Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P12 pdf

JUSTICE DEPARTMENT The Department of Justice DOJ is the executive branch department responsible for handling the legal work of the federal government.. Although the deputy attorney gener

the jurors to continue deliberating and to listen carefully to each other and to be deferential toward each other’s views Continued failure to arrive at a verdict results in aHUNG JURY, which necessitates a new trial with a different jury

In criminal trials in most jurisdictions, the jury’s job ends with the delivery of a verdict of guilt or innocence on every count pertaining to the case, and the judge determines sentencing

In civil cases, juries generally determine the amount of a damages award

Jurors sometimes exercise their right to protest against a law that they consider unfair or unjust by voting “not guilty” even though the defendant is guilty of violating that law

This practice is calledJURY NULLIFICATION and it goes back to colonial times An example of jury nullification would be when a juror who believes that marijuana should be legalized votes “not guilty” in a case in which the defendant is accused of growing marijuana The Fully Informed Jury Association (FIJA), founded in

1989, provides information about jury nullifica-tion to prospective jurors who might not know that it exists as an option

FURTHER READINGS Amar, Akhil Reed 1995 “Reinventing Juries: Ten Suggested Reforms ” Univ of California at Davis Law Review 28 (summer) Available online at http://www.law.yale.edu/

documents/pdf/1995Reinventing.pdf; website home page: http://www.law.yale.edu (accessed August 4, 2009).

Conrad, Clay S., 1999 Jury Nullification: The Evolution of a Doctrine Durham, NC: Carolina Academic.

Leach, Brian E 1994 “Extending Batson v Kentucky to Gender and Beyond: The Death Knell for the Perem-ptory Challenge?” Southern Illinois Univ Law Journal 19.

Minnesota State Court Administration, Office of Research and Planning 1993 Minnesota Supreme Court Task Force on Racial Bias in the Judicial System: Final Report.

St Paul Available online at http://www.mncourts.gov/

documents/0/Public/Court_Information_Office/Race_

Bias_Report_Complete.pdf; website home page:

http://www.mncourts.gov (accessed August 4, 2009).

Minnesota State Court Administration, Office of Research and Planning Implementation Committee on Multicul-tural Diversity and Fairness in the Courts 1994 Progress Report St Paul.

Minnesota State Court Administration, Office of Research and Planning Implementation Committee on Multicul-tural Diversity and Fairness in the Courts 1995 Progress Report St Paul.

Montoya, Jean 1996 “The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the ‘Blind’ Peremptory.” Univ of Michigan Journal of Law Reform 29.

Sklansky, Joseph J 1996 “Right to Jury Trial.” Georgetown Law Journal 84 (April).

CROSS REFERENCES Due Process of Law; Grand Jury.

JURY COMMISSION

A group of officials charged with the responsibility

of choosing the names of prospective jury members

or of selecting the list of jurors for a particular term in court

The provisions governing these officers vary greatly from one state to another In certain states, they are elected, and in others, they are appointed by the governor or by judges Com-missioners may be regarded as officers of the state or county or of the court which they serve

In choosing the names to compose the jury list, the commissioners have the power to decide those who are fit to serve as jurors or whether particular individuals possess the qualifications set forth by the statutes The list, however, must

be selected without discrimination from all those qualified to serve as jurors

JURY NULLIFICATION

A sanctioned doctrine of trial proceedings wherein members of a jury disregard either the evidence presented or the instructions of the judge in order

to reach a verdict based upon their own consciences

It espouses the concept that jurors should be the judges of both law and fact

The traditional approach in U.S court systems is for jurors to be the “triers of fact,” while the judge is considered the interpreter of law and the one who will instruct the jury on the applicable law JURY NULLIFICATION occurs when a jury substitutes its own interpretation

of the law and/or disregards the law entirely in reaching a VERDICT The most widely accepted understanding of jury nullification by the courts

is one that acknowledges the power but not the right of a juror or jury to nullify the law Jury nullification is most often, although rarely, exercised in criminal trials but technically is applicable to civil trials as well, where it is subject to civil procedural remedies such as the

JUDGMENT NOTWITHSTANDING THE VERDICT

In criminal cases, however, theFIFTH AMEND-MENTto the U.S Constitution makes final a jury trial that results in an acquittal, and it guarantees freedom fromDOUBLE JEOPARDY This gives juries

an inherent power to follow their own con-sciences in reaching a verdict, notwithstanding jury instructions or charges to the contrary

98 JURY COMMISSION

History and Development

Jury nullification is not new; in fact, proponents

wanting to justify its contemporary application

do so by referring to early U.S history when

American colonists struggled to fashion a legal

system that would be applicable to them Prior to

U.S independence, theENGLISH LAW of SEDITIOUS

LIBEL carried grave consequences for colonists

who spoke out against British rule of the colonies

In 1735, defense counsel for John Peter Zenger, at

Zenger’s trial for seditious libel, contended that:

