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Bar Watch Bulletin February 12, 2006

Katrina, Domestic Surveillance, JD Merryman Play
February 12, 2006
The American Bar Association's Midyear Meeting takes place in Chicago from Wednesday, February 8 until Monday, February 13. Once again, ABA WATCH will be reporting live from Chicago. Today, we offer our first report.

Post Katrina Catastrophe! Ecosystem, Structural, Environmental, and Insurance Law Challenges Panel

Cynthia Drew, an Associate Professor in the School of Law and the Center for Ecosystem Science and Policy at the University of Miami, opened this Friday morning panel by giving the audience a synopsis of the progression of Katrina from a storm near Florida to the eventual hurricane it became near the Gulf coasts. She next showed the attendees pictures she had taken of the hardest-hit sections of New Orleans and described the structural devastation people are continuing to face in the wake of that storm. Referring to the federal response, she declared: "The situation would have been much different had it been another 9/11 or biological attack." Later, she stated, "If there is any Homeland Security to be had in the United States, the Feds have to come in first and the quickest in the event of a catastrophe such as Katrina."

Insurance industry attorney and panelist Janet Belkin next discussed the background of flood insurance. Ever since 1968, when the National Flood Insurance Act was passed, she said that 19,000 communities around the U.S. have participated in the National Insurance Program, which makes Federally-backed insurance available to homeowners. However, Katrina presents numerous problems that the industry has never faced before, most notably the fact that there seems to be no clear definition of what actually caused the damage or who was to blame. Referring to proximate cause, she asked: "Was it the wind or the water that caused the damage? Also, was the damage directly or indirectly affected by the flooding?" Bringing up the question of fault, she asked, "Was it FEMA? Was it the Army Corps of Engineers? It is going to take a long time to be mitigated." In making an assessment of who was actually going to cover the expenses caused by the damages, she feels that, given the poor track record of courts in dealing with insurance companies (who generally favor policy-holders), her industry will most likely be the one footing the bill when it comes time to pay up.

Michael Greco Press Conference

ABA President Michael Greco held a press conference Friday afternoon and took the opportunity to provide his thoughts on the current situation regarding terrorist surveillance and wiretapping. Some interesting items from his comments:

--Greco cited a poll conducted by Harris Interactive and commissioned by the ABA, which suggests that "77 percent of Americans reject the president's claim that he alone has the power to suspend constitutional freedoms without any check or balance. Of that number, 52 percent said that in the fight against terrorism, the President of the United States should not be able to unilaterally suspend constitutional freedoms. And an additional 25 percent said that the president can do so only with the authorization by a court of law or Congress."

--Greco said that he was "heartened" by these results and does support the "aggressive deterrence of terrorism," but he feels "our laws and our Constitution give our government ample power to act swiftly in times of danger, while also protecting our basic freedoms. It's very encouraging that Americans understand what's at stake, and insist on preserving that balance."

--President Greco then detailed the findings of the ABA Task Force on Domestic Surveillance in the Fight Against Terrorism, a "bipartisan group" that he appointed in January to "explore the very troubling constitutional issues raised by unsupervised domestic eavesdropping." A recommendation prepared by the Task Force will be one of many considered by the House of Delegates on Monday.

Here are some of the Task Force's findings:

--- "America has a system for security-related eavesdropping that works. The president cannot indefinitely ignore the system. He must respect the roles of Congress and the judiciary in protecting national security."

---"The President can , in moments of extreme emergency, take extraordinary actions to protect the American public-a power granted under his or her capacity as commander in chief." However, as time progresses, "the president must seek authority for such actions from Congress-just as other presidents have historically done."

---"Domestic eavesdropping must continue to be done within the framework of the Foreign Intelligence Surveillance Act. . . . In cases where this law has not kept up with changing threats. . .the president should ask Congress to amend it. Indeed Congress has already amended this law four times since 9/11, and has consistently shown itself willing to adjust the law to protect American's safety."
Referring back to the Harris poll, Greco said, "Average Americans and legal scholars alike agree that the awesome power of government to penetrate citizens' most private communications must not be held in one set of hands. To prevent the very human temptation to abuse this power, there must be checks and balances, in the form of oversight by courts and Congress."

Greco "reject[s] the false choice that is being offered to Americans, [that] they must give up their liberties to have security."

Greco closed by saying: "This is the second time in a year that we are seeing a serious challenge to the separation of powers. Last year, our federal judiciary came under attack from some in Congress, who threatened impeachment and funding cut-offs to force judges to toe a certain ideological line." "As the domestic surveillance issue shows, when people don't understand their rights, it's easy for others to take those rights away. An educated and engaged public is the best defense of our nation's freedoms."

JD Merryman Play

In an afternoon session, a play ("A story of greed, oppression, and suspension of the rule of law") authored by Judge Paul B. Handy in 2004 titled "Merryman" was performed by seven current and retired members of the judiciary. It was followed by a discussion led by Professor Bert Lockwood of the University of Cincinnati College of Law. The play is based upon true incidents from the Civil War and focuses specifically on the arrest and imprisonment of Merryman at Fort McHenry Garrison in Baltimore. A known Southern sympathizer, Merryman was a Maryland landowner who confronted federal troops that were passing through Baltimore on April 19, 1861. He was held on suspicion of treason but without being charged or given access to legal counsel. A petition for a writ of habeas corpus was filed in the federal Circuit Court. U.S. Supreme Court Chief Justice Roger B. Taney supervised the case. When he found good cause, he ordered the federal garrison to send Merryman for a trial "as to the legality of his detention." The commanding officer at the garrison would not allow it because President Lincoln had suspended the writ of habeas corpus. Taney declared in an opinion that the president had no power to do so. The remainder of the play focuses on the legality of t6he action as seen through conversations between Taney and President Lincoln. President Lincoln eventually freed Merryman after the crisis in Maryland ended.

Some of the conversations between Taney and Lincoln were quite poignant given the current situation in the world. Alluding specifically to the issue of Hamdi v. Rumsfeld (issue of U.S. Citizen held as an enemy combatant) and detainees at Guantanamo Bay, but referring to the Merryman case, Taney said that the suspension of the writ is in the list of prohibited powers unless the safety of the public requires it. By refusing to agree to Taney's request to produce Merryman, Taney argued that Lincoln's actions would have the effect of "a slippery slope that leads to despotism and tyranny. Tyrants want to see us fail; it would justify their tyranny." Lincoln declared that there is "a compelling national interest in this matter," and that "I have exercised a privilege."

Professor Lockwood opened the discussion after the play by stating that "the difference between countries with good human rights records and those with bad ones is an independent judiciary." He asked the audience what the legal status of the war on terrorism was. He feels that it is different from the past because much of its focus is on individuals and not foreign nations. Referring to actions taken by President Bush, Lockwood said: "He essentially created a no-law zone in Guantanamo, where the U.S. Constitution does not reach." "He has the ability to keep them there indefinitely."

However, Professor Lockwood noted that the military commission created by President Bush to determine the status of the prisoners is not unlike the situation presented in Ex Parte Quirin, 317 U.S. 1(1942), "a habeas decision where Supreme Court upheld the conviction of eight Nazi saboteurs, apprehended in the U.S., by a military tribunal."

When asked about the current FISA situation, Professor Lockwood said: "There should be concern about giving the power of eavesdropping solely to the Executive Power."