life and liberty in violation of the Constitution.  

 

The lawsuit asked the court to enjoin the President and the military from killing al-Aulaqi unless the United States disclosed the criteria it allegedly used to target al-Aulaqi and agreed to judicial oversight of such targeting decisions – relief that obviously implicated serious separation of powers concerns.

 

There were other difficult questions, as well:  

 

What are the contours of executive wartime authority and limits of judicial review?  

 

Did al-Aulaqi’s father have standing to assert claims on behalf of his son?   Couldn’t al-Aulaqi access the courts himself by surrendering to the proper authorities and filing a habeas petition?   And if the ACLU’s allegations about the government’s intentions were true, wouldn’t surrender afford al-Aulaqi the very protections from lethal force the lawsuit was seeking?

 

Could we litigate in open court a case that would inevitably involve a mountain of classified information involving strategic military determinations and sensitive foreign relations issues?  

 

And in some ways the most challenging question for us at DOJ:   Should the United States assert the state secrets privilege?   In 2009, Attorney General Holder issued a new policy providing that the state secrets privilege should be invoked only to protect information the disclosure of which would pose a genuine and significant harm to the national defense or foreign relations.   And even then, the assertion of the privilege must be narrowly-tailored, invoked only to the extent necessary to mitigate the harm.   Did this case meet that standard?

 

After consulting with our colleagues at the Department of Defense, the State Department and in the intelligence community, we ultimately sought dismissal of the lawsuit on non-justiciability grounds, namely standing and political question, arguing that the court need not reach the state secrets privilege in order to dispose of the case.

 

And after a spirited oral argument, the DC District Court agreed, dismissing the case without considering whether state secrets barred the litigation.   Neither al-Aulaqi’s father nor the ACLU has appealed the ruling.

 

The al-Aulaqi case and most of the other national security matters we handle – like litigating the habeas petitions filed by detainees held at Guantanamo Bay – they fall within the Civil Division’s traditional function of defending the institutional prerogatives of the Executive Branch, particularly when it comes to national security or foreign affairs.  

 

My second priority also underscores a traditional Civil Division role:   Our function to protect public funds from fraud, waste or abuse.   So I’ve made fighting fraud in public programs and public contracts a main focus of our affirmative civil enforcement work.

 

And those efforts have yielded success.   Since the beginning of this Administration, the Civil Division has, working with the Nation’s U.S. Attorneys, has recovered more than $10B in taxpayer funds lost to fraud — when compared to other two-year periods, that’s the highest fraud recovery in the history of the Department of Justice.

 

And even in Washington, $10B is real money.   Just to give you a sense, $10B could cover the full three-year tuition for every University of Chicago Law School graduating class for the next four centuries – assuming, of course, no tuition increases.   How’s that for a scholarship program?

 

We’ve been particularly effective in fighting health care fraud, over the last two years opening more health care fraud matters, securing larger judgments and fines, negotiating higher settlements and recovering more money – over $8B – than ever before.  

 

These health care fraud cases involve the full range of defendants, from large pharmaceutical companies to individual defendants; defendants engaged in a variety of schemes designed to maximize the amount of money the government will reimburse for certain drugs or medical services.   Schemes like paying kickbacks to physicians to encourage them to prescribe certain drugs covered by Medicare or Medicaid; the marketing of medicines for purposes that have not been proven as safe and effective by the FDA; or seeking government reimbursement for substandard medical services or indeed treatment that was not provided at all.  

 

And there are cases that clearly illustrate how health care fraud can undermine quality care and patient safety – cases like the one involving Small Smiles, a chain of dental clinics that served kids on Medicaid who couldn’t otherwise afford dental care.

 

As a former Assistant U.S. Attorney who has prosecuted several cases involving the abuse of children, this case struck a particular chord with me.   Because in the course of our investigation, we discovered that the company was performing unnecessary dental treatments on children in order to inflate their Medicaid reimbursements from the government.   Treatments like needless tooth extractions where healthy teeth were pulled; unnecessary dental surgery; and excessive baby root canals—one child had 16 root canals in one sitting.  

 

So when we sued Small Smiles last year, we not only obtained a $24 million dollar settlement; we also secured important reforms in the company’s practices, the dismissal of several employees and divestiture by the original owners, and the company’s cooperation with law enforcement investigations against individual dentists.

 

In addition to health care fraud, we’ve aggressively pursued procurement fraud, recovering a record-breaking $1 billion-plus in government contract fraud case recoveries, including over $130 million in military procurement fraud recoveries in connection with supplies to our active duty troops in Southwest Asia.  

 

And like our health care fraud cases, these procurement fraud matters involve more than the recovery of millions of taxpayer dollars; they’re about the impact such fraud has in the real world.  

 

One of our ongoing investigations involves several companies and individual executives that manufacture and sell Zylon fabric, the material used to make ballistic pads in bulletproof vests.   Three law enforcement officers have been seriously injured by gunfire while wearing Zylon fabric vests, and one has been killed.   We’ve alleged that the manufacturers of the Zylon fabric knew it was defective at the time they sold it to the federal government for use by federal, state, local, and tribal law enforcement agencies.   And since 2007, we have recovered over $60 million in nine settlements against defendants who not only cheated the taxpayers but who also unnecessarily put the lives of our men and women in law enforcement at risk.