[Juries] have the right beyond all dispute to

determine both the law and the facts, and

where they do not doubt of the law, they

ought to do so This of leaving it to the

judgment of the Court whether the words are

libelous or not in effect renders juries useless

(to say no worse) in many cases

The jury acquitted Zenger, and every

subsequent colonial jurisdiction that confronted

the issue of the jury’s right to decide both the

law and the facts also came to the conclusion

that jurors could decide matters of law

How-ever, this conclusion must be put into historical

perspective First, in pre-revolutionary days,

colonists lived under what they deemed an

undemocratic, tyrannical government The jury

became a shield, where colonists could be judged

by members of their own communities, and it

was considered their only means for

demo-cratic expression Second, the entire premise of

democracy, in both pre- and post-independence

days, demanded popular control of all facets of

government There was also a practical side to

granting juries such unyielding control of trials:

early colonial judges were essentially laymen

selected from among their peers, and they often

knew no more law than did the jurors

However, once the United States established

itself and a new republican form of government

was developed, the will of the people became

expressed through popular election of

repre-sentatives and the enactment of their own laws

As nullification of the law would constitute a

frustration of the popular will, the issue became

essentially moot Jury nullification was no longer

considered necessary or desirable in a democratic

society Concomitantly, the role of judges as

those who decided issues of law became

enmeshed with traditional trial procedure Not

until more than 100 years later did the U.S

Supreme Court have to address the issue In the

case of Sparf and Hansen v United States, 156

U.S 51, 15 S Ct 273, 39 L Ed 343 (1895), it

unequivocally determined that, in the federal system at least, there was no right to jury nullification The opinion noted,

[Juries] have the physical power to disregard the law, as laid down to them by the court

But I deny that…they have the moral right to decide the law according to their own notions or pleasure On the contrary, I hold

it the most sacred constitutional right of every party accused of a crime that the jury should respond as to the facts, and the court

as to the law…This is the right of every citizen, and it is his only protection

In subsequent years, jurors tended to invoke nullification to address either unpopular laws

or overzealous application of them Historic examples include the Alien and Seditions Acts, the Fugitive Slave Acts, andPROHIBITION During the era of theVIETNAM WAR, the issue resurfaced

in United States v Dougherty, 473 F.2d 113 (D.C

Cir 1972) In that case,DEFENDANT members of the Catholic clergy had ransacked the offices of the Dow Chemical Company to protest the manufacturing of napalm At trial, defense counsel requested that members of the jury be instructed on their power to nullify the law The trial court refused, and the court of appeals upheld the decision Sporadic subsequent cases, presenting variations on the theme, have similarly underscored the high court’s historic ruling

Notwithstanding a judiciary that denied jurors the right to nullify, over the years, jurors have continued to use their power to do so The power is most often wielded when jurors believe that an acquittal is justified for reasons that the law does not officially recognize Examples include controversial social issues such as motorcycle helmet laws, ABORTION and right-to-life issues, medicinal use of marijuana, andEUTHANASIA

In 1997 the U.S Court of Appeals for the Second Circuit held that a juror’s intent to nullify the law wasJUST CAUSEfor dismissal from the jury

The case of United States v Thomas, 116 F.3d 606 (2d Cir 1997) involved an African-American juror’s dismissal from the criminal jury trial of five African Americans on drug charges However, the narrow opinion also reversed the convictions of the five defendants and remanded the matter for a new trial

Although the court ruled that a juror’s refusal

to apply the relevant law was just cause for dismissal, only unambiguous evidence of the juror’s deliberate disregard of the law (not apparent in this case) would justify such a dismissal In so holding, the appellate court

JURY NULLIFICATION 99

acknowledged the necessity for secrecy in jury deliberations

Similarly in 1999, the Colorado Court of Appeals reversed a lower court’s contempt conviction of juror Laura Kriho People v Kriho,

996 P.2d 158 (Colo App [1999]) Several of Kriho’s fellow jurors testified that during delib-erations, she suggested to them that drug cases should be handled in the community rather than

by a criminal justice system, and then advised them of their right to nullify Although the trial court cited Kriho’s alleged misleading of the court about her attitudes toward drug use during voir dire examination, the appellate court found that the Kriho case was, in fact, about jury nullification It reversed her conviction on grounds that the court should not have consid-ered evidence from jury-room deliberations The end result of these cases reaffirms that juries have the power to render unreviewable general verdicts of acquittal, making it nearly impossible

to definitely prove that nullification occurred

Legislative Efforts Starting in the early 1990s, a new wave of grass-roots promoters again brought the issue to the forefront, attempting this time to focus on legislation rather than on CASE LAW Several states—including Arizona, Louisiana, Massachu-setts, Tennessee, and Washington—were unsuc-cessful in efforts either to introduce or to pass legislation or constitutional amendments that would require judges to instruct jurors of their right to nullify the law And in 2002, South Dakota voters overwhelmingly rejected a pro-posedCONSTITUTIONAL AMENDMENTto institution-alize jury nullification

FURTHER READINGS Conrad, Clay S., 1999 Jury Nullification: The Evolution of

a Doctrine Durham, NC: Carolina Academic.

