The Federalist Society

Bar Watch Bulletin February 6, 2004

2004 ABA Annual Midyear Meeting: controversial U.S. terrorism panel, Kennedy Commission

February 6, 2004

LIVE FROM THE ABA MIDYEAR IN SAN ANTONIO

Each year ABA WATCH attends the annual midyear convention of the American Bar Association in order to provide information about the organization's activities. The following is what transpired on Friday, February 6th:

***The International Impact of US Counter- Terrorism Initiatives across the Globe: Top 8 Reasons for Why the U.S. is a Pig?

The ABA Individual Rights and Responsibilities Section discussed the how United States is perceived globally from an international human rights perspective. They also addressed the use of military tribunals and the legality of detainees at Guantanamo Bay. Moderator and international human rights professor Douglass Cassel, Jr., gave numerous reasons, through observations he has made in discourse with other international professors, lawyers, and judges, as to why the United States is seen as being on the wrong side of human rights law.

"1. It is mind-boggling that the U.S. would allow detention without due process.
2. Why would we use military tribunals? Do we not have enough faith in our federal judicial system?
3. Secrecy - detainees have no identity. We've abandoned transparency and openness.
4. There is a false perception that we are soft on terror. We just ship detainees to other countries who have no policy on torture. We have other countries do our dirty work.
5. Wars in Afghanistan and Iraq had a lot of civilian casualties.
6. The U.S. went to war without the approval of the United Nations and we aren't bound by law.
7. We've given aid to oppressive government such as Indonesia. As long as you cooperate with the war on terror we will give you funding.
8. Opposition to the ICC. If the ICC is such a problem why are other countries and democratic countries comporting to the ICC?
9. Why does the U.S. treat international travelers so wearily? Fingerprinting Phd. students."

There was no one sympathetic to the Administration's position on the panel. The moderator tried at times to lay out the Administration position, but often ended up being critical as well. For example: "One argument for supporting the detainment of enemy combatants without rights to counsel is that this is a time of war. If we allow them to get back on the streets, they are going to turn around and start shooting at us again. The problem with this argument is that we can't define this as a war."

***ABA President Dennis Archer gave a press briefing today. Here are some of the topics that were discussed:

-- "The Kennedy Commission was created to reform a prison system that isn't working. We've have seen state budget deficits that have caused justice to be delayed, postponed and denied. Trial courts in Oregon have shut down on Fridays and the state of South Carolina is not going to prosecute domestic violence cases because of the lack money. We need to reduce minimum sentencing to give judges more discretion. We are looking into whether governors are using their ability to parole or commute sentences. The ABA has never taken a position on whether or not the death penalty is good or bad. We have supported moratoriums." Professor Steven Saltzberg then chimed in and spoke more specifically about the Commission, which he chairs. He stated that there are some "scary statistics" out there. He stated that only the Attorney General and the Federal Government favor the current federal sentencing guidelines. The problem, as he has heard from experts in the field, is that there could be "institutional racism." "The disparity between the total population and the prison population is incredulous." Prof. Salzberg cited the statistic that, in Texas, the overall population is 12 percent African- American, but the prison population is 40 percent.

--On the question of medical malpractice liability reform as proposed by the President, Mr. Archer thinks that we should leave it up to the states.

--On the treatment of Guantanamo Bay detainees, President Archer praised the Bush Administration and said that lawyers at both DOJ and the White House Counsel's office have done a good job of keeping us safe. "But we, as attorneys and members of the ABA, have an obligation to protect and defend the Constitution and that is where we (the ABA and the Administration) have a disagreement. Now there has been recently a relaxation of some of the rules that we had found to be contentious and we are so delighted. Lawyers can now defend their clients." President Archer was then asked by a person from the media if the ABA would be on the sideline when this goes to the Supreme Court. He responded that he did not know if the ABA would file an amicus brief, but that it would definitely be on the sideline.

***Heard on the Street.

The American Association of Law Deans continues to place pressure on the AALS to reduce political advocacy. One law dean reported to ABA Watch that a number of deans complained at today's Association meeting that the AALS is too preoccupied with encouraging law schools to be critical of the military's policy on homosexuality. The schools are required to allow military recruiters on campus because of the Sullivan Amendment, but the AALS urges law schools to be critical of the military's policy.


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