 

Now, we know most health care providers, most defense contractors, most companies and individuals who do business with the Government – we know they are dealing fairly; that they are negotiating a complicated regulatory scheme or contractual landscape as best they can; that they’re playing by the rules and that they are careful with the taxpayer dollars they receive.

 

But we also know that there are far too many out there who cut corners, take advantage, and put profits over safety and quality — and they are the ones who will continue to attract the Civil Division’s enforcement attention.

 

My third priority also focused on the Civil Division’s affirmative enforcement mission:   To redouble our efforts to protect consumers, particularly when it came to financial fraud.

 

Through the Civil Division’s Office of Consumer Protection Litigation, or “OCPL,” we enforce a variety of consumer protection laws, often in conjunction with independent agencies like the FTC and the Consumer Product Safety Commission.   Created during the Nixon Administration, OCPL was originally intended to be a separate division with the Department of Justice.  

 

But for reasons lost to history, it ended up as a small office within the Civil Division.   And although some past Administrations have made efforts to eliminate it, I consider it one of our most important affirmative enforcement assets within the Division.  

 

So, I’ve reshuffled resources within my Division to expand it, to strengthen it, and to enlarge its enforcement footprint.   Through OCPL, we are expanding our use of the Civil Division’s criminal as well as civil enforcement jurisdiction to enforce certain consumer protection statutes aimed at making the food we eat safe and the products we buy sound.  

 

In addition, we’ve stepped up our efforts to curb mortgage fraud through greater enforcement, increasing recoveries in housing and mortgage fraud matters from $15 million in 2008 to over $50 million in 2009 and 2010.   And because we know we can’t enforce our way out of this financial crisis, we’ve also increased our prevention efforts, working with community consumer groups like NeighborWorks to help educate consumers about mortgage fraud and how to avoid it, as well as providing victims with easy, online tools to confidentially report fraud to law enforcement.

 

And through OCPL we’re also expanding our efforts to deal with counterfeit pharmaceuticals.   An estimated 36 million Americans purchase medication through online pharmacies – you may be one of them – and the World Health Organization estimates that more than half of drugs sold online are counterfeit.   Now some of these drugs sold online are simply useless – they don’t work as advertised.  But often, these counterfeit meds are actually harmful.  We’ve found drugs sold online that contain rat poison, highway paint and floor wax; pills masquerading as “Xanax” that contained a substance used to manufacture sheetrock; or so-called “Viagra” that was actually 85% cement.

 

And so within OCPL, we’ve now formed a team of attorneys dedicated to handling counterfeit pharmaceutical cases, particularly those trafficked over the Internet.

 

So protecting the safety and security of the American people; protecting taxpayer dollars from fraud; and protecting consumers from financial fraud and other health and safety threats – these imperatives have driven the Civil Division’s work over the last two years, and because, as Attorney General Edward Levi reminded us almost 40 years ago, “the agenda of the [Justice] Department is inevitably unfinished,” these priorities guide us still as we continue to tackle new challenges.

 

Challenges such as defending the Administration’s Affordable Care Act against constitutional challenge; launching a new Elder Abuse Initiative that is focusing on fraud and substandard medical care in nursing homes around the country; challenging Arizona’s attempt to preempt federal prerogatives with its own immigration policy; and pursuing BP, Transocean and others in federal court to ensure that not a single dime of taxpayer money is spent on cleaning up the Gulf Coast in the aftermath of America’s largest oil spill.  

 

And within the Civil Division, we’re constantly trying to improve, so I’ve initiated new efforts to give our litigators better and more comprehensive training; to enhance diversity amongst our ranks; and to encourage more pro bono service by our lawyers and legal staff at a time when the economy has put a premium on legal services for the poor, middle-class working families and small businesses.  

 

So I end where I began:   I love this job. I’ve often said that I have the best job in the Department of Justice.   Not only can I usually figure what my day is going to be like by reading the New York Times, since it’s a good bet that something in those pages will cross my desk at some point during the day, I also have the privilege of working with some of the most talented and dedicated public servants I’ve ever known:   the Civil Division career attorneys and legal staff. Their good judgment informs every major decision I make.

 

They exemplify something I learned over 15 years ago, when I was a young DOJ lawyer.  Back then, I had the good fortune to do much of my work for then-Attorney General Janet Reno.

 

Just before I left Main Justice to return to my home state of California to serve as federal prosecutor, Attorney General Reno asked to see me, one-on-one.

 

And during that meeting, she showed me the inscription on the wall just outside her private office, which reads, and I’m paraphrasing:  “The Government wins its case when justice is done.”

 

And she told me then that my job as a prosecutor wasn’t to win as many cases as I could, but to do justice in every case I handled.  

 

That’s the same spirit I see in my colleagues everyday.   And, in doing our best to heed Janet Reno’s words – to justice in every case we touch – we may not always get it exactly right, I can promise you we always try to do what’s right.   And that, I believe, can make the critical difference.

 

Thank you for the invitation and for allowing me to share some thoughts with you today.

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