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April 01, 2002

A Federal Prosecutor's Pursuit of Justice

by John McKay

Like an earlier American tragedy, I will always remember where I was when I first learned of the attack on the Twin Towers and the Pentagon—in my boxers; in my sister’s basement; in Senate-confirmation limbo.

As the terror of these attacks unfolded before our startled nation, I got dressed and like all of us, followed the horrifying events on television in the coming days, weeks, and months. On October 30, after anthrax cancelled Senate committee meetings, I was finally sworn in as U.S. Attorney for the Western District of Washington. Now, as U.S. Attorney, I am considered the chief federal law enforcement officer in western Washington, with responsibility for counterterrorism, drugs, cybercrime, and a myriad of criminal prosecutive and civil representation duties on behalf of the United States. In this article, I do not purport to speak for the Department of Justice (DOJ); rather, as a personal perspective, I seek to describe one lawyer’s journey in the law.

Legal Services to Department of Justice

Having finished four years at the helm of the Legal Services Corporation (LSC), more than a few lawyers have raised eyebrows over my recent appointment. I see nothing inconsistent in serving in these posts, and would expect that upon reflection, most lawyers would agree.

Walking in the strawberry fields of central California with migrant farmworkers or seeing the pain of a woman suffering from domestic violence powerfully motivates lawyers and nonlawyers alike who are willing to hear these stories. I was privileged to serve as LSC president, to "speak up for those who cannot speak for themselves, for the rights of all who are destitute; speak up and judge fairly; defend the rights of the poor and needy." (Proverbs 31:8-9) Similarly, the pain and suffering of those who lost family or friends in the attacks of September 11 or of an elderly victim of cyberfraud call out to those who seek justice in the very same way.

As lawyers, we are all privileged to have the opportunity to pursue justice in the greatest democracy the world has known. Yet, those of us who believe in justice for all people including the poorest of the poor, understand that our system is not perfect, nor do we in all cases achieve perfect justice. We recognize this, of course, and still cherish every opportunity our status as lawyers allows to bring us closer, individual by individual, to a more perfect justice and thus a more just society. Like many others, I believe that our justice system should be evaluated on how it treats the poor and victimized, not the high profile or the rich. Advocacy on behalf of legal aid clients, and prosecuting those who victimize the poor are thus among the most important work that any lawyer can pursue. The legal profession often overlooks those whose careers are marked by a deep commitment to the rights of low-income people, yet my own admiration abounds for the career prosecutor and the career legal aid lawyer alike.

The Transformation of Federal Legal Services

During one of my first staff meetings as the new president of LSC in 1997, I listened in amazement to reports of contingency planning for the elimination of federal funding for legal aid. All such planning was stopped immediately on my orders.

The politically precarious standing of LSC, the threat to IOLTA funding (Interest on Lawyer Trust Accounts that in nearly all states provides significant funding for civil legal assistance for the poor), and a dearth of serious state contributions to legal aid funding made 1997 a particularly challenging year. I have written elsewhere of LSC’s troubled political history, and commented on its conflicting roots as both a social program of the 1960s designed to change the status of the poor in the expansion of the law through the courts, and as a vehicle to ensure representation of individual clients. See John McKay , Federally Funded Legal Services: A New Vision of Equal Justice Under Law, 68 Tenn. L. Rev. 101 (2000).

Throughout 1997-2001, a bipartisan coalition of bar leaders, judges, corporate interests, mayors, police chiefs, community representatives, and many others worked to both change LSC and win new support in Congress for federal funding for legal aid. With new leadership at LSC, federal legal aid was recast as a "public-private partnership" focused on the needs of individual clients. Strong enforcement of congressional restrictions on class action cases and some subject matters perceived as "political" in nature such as redistricting litigation was critical to winning new Republican support in Congress.

At the same time, a major restructuring of legal aid around the country was undertaken to develop state-based communities of justice in which the needs of individual clients took the forefront. Since 1997, LSC has radically altered the legal aid program configurations in many regions to pursue comprehensive, integrated, statewide legal services programs. During this period of "state planning," LSC grantees have decreased from almost 300 in 1997 to nearly half that number today. LSC’s policies have promoted the integration of its work with state courts, other legal services providers, and the growing use of technology in the courts and the lives of low-income Americans. For the first time, programs are required to pursue client-centered strategies and diverse funding sources consistent with federal law. Using its statutory authority and a new five-year plan unanimously adopted by its board of directors to set program service areas, the state planning program of service area consolidations has served as a tool to promote LSC’s vision of "client-centered communities of justice" in every state. Many small, tired, and underfunded programs were dissolved and many others were fundamentally changed pursuant to this new bipartisan vision. Statewide legal services communities are adopting new technologies, Web-based services, brief advice and referral capacity, and are committing to a full range of services to clients who need them.