——— “Jury Nullification: Jurors Flex Their Muscles.”

USA Today Magazine (November 1, 1999) Available online at http://www.articlearchives.com/law-legal-system/trial-procedure-jury-trial/1656174-1.html; website home page: http://www.articlearchives.com (accessed August 4, 2009).

Creagan, M Christine 1993 “Jury Nullification: Assessing Recent Legislative Development ” Case Western Reserve Law Review 43.

“Criminal Law—Jury Nullification—Second Circuit Holds That Juror ’s Intent to Nullify Is Just Cause.” 1998.

Harvard Law Review 111.

Frees, Karen 2000 “Case Law and Jury Nullification.” For the Record Available online at http://www.clr.org (accessed August 4, 2009).

Pepper, David A 2000 “Nullifying History: Modern-Day Misuse of the Right to Decide the Law ” Case Western Reserve Law Review 50.

CROSS REFERENCE Jury.

JUS [Latin, right; justice; law; the whole body of law; also a right.] The term is used in two meanings: Jus means law, considered in the abstract; that is,

as distinguished from any specific enactment, which we call, in a general sense, the law Or it means the law taken as a system, an aggregate, a whole Or it may designate some one particular system or body of particular laws; as in the phrases jus civile, jus gentium, jus proetorium

In a second sense, jus signifies a right; that is,

a power, privilege, faculty, or demand inherent in one person and incident upon another; or a capacity residing in one person of controlling, with the assent and assistance of the state, the actions of another This is its meaning in the expressions jus

in rem, jus accrescendi, jus possessionis

JUS COGENS That body of peremptory principles or norms from which no derogation is permitted; those norms recognized by the international community as a whole as being fundamental to the maintenance of

an international legal order

Elementary rules that concern the safeguarding

of peace and notably those that prohibit recourse to force or the threat of force Norms of a humanitarian nature are included, such as prohibitions against genocide, slavery, and racial discrimination Jus cogens may, therefore, operate to invali-date a treaty or agreement between states to the extent of the inconsistency with any such principles or norms

JUS TERTII The right of a third party A tenant or bailee or another in possession of property, who pleads that the title is in some person other than that person’s landlord or bailor, is said to set up a jus tertii

JUST Legally right; conformity with that which is lawful

or fair

Just cause for an action, for example, is a reason for a course of action that is based upon

GOOD FAITH

100 JUS

JUST CAUSE

A reasonable and lawful ground for action

Appearing in statutes, contracts, and court

decisions, the termJUST CAUSErefers to a standard

of reasonableness used to evaluate a person’s

actions in a given set of circumstances If a

person acts with just cause, her or his actions are

based on reasonable grounds and committed in

GOOD FAITH Whether just cause exists must be

determined by the courts through an evaluation

of the facts in each case For example, in Dubois

v Gentry, 182 Tenn 103, 184 S.W 2d 369

(1945), the Supreme Court of Tennessee faced

the question of whether aPLAINTIFFwho leased a

filling station had acted with just cause in

terminating a lease contract The DEFENDANT

station owner argued that the plaintiff had no

right under the terms of the lease to terminate it

The court found that the plaintiff had just cause

to terminate the lease because the effort

supportingWORLD WAR IIhad created an employee

shortage and wartime rationing had placed

restrictions on gasoline and automobile parts,

making it unprofitable to operate the station

The term just cause frequently appears in

EMPLOYMENT LAW Employment disputes often

involve the issue of whether an employee’s actions

constituted just cause for discipline or

termina-tion If the employer was required to have just

cause for its action and punished the worker

without just cause, a court may order the employer

to compensate the worker Labor unions typically

negotiate for a contract provision stating that an

employee cannot be fired absent just cause

Since the 1980s a just cause standard has

developed for employees not protected by an

employment or a union contract This standard

is an alternative to the traditional

employment-at-will doctrine Under the latter, which has been in

place since the late 1800s, employees who do not

have an employment contract may be terminated

at the will of the employer for any reason, or for

no reason Under the new just cause standard,

many jurisdictions now hold an employer to its

word where the employer has stated it will not fire

employees without just cause

FURTHER READINGS

Bloch, Richard I., George H Cohen, and Framroze M.

