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Bar Watch Bulletin August 8, 2006

Recommendations Considered by the House of Delegates, Karen Mendis Press Conference, Michael Greco's Farewell, Special Panel: Liberty vs. Security
August 08, 2006

The American Bar Association's Annual Meeting takes place in Honolulu from Thursday, August 3 to Tuesday, August 8. Once again, ABA WATCH has been reporting live from the meeting.

Recommendations Considered by the House of Delegates
The ABA House of Delegates considered several proposals in day one of its deliberations. The recommendation concerning presidential signing statements will be considered Tuesday morning. What follows is an overview of Monday's House of Delegates action.

Diversity and Legal Education
Recommendation 106B, concerning revisions to Standards 210-212 regarding diversity and legal education, generated considerable debate. Jose Garcia, representing the Section of Legal Education and Admissions to the Bar, opened discussion by heralding the merits of the proposal: "Fostering diversity in legal education is a core goal and value of the ABA and this section for many years. Indeed this Association and this section is at the forefront of the effort. The commitment to law school diversity represents a broad consensus expressed in legal education and higher education generally regarding the educational value of diversity in the classroom." According to the sponsor, the U.S. Supreme Court has recognized the importance of diversity in Grutter vs. Bollinger. Law schools in some circumstances would be permitted to use racial standards in admissions in the context of the law the Supreme Court has used. The sponsor noted that it considered input from many sources. One amendment was made in June 2006. Revised Standard 211 proposed law schools demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race and ethnicity. Law schools would have latitude in this commitment in taking into account their individual characteristics such as their geographic location. Furthermore, if an educational institution is to be successful in enrolling a diverse student body, it must also have a diverse faculty and staff. He stated, "Faculty and staff diversity enhance classroom discussion and better prepare students to be professional."

A Wisconsin State Bar delegate questioned the terminology of Section 211. He inquired whether the mandatory language of 211 raises ambiguity. He suggested that the ABA should question whether it is proposing something that violates the rule of law. He moved that Statement 211A and 211B be referred back to the Section of Legal Education and Admission to the Bar as the "mandatory language as drafted raises an ambiguity as to whether or not the standard complies with the Grutter requirements."

Immediate past president Robert Grey spoke in opposition to the referral. He stated, "We are faced with the responsibility of drafting the accreditation standards and do so in a matter that you will see it in fact encourages compliances with the Supreme Court. It uses the wording [of the Supreme Court's decision] for law schools to promote diversity...[T]he language that they have adopted comes as close as you can expect it to come."

Stephen Zack, chairman of the ABA House of Delegates, emphasized that 106B must be sent back in its entirety. The motion to refer failed by a majority, though not unanimous, vote.

A National Bar Association (NBA) executive committee representative wished that 211 could be parsed out of the resolution, as the NBA did not think Standard 211 went far enough in promoting diversity. A former LSAC chair, Pauline Snyder, shared the concerns of the NBA, but supported the Standards as they were designed to strengthen diversity requirements. She argued that the Standards are designed to comply with the Supreme Court's decision in Grutter. Law schools "shall" demonstrate by concrete action that they are taking steps to increase diversity among their faculty and study body. She maintained, "We can hold law schools accountable. And every time we do an inspection, we look very carefully at statistics at how many people are applying to those law schools, how many people are being admitted to those law schools, and how many people are graduating that are people of color. If we believe that there is a disparity...we are obligated to inquire further to ask the law school to show us what they are doing to address these issues. I don't believe the Section can take bigger steps than what they are taking."

Lillian Apodaca of the Hispanic National Bar Association stated that the legal profession recognizes the urgent need for diversity. She stated that U.S. law schools do not share that urgency and commitment. In the past 13 years, enrollment of underrepresented Hispanics has declined. She urged a results-oriented basis to provide that law schools should provide "a commitment" with respect to diversity. According to the delegate, a genuine effort does not always ensure results. Furthermore, "How can a law school decide whether its efforts are genuine or not?'' A best efforts approach is subjective, while in her view, a results-oriented approach is transparent and consistent with recent law such as Grutter. She requested that 106B be transmitted back to the Section. She urged the ABA to display leadership and to take on opponents of diversity proposals like the Federalist Society. Several others spoke in support of the proposal.

The motion to concur in the action of the Council was adopted.