LSC’s new bipartisan vision, including its internal and grantee program restructuring, won new and powerful support in the Congress and the White House. After years of floor fights to restore minimal funding, LSC’s budget now receives support from both caucuses and has become "noncontroversial." As a Republican, it has been extremely gratifying to see the emergence of mainstream GOP support in the House of Representatives with real heroes like U.S. Representatives George Nethercutt (R-Wash.) and Jim Ramsted (R-Minn.) stepping forward in less certain times to speak out for the poor and destitute, while holding LSC to its obligation to ensure compliance and enforcement of federal law.

As a new board appointed by President Bush prepares to take office at LSC, many challenges remain. From the Right, well-funded ideologues continue to target LSC, giving little credit for the reforms and massive changes in the national delivery structure designed to refocus the agency on the needs of individual clients. Trotting out legal aid "stories" that are often decades old or substantially false, these perennial critics offer no competing vision for governmental assurance of minimal access to the justice system for the poor. Many who consider themselves political conservatives believe that even the most minimalist view of government and the federal role see the establishment of courts and access to the justice system as essential components of a just society. Access to justice for poor women, senior citizens, and children at risk are responsibilities of the federal, state, and local courts as recognized by judges, lawyers, and scores of state legislatures. Republicans and Democrats in Congress have now created a strong bipartisan coalition of support for federal funding for legal aid that has thoroughly defeated those shrill voices that are mired in the past.

From the Left, some cling to the notion that salvation for legal aid lies in court challenges to congressional restrictions on work undertaken by legal aid programs. This approach will fail because it is based on a philosophy that the plight of the poor will be reversed through judicial activism and the creation of new rights in the courts. A relic of the 1960s, this strategy fails to recognize the success of bipartisan support for a limited federal role in legal aid that is nevertheless solidly within the center of both political parties and grounded in a client-centered view of access to justice for the poor. LSC was correct in fighting these court challenges to congressional will, and won great credit among moderate and conservative legislators who remain committed to the new bipartisan vision of legal aid.

Many now eagerly await the appointment of a new board of directors by the president to continue the pursuit of this bipartisan vision. Critics from the Right cannot ignore the strong support of Republicans in both the Congress and the White House for federal funding of the reformed LSC. Some on the Left who purport to speak for legal aid programs should discard their objections to LSC’s program reconfiguration, obsessive attachment to the status quo, and knee-jerk opposition to LSC’s compliance and enforcement responsibilities. Within LSC itself, a new board will bring much needed energy to the task of completing the national restructuring of the delivery/grantee system while ensuring compliance with congressional will.

Leaving LSC

With the election of President George W. Bush, my personal journey changed dramatically. Acting on election promises of "compassionate conservatism," the president offered a strong endorsement of LSC and federal funding:

For millions of Americans, LSC-funded legal services is the only resource available to access the justice system. . . . The Legal Services Corporation has been entrusted with the vital mission of providing free legal assistance to low-income individuals in civil cases. I support this mission and believe that the LSC can play a valuable role in ensuring that poor families are not treated unfairly and illegally by landlords, creditors and others merely because they cannot afford legal representation.

President’s Budget Request to Congress for Fiscal Year 2002

President Bush’s decision to support funding for LSC effectively ended Republican efforts in Congress to eliminate LSC funding. The president’s endorsement of LSC’s reforms and vision of serving individual clients has made permanent our national commitment to seek "justice for all." Although much remains to be done for those many who still face the justice system alone, the new bipartisan support in Congress and the White House gives us hope and a solid foundation for the future.

Although one of many seeking just such a transformation in LSC’s mission and congressional support, I was now free to step down as LSC president and return to my home in Seattle and the practice of law. My original two-year commitment in Washington extended to four years, and in the process I became the longest serving president in LSC’s more than twenty-five-year history. I had the privilege of representing the interests of low-income clients before Congress, the White House, and in the public eye. In the process, I worked with a dedicated staff in Washington and thousands of career legal aid lawyers and staff, many of whom today remain my friends and colleagues. While the debates raged in our government over the years, these dedicated lawyers protected the legal rights of battered women, homeless families, and the destitute elderly. They are the real heroes of the justice system, and in the new political environment for legal aid, should receive their due accolades and support.