Virjee 2000 “The Changing Face of Just Cause: One

Standard or Many? ” Presented at the 53rd annual

meeting of the National Academy of Arbitrators.

Delmendo, Wendi J 1991 “Determining Just Cause: An

Equitable Solution for the Workplace.” Washington

Law Review 66 (July).

Riley, K Jack, Nancy Rodriquez, Greg Ridgeway, and Dionne Barnes-Proby 2005 Just Cause or Just Because?

Santa Barbara, CA: RAND.

JUST COMPENSATION Equitable remuneration to the owner of private property that is expropriated for public use through condemnation, the implementation of the governmental power of eminent domain

The FIFTH AMENDMENT to the U.S Constitu-tion proscribes the taking of private property

by the government for public use without JUST COMPENSATION No precise formula exists by which the elements of just compensation can

be calculated Ordinarily, the amount should be based upon the loss to the owner, as opposed to the gain by the taker The owner should be fairly and fully indemnified for the damage that he

or she has sustained The owner has a right to recover the monetary equivalent of the property taken and is entitled to be put in as good a financial position as he or she would have been

in if the property had not been taken Generally, the measure of damages for property condemned throughEMINENT DOMAINis its fair market value, since the sentimental value to the owner is not

an element for consideration Market value, however, is not an absolute method of valuation but rather a practical standard to aid the courts

in their determination of just compensation based upon constitutional requirements

When just compensation is assessed, all elements that can appropriately enter into the question of value are regarded For example, the original cost of the property taken, added to the cost of reproduction or replacement, minus depreciation, can be considered when the market value of property is determined

JUST DESSERTS

A retributive theory of criminal punishment that proposes reduced judicial discretion in sentencing and specific sentences for criminal acts without regard to the individual defendant

JUST WAR

As widely used, a term referring to any war between states that meets generally accepted international criteria of justification The concept

of just war relies on political, moral, and theological tenants, as it promotes a peaceful resolution and coexistence between states, and the use of force or the invocation of armed conflict only under certain circumstances It is not the same as, but is often

JUST WAR 101

confused with, the term jihad or “holy war,” a Muslim religious justification for war

The principle of a JUST WAR emerged early

in the development of scholarly writings on

INTERNATIONAL LAW Under this view, a just war was a means of national self-help whereby a state attempted to enforce rights actually or allegedly based on international law State practice from the eighteenth to the early part

of the twentieth century generally rejected this distinction, however, as war became a

frequent-ly chosen means of altering the existing rights and boundaries of states, irrespective of the actual merits of the controversy

FollowingWORLD WAR I, diplomatic negotia-tions resulted in the General Treaty for the

RENUNCIATION OF WAR, more commonly known

as theKELLOGG-BRIAND PACT, signed in 1928 The signatory nations renounced war as a means to resolve international disputes, promising in-stead to use peaceful methods

The aims of the Kellogg-Briand Pact were adopted in the Charter of theUNITED NATIONSin

1945 Under the charter, the use or threat of force as an instrument of national policy was condemned, but nations were permitted to use force in individual or collective SELF-DEFENSE

against an aggressor The General Assembly of the United Nations has further defined aggres-sion as armed force by a state against the sovereignty, territorial integrity, or political independence of another state, regardless of the reasons for the use of force The Security Council is empowered to review the use of force and, therefore, to determine whether the rele-vant circumstances justify branding one nation

as the aggressor and in violation of charter obligations Under the modern view, a just war

is one waged consistent with the Kellogg-Briand Pact and the Charter of the United Nations

What has complicated the concept of just war in contemporary international relations is the emergence of“asymmetrical warfare.” The term refers to conflict with parties or entities (such as international terrorist groups) who are neither officially connected with, nor owe allegiance to, any particular public authority

or state While these individuals or groups may

be dependent upon clandestine assistance from states willing to help them secretly, they are not publicly responsible to them Because contem-plation of just war requires public authorities to act in their official capacities for the common

good, that objective is frustrated by the lack of a discernible, clearly identifiable enemy state against which to act As a result, the international community is divided over what constitutes legitimate grounds for a traditional state actor

to attack an international terrorist group inside the sovereign territory of another country The September 11, 2001, terrorist attacks resulted in the deaths of almost 3,000 people in New York City, Washington, D.C., and rural Pennsylvania, near Shanksville According to U.S intelligence, the attacks were carried out by

a group of 19 Islamist terrorists with links to the al-Qaeda network The United States responded

to the attacks by declaring aWAR ON TERRORISM During the first phase of this war, the United States invaded Afghanistan to depose the Taliban government, which was believed to have been harboring the terrorists while they planned theSEPTEMBER11ATTACKSand providing sanctuary to the terrorists after the attacks Known as Operation Enduring Freedom, the American-led invasion of Afghanistan removed the Taliban from power However, the Taliban has regrouped, regained strength, and reclaimed some territory, while U.S forces remain in Afghanistan under NATO leadership as of 2009 The second phase of the War onTERRORISM

began on March 20, 2003, when the United States invaded Iraq U.S intelligence indicated that Iraqi President Saddam Hussein had a history of supporting international terrorist organizations and that he had stockpiled