Civil Gideon
Recommendation 112A, proposed by the Task Force on Access to Civil Justice and 27 co-sponsors, urged the creation of a "Civil Gideon." The Board of Governors joined in the recommendation. The Family Law Section proposed an amendment that civil counsel in all child custody proceedings should not be publicly funded. The amendment was approved. ABA President Michael Greco also spoke out in support of the recommendation. He stated adoption of this proposal would be one of the "brightest moments in the history of this Association." He declared that democracy means that every American should have counsel in civil legal proceedings. The recommendation was unanimously adopted.

Other Recommendations
Recommendation 102, proposed by the Commission on Civic Education and the Separation of Powers, was unanimously adopted. The recommendation endorses increased civic education in schools and communities.

Recommendation 103, offered by Tort Trial and Insurance, was withdrawn. The chair of the section stated, "To say that the issue of federal preemption has proved to be provocative is an understatement," citing the many opinions she heard from critics and proponents of the recommendation. She stated that a task force is being created to provide a forum to further debate this issue.

Recommendation 106A, sponsored by the Section of Legal Education and Admissions to the Bar, concerned pro bono opportunities for law students. It was withdrawn due to questions regarding the definition of "pro bono."

Recommendation 107, proposed by the Criminal Justice Section, considered whether to adopt the black letter ABA Criminal Justice Standards on DNA Evidence. It was unanimously adopted.

Recommendation 108A, urging the ABA to adopt principles for the Homeless Court Program, was adopted. Recommendation 108B urged that the definition of "homeless person" include "individuals who lack a fixed, regular, and adequate nighttime residence including those who are sharing the housing of others due to loss of housing, economic hardship, or similar reasons, and those who are living in motels, hotels, or camping grounds." This recommendation was also adopted.

Recommendation 109, proposed by the Standing Committee on Substance Abuse, urged all legislative bodies and agencies to require insurers to provide coverage for alcohol and drug abuse treatment programs. The recommendation was adopted.

Recommendation 110, sponsored by the Commission on Domestic Violence and co-sponsored by eight other entities, urged governments "to enact or amend domestic violence civil protection order statutes that provide protection to victims" unmarried to the perpetrator. The recommendation was adopted.

Recommendation 112B, sponsored by the Task Force on Access to Civil Justice, detailed ten proposed principles describing a system for the delivery of civil legal aid. The recommendation was adopted.

Recommendation 113, proposed by the Advisory Council on Diversity in the Profession and 71 co-sponsors, urged greater efforts to help minorities advance within the pipeline to the profession. Past and present ABA presidents, including Dennis Archer, Michael Greco, and Karen Mathis, supported the proposal. The recommendation was adopted.

Recommendation 116, proposed by the Standing Committee on Federal Judicial Improvements, urged Congress "to permit discretionary review by the Supreme Court of the United States of decisions rendered by the United States Court of Appeals for the Armed Forces that deny petitions for review of courts-martial convictions or deny extraordinary relief." The recommendations was adopted.

Recommendation 118, offered by the Commission on Law and Aging and twelve other cosponsors, urged licensing entities to establish guidelines for inactive, unlicensed, and retired attorneys to render pro bono service according to the rules established by that licensing entity. The proposal was adopted.

Recommendation 119, offered by the Administrative Law Section, urged "Congress to amend the Lobbying Disclosure Act of 1995 to extend the registration and reporting obligations with respect to lobbying coalition membership and grassroots lobbying." The proposal urges greater disclosure of contributions to associations and coalitions, particularly those who donate to grassroots campaigns. The resolution urges greater transparency in reporting, and does not impose any new restrictions on expenditures. The resolution passed.

Karen Mathis Press Conference
Karen Mathis, who will become the ABA president at the conclusion of the Annual Meeting, detailed her vision for the coming year. She outlined three priorities. Her first was the "Youth At Risk" initiative, in which she would urge increased attention and service to the youth of America, particularly those who were entrenched in the juvenile and criminal justice systems. Her second initiative is the "Second Season of Service," urging retiring baby boomer attorneys to devote 50 hours of pro bono service per year. To facilitate this, the ABA would create the "Atticus Network" as an online resource to community service and other volunteer opportunities. Her third initiative would be promoting the rule of law. In September, the ABA would co-host a conference with the International Bar Association to discuss issues such as human trafficking, economic development, corruption, an independent judiciary, the environment, women's rights, and corporate responsibility.

