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Bar Watch Bulletin February 9, 2004

2004 ABA Midyear Meeting: Spirit of Excellence Awards, Universal Jurisdiction
February 09, 2004
Midyear Meeting Update

***Defense of Indigents

The ABA held a panel discussion to address the lack of sufficient legal representation of indigents in this country. The panel focused attention on lawsuits being brought by human rights groups in Georgia, for example, calling for the judicially-ordered creation of public defenders' offices to help assist the indigent population. In Georgia alone, the ABA has figured that it will cost $60 million a year and a staff of 450 to provide adequate legal representation.

***Spirit of Excellence Awards

Each year the ABA celebrates the "efforts and accomplishments of lawyers who work to promote a more racially and ethnically diverse legal profession" by presenting awards to various lawyers who "excel in their professional settings."

ABA President Dennis Archer opened the awards ceremony by congratulating each recipient and stating that he was happy to see these wonderful people receive these awards and that "they are going to help move this country where we need to be." He singled out recipient Bill Lann Lee, noting that he had opened so many doors and helped in the fight for civil rights as Acting Assistant Attorney General for the Civil Rights Division. He then went on to say that "President Clinton chose wisely."

In introducing Mr. Lee, the awards lunch master of ceremonies focused on the republican Senate's unwillingness to confirm him for the civil rights post at the Justice Department. The basis of Senate opposition to Lee was described as his being "too zealous for civil rights and equal justice." Referring to President Bush's recent recess appointment, the MC closed his introduction of Lee by stating: "I can give him praise without Executive recess action."

Mr. Lee took the podium, began with thanks, and then noted that his work of 20 years at the NAACP Legal Defense Fund was wonderful and just "an extension of what this Commission (ABA Commission on Racial and Ethnic Diversity in the Profession) stands for." He spoke quite a bit about racial preferences. "Diversity has allowed a kid to go from barely speaking English in kindergarten to a 12th grader with the ability to choose to go anywhere to college. Without Yale's policy, I wouldn't be here. Those institutions have made us who we are. The Supreme Court validated affirmative action in higher education and that was a wonderful victory. But it is also a challenge. We have 25 years to finish the job."

Awardee Mary Frances Berry did not appear at the awards, as she was ill.

***Debate Brewing over ABA Universal Jurisdiction Resolution

ABA House of Delegates members are preparing for a spirited debate about a resolution proposed by the Individual Rights and International Law Sections as well as the Human Rights Center and the Standing Committee on Law and National Security, among others. At Section meetings throughout the convention this weekend, the resolution sponsors were busily trying to rustle up additional co-sponsors for the proposal, which would, for the first time, put the ABA on record as supporting the concept of universal jurisdiction.

The issue first arose at the ABA annual meeting in August 2003, when the National Security Standing Committee offered up a proposal that would have declared that American military personnel should not be subject to the assertion of universal jurisdiction by other nations for war crimes. The underlying premise for that proposal was that the American military justice system was well-equipped to prosecute our own military personnel for such atrocities, and that many other systems around the world due not have the same safeguards that we have in our criminal justice system. But the resolution was tabled after Individual Rights and Criminal Justice Section officers threatened to muster enough votes to defeat the proposal. That activity led to a Wall Street Journal editorial observing that the Association adopted several resolutions seeking to protect the due process rights of al Qaeda suspects and detainees, but not those of American servicemen.

Negotiations ensued in the months following, and the resolution now before the ABA represents a compromise between the Standing Committee on National Security Law and the Individual Rights Section. Unlike the earlier resolution, the current version supports the concept of universal jurisdiction, though it also places some limits on its assertion. As with the earlier resolution, the current proposal does state that military personnel should not be subject to universal jurisdiction, but with the qualifier that certain procedures be followed.

Debate about the proposal amongst ABA Sections over the weekend focused on the idea that universal jurisdiction can be invoked for serious international crimes recognized by customary international law. Critics maintain that the American legal tradition and our nation's commitment to democratic lawmaking do not countenance a reliance on such "criminal common law" adopted outside the context of a legislative process. These critics maintained that our system should not and cannot apply such customary international law to prosecute international crimes, and that failure to do so under the resolution would invite the assertion of universal jurisdiction by other nations.

***Still Segregated? Race in America's Schools

National Public Radio was here to broadcast a debate between Harvard Law Professor Charles Ogletree and radio talk show host Armstrong Williams on the legacy of Brown v. Board of Education. One of the questions presented was whether we should be celebrating the 50th anniversary of Brown. Mr. Williams said that the decision was flawed from the beginning. According to Williams, "You had a dumbing-down of the black kids because you essentially told them that you can only learn if you sit next to a white kid." Professor Ogletree was much more positive about the decision, though he did agree that the decision had flaws.

NPR turned to the audience for questions. One gentleman stated that the slave-mind still existed. "White people have a responsibility to correct what they have done to Blacks." Mr. Armstrong disagreed: "No one in this audience can be held accountable for slavery. You have to tell your kids that there are going to be problems throughout their lives but that they can achieve their goals through hard work." The problem is that Blacks would rather "focus on people who don't make it." Another questioner asked whether or not we should replace state education funding with federal funding. Both agreed but noted that it would never happen. The last question was whether or not the United States will ever be fully integrated. Mr. Williams said he didn't know, and observed: "75% of Americans aren't racist. It is the 25% racist hustler machine that keeps racism alive." Professor Ogletree suggested that we are going to need a lot more than 25 years to reach greater integration. He further suggested: "We will always be segregated as long as there is a USA because in the USA we have choice."