WEAPONS OF MASS DESTRUCTION (WMD) in large quantities The intelligence also indicated that Hussein had used WMD (mostly biological and chemical agents) against Iran during the Iran-Iraq war and against Iran-Iraqi Kurds in Northern Iraq According to U.S President GEORGE W

BUSH, the purpose of the Iraq invasion was to disarm Iraq of WMD and thus prevent terrorist groups like al-Qaeda from acquiring them Within three weeks after the invasion, the Iraqi military had collapsed, and Hussein had been removed from power However, an insurgency and sectarian violence soon flared up and made the continued presence of U.S military forces necessary As of 2009 the U.S military contin-ued to maintain a presence in Iraq, with more than 4,000 U.S service men and women having died in Iraq during the six-year conflict Dating back to the early Catholic theologians who first wrote about just-war theory, there was

102 JUST WAR

only one kind of just war: a war in self-defense to

resist aggression by another nation Principles

established in the NUREMBERG TRIALS of the Nazi

war criminals following WORLD WAR II, and later

adopted by the United Nations, declared that it is

a “crime against peace” to start or wage “a war

against the territorial integrity, political

indepen-dence, or sovereignty of a state.” The United

Nations charter also outlaws wars of aggression

and specifically sanctions wars waged in

self-defense Under this line of thought, then, both of

the U.S.-initiated wars in Afghanistan and Iraq

might be described as unjust wars because

technically speaking neither the Taliban

govern-ment in Afghanistan nor the Saddam Hussein

government in Iraq had attacked the United

States prior to the commencement of hostilities

Yet for many people around the world, the war

in Afghanistan has always been considered the

“good war,” while the war in Iraq has long been

considered the“bad war.” The war in Afghanistan

was considered the“good war” for several reasons

First, the available evidence indicated that the

Taliban government was in fact harboring

al-Qaeda terrorists, who were believed to have

carried out the attacks of September 11 Second,

more than 40 nations expressly provided military,

logistical, or other support for the war in

Afghanistan, lending strength in numbers to the

moral underpinnings of the war Third, the war

resulted in the replacement of a harsh despotic

regime governing Afghanistan with a regime that

was democratically elected The war, then, was

not fought for territorial aggrandizement on the

part of the invading coalition Fourth, execution

of the war was not marred by widespread and

notorious misconduct of the invading coalition

forces Finally, evidence gathered following the

invasion supported the original premise for the

invasion, namely that the Taliban had developed

cozy relations with al-Qaeda and had been

allowing the terrorist network to use Afghanistan

as a safe haven from which to launch their attacks

Evaluating the U.S.-led war in Iraq under

just-war principles is much more complicated

There are two perspectives One perspective

holds that the Iraq invasion must be evaluated

based on the information available on the date

of the invasion The other perspective holds that

the Iraq invasion must be evaluated in light of not

only the information available before military

operations began, but in light of all the

informa-tion that has become available since then

On the date of the invasion, U.S intelligence knew that following the 1991 Gulf War, the U.N Security Council had passed Resolution

687, which required Iraq to destroy all of its chemical, nuclear, and biologicalWEAPONS Over the next ten years, the U.N compiled a series of reports showing that Saddam Hussein had failed

to comply with that resolution On November

8, 2002, the U.N Security Council, in a 15-0 vote, passed Resolution 1441, which found Iraq

to be in “material breach” of Resolution 687, and warned of “serious consequences” if Iraq did not fulfill its obligations to disclose and dismantle its WMD

In January of 2003, U.N weapons inspector Hans Blix reported that Saddam Hussein and the Iraqi government still had not come to a

“genuine acceptance” of its obligations under Resolutions 687 or 1441 Specifically, Blix reported that Iraq had failed to account for

350 metric tons of bulk chemical warfare agents (including nerve gas), 2,700 metric tons of precursor chemicals, 300 metric tons of VX (the most toxic nerve gas), 25,000 liters of anthrax spores, and 30,000 special munitions, which Iraq admitted possessing in 1999 Based on this information, the United States and a coalition of approximately ten other countries decided that the only way to compel Iraq to disclose and dismantle its WMD was by force via a military invasion

