At least four lawyers serving in the U.S. military’s legal branch have been seated as judges on federal immigration courts in Massachusetts, after a number of judges were fired by the Trump administration in the Bay State and around the country.
The military lawyers come from the Judge Advocate General’s Corps, known as JAG. Three have been appointed to the Chelmsford court and one to Boston. The temporary hires come amid a huge backlog of deportation cases nationally and the increasing use of the military in civilian matters.
The ACLU of Massachusetts is suing the federal government to disclose information on the activation of military lawyers as immigration judges. ACLUM attorney Dan McFadden said the practice raises a host of concerns, including whether these lawyers can be fair adjudicators of immigration law.
“Are military immigration judges, who are there on active duty orders, sufficiently independent and impartial to do that work?” McFadden asked in an interview.
The practice also raises questions related to the century-and-a-half-old Posse Comitatus Act, which restricts the use of the military in civilian matters, said Margy O’Herron, a senior fellow at the Brennan Center’s Liberty and National Security Program at the New York University School of Law.
“There’s no expressly authorized exception, passed by Congress, for military lawyers to serve as immigration judges. Full stop,” she said.
In the JAG Corps, reservists and full-time personnel provide a broad range of legal services to military staff, from helping deploying soldiers draft their wills to prosecuting international terrorism suspects. In August of last year, Defense Secretary Pete Hegseth reportedly approved using up to 600 military lawyers as temporary immigration judges, a position typically occupied by veteran Justice Department attorneys with relevant experience.
The position of temporary immigration judge was created under the Obama administration in 2014 to deal with a “surge” in court cases. Last August, the DOJ eliminated the requirement that temporary judges have certain qualifications, including prior service as an immigration judge, or at least a decade of experience practicing immigration law within the Department of Justice.
Under the new rules, any lawyer can serve as a temporary immigration judge, for terms up to six months with possible extensions.
According to the new regulation, the DOJ “no longer believes the restriction of [temporary immigration judges] to current Department employees with a threshold level of immigration law experience serves [DOJ] interests. Immigration law experience is not always a strong predictor of success” as an immigration judge.
In July, two JAG lawyers were appointed as temporary judges to the Chelmsford court, according to federal bulletins announcing the hirings. They include Kai Bernal-LeClaire, a commander in the Navy Reserve and a member of the Texas bar; and Terry Meinecke, a lieutenant colonel in the Army Reserve and member of the North Carolina bar. Appointed to the bench in Chelmsford in October was Jason David Thomas, a lieutenant colonel in the Army Reserve and a member of the Massachusetts Bar.
Jared Monaco, a temporary immigration judge appointed to the Boston court in May, serves as a captain in the Army Reserve JAG Corps, according to an announcement of new judges.
Hegseth’s decision drew condemnation from legal advocates concerned about the lawyers’ lack of experience. The ACLU of Massachusetts sued the Pentagon in July, demanding it produce records related to the practice.
McFadden, the lead attorney for the ACLUM, said the records could answer key questions, such as whether JAG lawyers are serving voluntarily, and what the terms of their service include.
“The public and the legal community need to have access to the records of this program,” McFadden said, “and the instructions that define its operation, so that they can understand what is happening and understand whether or not this program complies with the law.”
One email obtained by the ACLUM and reviewed by WBUR appears addressed to JAG lawyers in the U.S. Marine Corps, seeking three volunteers for activations as immigration judges. The activations would last 179 days, including three weeks of training, followed by five months on the bench with an opportunity to extend.
Daniel Kanstroom, a law professor at Boston College, said he doesn’t presume JAG lawyers appointed as judges will do the bidding of the Trump administration. But he is concerned about whether those appointed are equipped to tackle immigration law, a complicated area that he said takes years to master.
In the past, “The government has generally looked for people who have experience practicing immigration law,” to serve as judges, Kanstroom said. And that’s not possible with short-term appointments.
“It’s kind of like asking a dentist to do abdominal surgery,” he added.
Some legal observers note that JAG lawyers have obligations to follow orders, and that could conflict with the need to provide fair hearings in immigration court.
“Any order that is given from somebody in their chain that potentially would conflict with the ability to provide a neutral adjudication would be a problem,” said the Brennan Center’s O’Herron.
She added that the practice is part of a broader move to militarize immigration enforcement in the U.S, including the use of military aircraft for deportation flights; the deployment of the National Guard and Marines to assist with immigration enforcement, and the establishment of military zones at the border.
“ Regardless of the legality, this is another move by the current administration to erode the line between military and civilian government, which has really been a core principle in the United States,” O’Herron said. “Doing that undermines public trust in the immigration courts as well as in the military.”
A Pentagon spokesperson declined to comment on the policy, citing “pending litigation.” The Executive Office for Immigration Review also refused to comment.
This article was originally published on WBUR.org.
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