WASHINGTON, D.C. (Federal News Network) — Defense Secretary Pete Hegseth is detailing military lawyers to the Justice Department to serve as special assistant U.S. attorneys in offices handling immigration enforcement.
The new memo, first reported by the Associated Press, comes as nearly two dozen military attorneys are set to begin hearing immigration cases in federal courts after being appointed as temporary immigration judges, according to the notice posted by the Justice Department. Hegseth announced in September that the Defense Department would detail up to 600 military lawyers to the Justice Department as temporary immigration judges.
The Defense Department did not respond to questions about the duties military and civilian judges would perform as special assistant U.S. attorneys, but the memo said candidates should have experience in immigration and administrative law.
“They could be doing prosecution work related to potentially immigration law. They could be doing prosecution related to criminal law, federal criminal law, I mean, they could be assisting in reviewing of evidence. But normally, that’s what special assistant U. S. attorneys do — they prosecute crimes that take place on military reservations, and they prosecute, usually, civilians that have committed those crimes,” Greg Rinckey, founding partner at Tully Rinckey PLLC, told Federal News Network.
“One of the things that I think we’ve seen the administration doing is trying to designate a certain strip of the border to be a military reservation. That could also be kind of playing into this plan of deputizing [Judge Advocates] as special assistants to prosecute those that commit crimes within that border area,” he added.
It is not clear how many lawyers have volunteered to serve in these roles. Hegseth directed the services to identify candidates by Thursday.
“It’s the military, so you’re either volunteering or you’re being voluntold. It sounds to me that people could be asked who wants to do it, and then if they don’t get enough, I think that they’re going to just assign a certain group of attorneys to it,” Rinckey said.
It’s not unusual for the Defense Department to detail employees to other agencies. The Department of Homeland Security, for example, has a history of drawing on DoD for additional resourcing and support when it faces big surges. But the Defense Department has increasingly asked its employees to volunteer for temporary assignments at other agencies to support immigration operations.
“I think it’s a large number, but the JAG Corps all have reserve JAG. They can supplement that by calling to active-duty reservists. I don’t really see this putting a strain on the military justice system,” Rinckey said.
While using military lawyers as immigration judges has no precedent, assigning them as special assistant U.S. attorneys is not unusual — there’s both historical precedent and legal authority for those roles, though there are limits, even though there are some parameters around what that should look like.
“That is quite different from the situation where military lawyers are serving as immigration judges. There’s no statutory authority for that, and also a very categorically different role for military lawyers to be serving as judges, adjudicators over civilians. That’s quite a different step,” Margy O’Herron, a senior fellow in the Brennan Center for Justice’s Liberty and National Security program, told Federal News Network.