Russia, China, and France led a group of more than ten countries that voiced opposition

to the invasion These countries favored giving diplomatic efforts a greater opportunity to succeed in fulfilling the objectives expressed in Resolutions 687 and 1441 Opposition to the Iraq invasion grew as military operations unfolded No WMD were ever discovered, thus undermining the original purpose for the invasion The United States and its coalition partners were unable to bring security to Iraq after toppling its government Instead, the country was overtaken by sectarian violence and an insurgency that left more than one million Iraqis dead, homeless, or displaced in other countries Widely reported harsh treat-ment of prisoners of war and detainees held

by U.S and coalition forces within Iraq, at Guantanamo Bay, Cuba, and at secret prisons in other countries throughout the world further soiled the moral underpinnings of the war In light of this information, many believe the Iraq invasion was unjust Indeed, prosecutors in

JUST WAR 103

Spain are considering indicting certain Bush White House officials for violating theRULES OF WARin planning and carrying out the invasion

The military conflicts in Afghanistan and Iraq demonstrate the difficulties of applying just-war principles in the new millennium Not only can WMD bring death to tens of thousands

of people, technology enables them to be delivered by conventional means during formal military operations or by unconventional means via a surreptitious terrorist attack on a civilian population Waiting to defend one’s country against a war of aggression waged by a state actor or terrorist organization can thus have deadly consequences At the same time, acting preemptively to eliminate a threat before it fully materializes carries its own perils, including incurring the wrath of other countries in the community of nations and placing your own soldiers at risk in foreign military campaigns

FURTHER READINGS Falvey, Joseph L., Jr “Reflections on Just Wars and Just Warriors ” Journal of Catholic Legal Studies 47.

Johnson, James Turner 2002 “Jihad and Just War.” First Things 124.

Novak, Michael 2003 “Asymmetrical Warfare & Just War.”

National Review online Text of public lecture given on February 10, 2003, in Rome Available online at www.

nationalreview.com/novak/novak021003.asp (accessed August 13, 2003).

Schwartz, Daniel 2008 “Just War Doctrine and Nuclear Weapons: A Case Study of a Proposed Attack on Iran ’s Nuclear Facilities from an American and Israeli Perspec-tive ” Southern California Interdisciplinary Law Journal Fall.

CROSS REFERENCES Rules of War; War Crimes.

JUSTICE The proper administration of the law; the fair and equitable treatment of all individuals under the law A title given to certain judges, such as federal and state supreme court judges

JUSTICE DEPARTMENT The Department of Justice (DOJ) is the executive branch department responsible for handling the legal work of the federal government Head-quartered in Washington, D.C., the DOJ is the largest legal organization in the United States, with more than 100,000 employees nationwide and a budget of approximately $30 billion

The DOJ comprises many administrative units whose responsibilities involve either

representing the United States’ interests in court

or enforcing federal laws Many of the depart-ment’s activities involve traditional legal and investigative functions, such as filing suits on behalf of the United States or apprehending criminals Other department functions are ad-ministrative For example, the Office of Policy Development is devoted to long-term policy planning

Department Leadership

At the top of the department is the attorney general, who is appointed by the president and must be confirmed by the Senate A key member of the president’s cabinet, the attorney general supervises the many divisions, bureaus, and offices of the DOJ Unlike other cabinet members, however, the attorney general also functions as a practicing attorney, serving as the president’s legal adviser

Below the attorney general are the deputy attorney general, the associate attorney general, and theSOLICITOR GENERAL Although the deputy attorney general is officially the second-highest position at the DOJ, the office of associate attorney general, created in 1977, is often considered to be equally powerful The deputy attorney general and the associate attorney general divide the department’s administrative responsibilities between them, providing direc-tion to the organizadirec-tional units in the depart-ment They also advise the attorney general on policy matters The solicitor general is primarily responsible for supervising and conducting government litigation before the federal appel-late courts, including the U.S Supreme Court Department Structure

The DOJ is composed of several different units, including divisions, bureaus, and offices The government’s legal business is handled by the department’s six litigating divisions: Antitrust, Civil, CIVIL RIGHTS, Criminal, Environment and Natural Resources, and Tax Each of these divisions is headed by an assistant attorney general These divisions handle cases involving the United States that have a broad legal impact Nationwide, the government is represented

by 93 U.S attorneys, who conduct all federal court cases and some federal investigations in their districts Each state has at least one U.S attorney, and some of the larger states are divided into districts that each have a U.S attorney The U.S attorneys handle the majority