Mathis addressed three issues that the House of Delegates will consider. She endorsed two recommendations concerning protecting attorney-client privilege. Mathis will speak in favor of these recommendations to the House. However, when asked if she endorsed the findings of the ABA presidential signing statements task force, she declined to do so. She declined to give her personal view because, as president, she would take a "representative view," and it would be her "duty and honor to support that policy in the next year." A reporter also asked her about the proposed diversity standards for law schools. While expressing her support for a diverse profession, she would only reveal that she looked forward to a robust debate on the issue in the House of Delegates.

Michael Greco's Farewell to the House of Delegates
"The ABA has never been stronger or more well admired than it is today," according to ABA President Michael Greco in his concluding remarks to the House of Delegates. He particularly praised the Association's diversity outreach to minorities and the disabled. He also praised the ABA's rule of law programs and outreach to international bar associations.

Greco heralded his many initiatives of the past year, including his "Renaissance of Idealism" initiative, the ABA Commission on Civic Education and the Separation of Powers, and the "Access to Justice" Commission. He stated, "I believe the establishment of a right to counsel in those civil matters that threaten a poor person's legal need is a defining issue for the justice system and the defining issue for our profession and this nation in this century... The promise of equal justice and equal access to justice in all of America demands that we address the unmet legal needs of 50 million poor Americans."

Greco also praised the Standing Committee on Federal Judiciary's work in the past year, singling out its chairman, Stephen Tober, who received a standing ovation. Greco noted, "As we all witnessed, the Committee received the accolades of the entire Senate Judiciary Committee." Greco noted that two weeks ago, he responded to an "irresponsible" Wall Street Journal editorial criticizing the ABA Committee. Greco declared he was "tired of such personal attacks that detract and distort what the ABA is doing to ensure an independent judiciary for this country. The ABA will not allow any interest group or ideologue or extremist" to interfere in its work to promoting an independent judiciary.

Greco discussed two ABA task forces concerning executive power. Greco stated, "The greatest responsibility that all lawyers share is to safeguard the rule of law. The ABA has played a leading role monitoring the dangers proposed secret spying on Americans that violate the Fourth amendment and signing statements that violate the separation of powers." He thanks Neal Sonnett for his work in chairing two "bipartisan and expert" task forces. Greco stated, "The new policy has enabled the association to speak out about the Administration's duty to follow the clear mandates of FISA when engaging in electronic surveillance in the United States. The ABA is clearly making a difference in this issue. Numerous senators such as Ted Kennedy and Arlen Specter have praised the ABA's policy... We must continue to advocate strongly for retaining the Fourth Amendment protections of FISA."

He echoed his earlier support of the "bipartisan, unanimous" findings of his presidentially-appointed task force of Presidential Signing Statements and the Separation of Powers. He declared the findings presented a "common sense" recommendation to "prevent a constitutional crisis. This is not about partisan politics, but protecting the separation of powers and checks and balances which have sustained our republic for more than two centuries." In closing, Greco reiterated that torture, secret surveillance, denying legal representation to detainees, and disrespect for the separation of powers are not partisan issues.

Special Panel: Liberty vs. Security
Catherine Crier of Court-TV moderated a panel before the House of Delegates debating "Liberty vs. Security." Crier related her concerns from a media perspective. She asked the panelists what they thought the "war on terror" means. Professor John Yoo, of Boalt Hall School of Law and formerly of the Department of Justice, stated "We are at war. The thing that is different is the nature of the enemy. The enemy is not a nation-state, but a terrorist network for the first time that can inflict the kind of violence that previously only could be used by a nation-state." He emphasized we are at war with the al Qaeda terrorist network and nations supporting al Qaeda. Al Qaeda should not be treated differently because it is not a nation.

Neal Sonnett, who chaired the ABA task force on enemy combatants, responded that he "always get[s] a little concerned when we attach labels. I was concerned when we called our struggle against drugs as the 'war against drugs.'" Although we are struggling to defeat terrorists, to call it a war against al Qaeda is too narrow. He noted that there were terrorists other than those in al Qaeda. Sonnett expressed his concern about the indefinite duration of the war, stating, "If the president has greater powers in the time of a war that the president himself has told us is never going to end, I begin to worry about what's going to happen to civil liberties and constitutional rights in this country."

