Marshalling Forces

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Attorney Andrew Cohen analyzes legal issues for CBS News and

The heinous murder of the family of U.S. District Judge Joan Humphrey Lefkow in Chicago last week ought to serve as a wakeup call to Congress, the judiciary, and most of all, the U.S. Marshal Service, which is primarily responsible for protecting federal judges and magistrates. Judges and their families must be better protected in this age of terror, but throwing money at the problem, which is what some members of Congress immediately suggested, may not necessarily be the answer.

Congress already has significantly increased funding for judicial security even as it has permitted what Supreme Court Chief Justice William Rehnquist called in January a "funding crisis" within the judiciary as a whole. According to Justice Department statistics, funding for judicial security rose about 50 percent between the terror attacks on America and last year. The problem, it seems, is not whether members of Congress are willing to ensure that their colleagues on the bench are protected but, rather, how to best spend the money the legislative branch has authorized for the endeavor — or at least how best to justify more funding.

After the Twin Towers fell, Congress authorized the Marshal Service to hire just over 100 new "Court Security Inspectors" in order to help the service with its "ability to assess threats and determine appropriate measures to protect members of the federal judiciary during high-threat trials and while they are away from the courthouse." And, exactly one year ago, in March 2004, the Office of the Inspector General issued a report that described how it thought the Marshal Service was doing.

The answer? Not great. And now, in the wake of the Lefkow murders, it will be interesting to discover whether the Marshal Service was able between last March and now to implement some of the recommendations offered by the OIG and, if not, whether any of the suggested changes might have made a life-or-death difference to the judge's family. At the very least, the tragedy in Chicago ought to compel important officials to ask the right questions of the Marshal Service and federal law enforcement agencies in general.

One such question is whether the Marshal Service has improved the speed and quality with which it evaluates threats. Last March, the OIG found that the Marshal Service "routinely fails to meet its internal standards that require threats against judges to be assessed within a specific time period." Moreover, the report concluded that "the validity of USMS assessments is questionable because the historical threat database used to assess reported threats has not been updated since 1996. The database contains no information on the more than 4,900 threats made since then — including threats related to terrorism cases that have occurred since September 11, 2001."

Another question is whether the Marshal Service has improved its communication with other law enforcement agencies. The OIG found last March that the Marshal Service "has limited capacity to collect and share intelligence on threats to the federal judiciary ..." because the service "has neither acted on internal studies that identified the need for the USMS to improve its capability to collect and share intelligence nor updated internal guidance to implement the authority granted by Congress in the Patriot Act." The specific problems of sharing information detailed in the report are quite similar to the famous problems discovered by and among law enforcement agencies (and the CIA and DOD) after Sept. 11, 2001.

And someone ought to ask the Marshal Service whether it has brought its technology current in other areas. Last year, the OIG determined that the Marshal Service "lacks adequate risk-based standards for determining the appropriate measures to protect the judiciary" and that it has failed to update its guidance on "individual protective measures" (which is presumably the area most closely related to the tragedy of the Lefkow family). A year ago, the OIG found, the USMS guidance did "not address the use of equipment that has become more widely available in recent years, such as perimeter cameras, car alarms, home alarms, and cellular phones, and has not been updated to account for threats that are beyond the ability of the USMS alone to mitigate, such as the threat of retaliation by international terrorists. Further, the guidance still directs readers to offices and functions that were eliminated almost ten years ago."

Responding to the Lefkow incident, a spokesperson for the Marshal Service told the Associated Press last week that the Service stands by the risk assessment it made in the Lefkow case before the killings. And it's important to note that Lefkow herself asked that her security detail be withdrawn in 2003 when she presumed, tragically it turned out, that the heat was off. But did that risk assessment benefit from the lessons learned through the OIG report or was it as "questionable" as the risk assessments the OIG identified in its March 2004 report? And why should judges be allowed to withdraw their security details anyway? President Bush isn't allowed to withdraw the Secret Service.

The Marshal Service told The New York Times last week that it would not be possible to provide round-the-clock protection for all judges and that less than handful of federal judges have been killed in the 200-plus years that they have graced our system. It's also true that some federal judges aren't exactly easy security clients. They are notorious for chafing under the presence of their detail. Remember, too, that Supreme Court Justice David H. Souter was mugged while jogging in May 2004 — an appalling episode in the annuals of judicial security at a time when judges in Iraq are routinely assassinated.

No one is saying it's easy to protect the thousands of federal judges and magistrates around the country. And no one expects perfection from the Marshal Service. But at a time when judges are taking on higher-profile roles in the legal war on terror, there is no excuse for not reacting quickly to the problems the OIG cited last March. Even if the OIG's recommended changes would not have saved the lives of Lefkow's husband and mother they might save lives in the future. "This is an urgent matter of homeland security," wrote Rep. Jan Schakowsky (D-Ill.) to President Bush last Thursday. "Federal judges all over the country are in need of protection from terrorism, both foreign and domestic." Sen. Richard J. Durbin, (D-Ill.) wrote Attorney General Alberto R. Gonzales: "These cruel and cold-blooded killings are attacks not only on two innocent individuals, but on our criminal justice system as well."

These two members of Congress, who represent the judge's hometown and home state, ought to lead the charge to figure out how well the Marshal Service performed between March 2004 and now, even as they evaluate whether more spending is necessary to better protect the judiciary. That additional funding may well be necessary. But it will be wasted if its recipients aren't able or willing to implement the necessary and obvious changes mentioned in the OIG report. In the meantime, if Congress is inclined to respond to this tragedy by spending money on the federal courts, say, in the name of Lefkow's family, it ought to seriously consider what the Judicial Conference of the United States, the judiciary's policy making body led by the Chief Justice, has recently asked for and why.

The president allotted $485.9 million to the federal judiciary in his current budget proposal. It isn't nearly enough. The Judicial Conference last month asked the president for $101.8 million more. Of this amount, the conference says it needs $91.3 million to help the federal courts deal with 12,000 to 18,000 anticipated new sentencing cases (a result of a Supreme Court ruling in January) and virtually all the rest to cope with the expected influx of about 300 new federal class-action cases stemming from the new "tort reform" legislation passed last month.

The system simply cannot absorb this new wave of litigation without additional financial help, a reality highlighted by the chief justice, who wrote before the sentencing and class-action developments that "continuing uncertainties and delays in the funding process, along with rising fixed costs that outpace any increased funding from Congress, have required many courts to impose hiring freezes, furloughs, and reductions in force." On the one hand, Congress and the White House are increasing the workload on the judiciary and on the other hand are tightening the purse strings. It's a recipe for disaster.

As an important tribute to the Lefkow family, and while its investigative bodies evaluate whether and to what extent the Marshal Service needs more help or just better leaders, Congress ought to help its sister branch by giving it the money is has requested. We ask our judges to be brave and strong and true — and they are. But it's too much to ask them to be all those things without the help they sorely need.

CBS News Producer Stephanie Lambidakis contributed to this piece from Washington D.C.

By Andrew Cohen