104 JUSTICE

of cases in which the federal government is a

party Although the U.S attorneys report to the

DOJ, they traditionally operate with a fair

amount of independence and autonomy Each

U.S attorney is appointed by the president and

confirmed by the Senate to a four-year term

The several bureaus within the DOJ are

concerned with various aspects of law

enforce-ment The U.S.MARSHALS SERVICE (USMS) is the

country’s oldest law enforcement agency,

hav-ing begun as a group of 13 marshals appointed

by GEORGE WASHINGTON; in the early 2000s, the

USMS has 94 marshals and is primarily

respon-sible for providing court security, transporting

prisoners, apprehending fugitives, protecting witnesses, and executing federal court orders

TheFEDERAL BUREAU OF INVESTIGATION(FBI) is the government’s major investigatory agency and the largest unit within the DOJ; the FBI pursues information concerning federal violations, col-lects evidence in cases involving the United States, and performs other duties assigned by law or by the president TheDRUG ENFORCEMENT ADMINISTRATION(DEA) combats drug trafficking, investigating major drug dealers, helping to prepare cases against them, and helping foreign governments pursue drug dealers Also under the DOJ’s umbrella are the Bureau of Prisons

Attorney General

U.S Department of Justice

Deputy Attorney General

Solicitor

General

Associate Attorney General

Office of

the

Solicitor

General

Office of

Justice

Programs

Executive

Office for

United States

Trustees

Office on

Violence

Against

Women

Community

Oriented Policing Services Office of Information

Policy

Office of

Dispute

Resolution

Foreign Claims Settlement

Commission

Civil Rights Division

Antitrust Division

Tax Division

Civil Division

Environment and Natural Resources Division Community Relations Service

Office of Legal Policy

Office of Legislative Affairs

Office of Inter-Governmental and Public Liaison

Office of Public Affairs

Office of Legal Counsel

Federal Bureau of Investigation

Executive Office for United States Attorneys United States Attorneys

Criminal Division

Bureau of Prisons

United States Marshals Service U.S National Central Bureau Interpol

Office of the Federal Detention Trustee

National Security Division

Justice Management Division Executive Office for Immigration Review

Professional Responsibility Advisory Office

Office of Professional Responsibility

Office of the Pardon Attorney

United States Parole Commission National Drug Intelligence Center

Drug Enforcement Administration

Bureau of Alcohol, Tobacco, Firearms, &

Explosives

Office of the Inspector General

ILLUSTRATION BY GGS CREATIVE RESOURCES REPRODUCED BY PERMISSION OF GALE,

A PART OF CENGAGE LEARNING.

JUSTICE DEPARTMENT 105

(BOP), which oversees the federal prison system, and the Office of Justice Programs (OJP), which administers crime prevention and deterrence programs

The DOJ also houses several offices that provide administrative support functions These include the Office of Legislative Affairs, which coordinates the DOJ’s relationship with Con-gress; the Office of Legal Counsel, which helps the attorney general to furnish legal advice to the president; the U.S Parole Commission, which administers the parole system for federal prison-ers; the Executive Office for U.S Trustees, which administers the handling of BANKRUPTCY cases;

and the Foreign Claims Settlement Commission, which handles cases against foreign govern-ments for losses sustained by U.S citizens

The Bureau of Justice Statistics is another important component of the DOJ The bureau, which was established in 1979, is responsible for the collection and analysis of criminal justice statistics at the state and federal levels It issues annual reports on criminal victimization, popu-lations under correctional supervision, and federal criminal offenders and case processing

It also issues periodic reports on the adminis-tration of law enforcement agencies and correc-tional facilities, prosecutorial practices and polices, state court case processing, FELONY

convictions, characteristics of correctional populations, criminal justice expenditure and employment, and civil case processing in state courts

History of the Department The position of attorney general has its roots in medievalENGLISH LAW The title attorney general can be traced to 1398, when the Duke of Norfolk employed attorneys general to witness his banishment In the years following, the king

or queen and other nobles employed attorneys

to appear in court on their behalf In time, the office of the king’s or queen’s attorney became a privileged and powerful position The attorney general, as the position was called after 1461, became an important political and legal adviser, first to the monarch and later to the House of Commons and the government in general

When English settlers established colonies

in North America, they included the office of attorney general in the colonial governments they created Virginia was the first colony to appoint an attorney general, in 1643, followed

by Rhode Island in 1650, and Maryland in 1660

By the end of the seventeenth century, most of the colonies had their own attorneys general By

1776, a fairly consistent system of courts and law officers had been established in the colonies With the American Revolution, British office-holders were simply replaced with Americans When the Constitution was written in 1789, the Framers did not specifically designate an office of attorney general, instead leaving such administrative details to be determined by statute The attorney general was created by the JUDICIARY ACT OF 1789, which specified that the office should be filled by “a meet person, learned in the law,” who would “prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and … give his advice and opinion upon questions of law when required by the PRESIDENT OF THE UNITED STATES, or when requested by the heads of any of the departments.” The act gave the attorney general limited powers and resources, including no provisions for staffing or office expenses The person filling the office was expected to pay for such items Because the position of attorney general was originally meant to be a part-time position, the salary was set at just $1,500 per year, and the officeholder was expected to maintain a private legal practice