Returning to Seattle in July 2001, I learned that I was being considered for appointment as U.S. Attorney for the Western District of Washington in Seattle. Eight days after the terrorist attacks on our country, September 19, the president nominated me. Following delays caused by the anthrax incidents in Washington and New York, I was confirmed by the Senate and sworn into office on October 30, 2001.

Fighting Terrorism and Protecting Human Rights

Two weeks before my arrival at the U.S. Attorney’s Office, Assistant U.S. Attorney Tom Wales was shot while sitting at his home computer. A long-time federal prosecutor and civic activist who ironically worked to eliminate handgun violence, his murder remains unsolved. Sadly, his office remained closed by yellow police tape and my new colleagues were deep in mourning as I began my new duties.

Against this backdrop, the attorney general declared terrorism the overriding priority of the DOJ, anthrax stalked the Capitol, and the president authorized the use of military tribunals under certain circumstances.

Each U.S. Attorney now leads an Anti-Terrorism Task Force (ATTF) of federal, state, and local officials for the purpose of coordinating the enormous investigation into the September 11 attacks and protecting the public from further terrorist attacks.

Two incidents with local impact made the terrorist threat even more real in Seattle. First, prior to September 11, lawyers in my office successfully prosecuted Ahmed Ressam, the Al Qaeda-trained terrorist who was arrested crossing the border from Canada in Port Angeles, Washington, en route to bomb LAX. Then, the discovery of a laptop in the caves of Tora Bora with photos of the Seattle area reminded us that not all those who wish us harm perished in the suicide attacks of September 11. The existence of the laptop photos led the NBC News at the end of January and appeared to indicate an interest by Al Qaeda in the Seattle area. The FBI, federal, state, and local law enforcement, our governor, and local officials, responded quickly to this challenge, reassuring the public and coordinating intelligence and preparedness.

An important part of my duties as U.S. Attorney includes, by order of the attorney general, outreach to communities that may have become targets of hate and revenge. Obviously, this includes Arab American and other Muslim groups, as well as mosques, churches, and community centers. We continue to meet with local leaders and to aggressively pursue those who threaten or attack law-abiding citizens and residents of our country. We have repeatedly been reminded by Attorney General Ashcroft and the DOJ Civil Rights Division of this responsibility and many offices, including mine, have active prosecutions against individuals accused of violating the civil rights of persons or groups in the aftermath of the September 11 tragedy.

As federal prosecutors, we remain responsible for pursuing a wide range of criminal prosecutions, with particular emphasis on gun crimes and pursuit of the president’s drug control policies. As part of our Project Safe Neighborhoods program, we lead coalitions of federal, state, and local law enforcement, community leaders, businesses, and schools, highlighting the horrific toll of gun violence and using enhanced federal sentencing to deter the use of weapons by criminals.

I was shocked to learn that during my absence, Seattle and the rural areas of western Washington State have become one of the top three methamphetamine producing regions in the country. At a recent meth "summit" held here, led by Drug Enforcement Administration’s Asa Hutchinson, federal, state, and local officials identified some of the challenges: meth lab "cookers" are set up in mostly rural areas, using harsh and dangerous chemicals to create their addictive product, leaving a toll of broken lives and mini environmental disasters. We are challenged to coordinate with rural sheriffs and local prosecutors to seek the eradication of this insidious drug. In addition, heroin continues to enslave many, and those who produce and import it face lengthy sentences and aggressive prosecution by federal authorities. Cocaine is exported to Canada along our Interstate-5 corridor, and "BC Bud" marijuana imported from Canada reputedly fetches a competitive price on the streets of southern California. We are developing cooperative strategies with the Royal Canadian Mounted Police and other Canadian authorities to disrupt this unwanted and dangerous commerce. We have a concommitant duty to protect the civil and constitutional rights of our citizens, and to aggressively pursue the safety and protection of the public within the protections of the law.

Led by the attorney general, my ninety-two U.S. Attorney colleagues and I feel deeply the obligation to pursue the criminal law enforcement priorities of the DOJ, with the overarching goal of preventing further terrorist acts on our country, while preserving the rights of all citizens, including accused persons. It is a privilege for me to join this effort during a challenging time for America.

John McKay

John McKay is U.S. Attorney for the Western District of Washington, and the former president of the Legal Services Corporation. He has served on the Board of Governors and in the House of Delegates of the American Bar Association, and was recognized by the Washington State Bar as Pro Bono Lawyer of the Year in 1995 and in 2001 received the Award of Merit, its highest honor.