McGeorge Dean Elizabeth Rindskopf-Parker responded, "We are in the middle of a paradigm shift." It isn't liberty vs. security, but "liberty and security." Yoo disagreed, stating there is a tradeoff between liberty and security. For example, after 9/11, detention without criminal charges occurred, which "is certainly a restriction of civil liberties." The question should not be one of having to restrict civil liberties, but of "how much is enough?" He mentioned that similar restrictions occurred earlier in America's history, such as FDR's wiretapping, the detention of Japanese in World War II, and Lincoln's military commissions. Only about three Americans total were being held without trial. In light of this, one should look at magnitude and long-term effects. For example, while there were serious restrictions of civil liberties in the Civil War and WWII, those periods were followed by great gains in civil liberties.

Sonnett disagreed with Yoo, stating that, if one looked back at WWII, it took fifty years for the U.S. to apologize to the Japanese. He claimed it was not accurate to draw a distinction between the number of Japanese detained and the number of U.S. citizens detained without charges when there were hundreds detained at Guantanamo without due process or trial. He maintained the Administration was stonewalling despite the Supreme Court's ruling. The war on terrorism should not be used as an excuse opportunity for the Administration to create more power for itself. He maintained the Administration could be effective in the war on terrorism while retaining traditional constitutional processes and permitting due process rights by "enemy combatants."

Dean Rindskopf-Parker claimed that comparisons to World War II and the Civil War were not helpful as the situations were "very, very different." While she was not positive that federal courts were the best venue for deciding fates of al Qaeda, she thought the U.S. needed to rethink the ways in which security structures work. She scolded the Administration for not permitting a robust enough discussion of these issues. In particular, the country needed to embrace and engage the U.S. Islamic community.

Sonnett contended that few members of Congress were fully aware of all of intricacies of the surveillance programs. Many Senators back FISA as the exclusive means of surveillance against American citizens, with the Fourth Amendment checking the powers. If FISA isn't adequate, the Administration should ask for amendments, as it did when PATRIOT Act was adopted. Regarding military commissions, Sonnett noted that the ABA has never taken the position that they should not exist, although they should be conducted under the Uniform Code of Military Justice.

Professor Yoo discussed some of his concerns about FISA. He maintained it was outdated, as it was adopted in the 1970s during the Soviet era. He suggested we need to modernize this law, as today's enemy relies on different technologies. And he noted that we do not have any armed forces to locate. Electronic surveillance is needed as this is a different kind of war. He argued the President could not always publicly reach out to Congress, as it would tip off the enemy about his strategy. He also sharply criticized the Supreme Court's Hamdan decision. The Court did not consider the long history of military commissions, which were used in almost every war in U.S. history. He stated that it was "remarkable that the Supreme Court is interceding in war time to force the President and Congress to act in a way it prefers."

Sonnett claimed that the Administration's tactics to investigate al Qaeda were not that large of a surprise. The enemy could guess what investigatory tactics it was engaged in. If the U.S. has legislation to regulate domestic surveillance, that law must be followed. As to Hamdan, the decision should not have been a big surprise in light of Rasul and Hamdi.

Yoo responded that there were sometimes benefits to secrecy, and the Court should allow Congress and the President to work things out without much interference or deference. Sonnett declared that no one was suggesting open hearings on details of the surveillance program. Sonnett maintained we should not forget why we passed FISA in 1978-it was because the government agencies were abusing electronic surveillance capabilities. The scandals provoking the Church Committee's establishment resulted in an agreement between Congress and the President that some laws were necessary to protect the American people and government employees when they were engaging in intelligence activities to ensure they were not breaking the laws of the U.S. He alleged that the "torture memos" and interrogation techniques were attempts to insulate Americans from possible prosecution under the War Crimes Act. The Supreme Court, however, ruled that Geneva protections do apply.

An audience member questioned whether the constitution "fades" during wartime. Professor Yoo emphasized that he did not want to be interpreted as arguing that the constitution fades in wartime, but it creates a different system in making decisions, as the President makes decisions at times based on his powers as Commander-in-Chief. He clarified that there are checks to this power; for example, Congress retains the purse strings to fund operations.