The first person to fill the position of attorney general was EDMUND RANDOLPH, of Virginia, who was George Washington’s per-sonal attorney Although the attorney general initially was not a member of the president’s cabinet, Washington valued Randolph’s advice

so much that he asked Randolph to sit in on his cabinet meetings Ever since then, the position

of the attorney general has been recognized as

a cabinet post

In addition to the office of attorney general, the Judiciary Act of 1789 established the U.S district attorneys (now called U.S attorneys) and the U.S marshals, who represented the federal government in court and enforced federal laws, respectively, at the state and local levels Although these officials were statutorily under the supervision of the president, they actually operated with very few checks To make the government’s legal work more controllable and consistent, Attorney General Randolph attempted to bring the U.S attorneys and marshals under his supervision, arguing that

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such centralization would help him to secure

the government’s legal interests However, the

legislation that Randolph recommended failed

in Congress

This division of the government’s legal

work—among the attorney general, the district

attorneys and marshals, and also solicitors hired

by individual executive departments—resulted

in uncoordinated, inconsistent, and inefficient

legal service to the federal government

Pre-sidents and attorneys general made several

attempts to centralize the government’s legal

services, but Congress was leery of giving the

executive branch more power and therefore did

not pass the necessary legislation

In the early nineteenth century, the office of

the attorney general expanded slowly The

workload was light, and until 1814 the attorney

general was not required to reside in

Washing-ton, D.C., except when the U.S Supreme Court

was in session Significant changes were made,

however, when WILLIAM WIRT, attorney general

under President JAMES MONROE, took over the

office in 1817 Finding that previous attorneys

general had kept no records of their work, Wirt

established a formal system for recording his

official actions and decisions so that future

attorneys general would have a record of

precedents to follow Wirt also expanded the

duties of the office and created formal operating

procedures, greatly increasing his workload

Congress compensated Wirt for his efforts,

increasing his salary to $3,500 and providing a

clerk and office expenses These funds, however,

were one-time appropriations only; not until

1831 did Congress begin making regular

appro-priations for office expenses and book purchases

The next attorney general to make

signifi-cant changes in the office was CALEB CUSHING,

who was appointed attorney general by

Presi-dent FRANKLIN PIERCE in 1853 Unlike his

predecessors, Cushing left his own private legal

practice and transformed the office of attorney

general into a full-time position Cushing

expanded the work performed by the

depart-ment and was also given additional

responsibil-ities by Congress, including advising treaty

commissioners, examining government land

titles, administering government patents, and

compiling and publishing federal laws To

enable Cushing to complete this work, Congress

in 1859 authorized the appointment of an

assistant attorney general, who was given control

of the U.S district attorneys Congress also raised the attorney general’s salary to $6,000, finally making it equal to the salaries of other cabinet members

With the onset of the Civil War, the govern-ment’s need for legal services and representation increased drastically All across the country, claimants were filing suits in cases involving issues such as property titles and personal rights The attorney general’s office did not have the resources

to handle these cases, nor did it have adequate authority over the district attorneys in the states

The various executive departments were forced to hire outside counsel to represent the government, resulting in enormous costs—nearly $500,000 over four years These totals came to the attention

of Congress, which was trying to curb expenses in the aftermath of the war To try to economize on the government’s legal bills, Congress passed the Judicial Act of 1870, which created the DOJ The staff was increased by two assistants and a solicitor general, who was to share the attorney general’s task of representing the federal government before the U.S Supreme Court The act also gave the attorney general positive authority over the U.S

district attorneys and marshals Although the creation of the DOJ did not materially change the duties of the attorney general, it significantly changed the nature of the job by making it an administrative position that is responsible for

an official bureaucracy

Even with the creation of the DOJ, the federal government’s legal work suffered from a lack of coordination because individual execu-tive departments continued to retain their own solicitors These solicitors provided legal advice

to their departments and claimed the right to represent the departments in court The con-flicts and confusion that were created between the departments and the DOJ came to a head during WORLD WAR I, when many new federal government agencies and departments were created, each claiming the right to conduct its own legal work In response, PresidentWOODROW WILSON issued an executive order (Exec Order

No 2877 [1918]) requiring all government law officers to operate under the supervision

of the DOJ By the 1920s, administrative chaos returned as individual departments again tried

to conduct their own legal work In 1933, President FRANKLIN D ROOSEVELT issued another executive order (Exec Order No 6166 [1933]) consolidating all the government’s legal work under the DOJ and the attorney general

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