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Barwatch Bulletin February 13, 2008

House of Delegate Action
July 02, 2008
CENTER FOR HUMAN RIGHTS LUNCHEON

The Center for Human Rights' House of Delegates Luncheon featured Albert J. Mora, the Vice President and General Counsel-International, Wal-Mart Stores, Inc. As general counsel of the United States Navy, Mora challenged the Department of Defense not to implicitly or explicitly sanction mistreatment of Guantanamo detainees as part of the War on Terror, arguing that such policies could lead to acts of torture "of the kind later exposed at the Abu Ghraib prison in Baghdad, Iraq."

ABA President Bill Neukom called Mora "a hero" for his efforts, praising him as "principled, articulate, and steadfast." He added that Mora's concerns were "prescient" and that Mora was a "staunch advocate" for human rights around the world.

Mora thanked the organization for its "consistent support" for the rule of law since 9/11. He added that the ABA worked to make sure "we did not act unwisely" after the attacks and contrary to our values. He acknowledged that Al Qaeda's attacks hurt us deeply and that they would attack us again if able. He described the tension, however, as we are asked to balance our values against our own security. He declared, "We have departed from our values during this war on terror."

Mora stated that we must "recognize our own capacity for mistakes." According to Mora, the greatest damage came from "self-inflicted wounds" that the U.S. had suffered by its adoption of cruelty as an acceptable measure. Mora defined cruelty as the "application of all pain that we wish to prohibit" and not just extreme pain. Thus, cruelty, by this definition, encompassed not only outright torture but also other measures that degraded "human dignity." He also claimed that a policy of cruelty "has made us weaker."

Mora described a New Yorker story about Mohammed al-Qahtani, the "20th hijacker," who was subjected to "harsh interrogation techniques" when imprisoned at Guantanamo Bay. Mora stated that the U.S. had authorized harsh interrogation techniques and, with the recent admission of waterboarding, had authorized torture. Mora stated the government offered five reasons why this cruelty was permitted. First, the interrogation was necessary for the U.S.'s safety. Second, no law forbids this sort of interrogation. Third, commander-in-chief power included the discretionary authority for cruelty. Fourth, cruelty would not adversely affect our values or the international legal structure. Fifth, no one would care if the cruelty were discovered. Mora emphatically declared that all of these reasons were untrue.

Mora warned that "for as long as these policies are in effect," then our government has adopted a systematic use of cruelty. According to Mora, the use of cruelty is incompatible with the base of our Constitution. If we deemed cruelty as acceptable, we would be saying "our Forefathers were wrong" about human dignity. Indeed, Mora cautioned that the foundation of our own rights would "begin to crumble" as the state would decide how much cruelty to inflict upon people.

In addition to damaging our national integrity, Mora warned that cruelty would also damage our foreign policy. Since World War II, our foreign policy had been grounded on the rule of law and on human rights principles. The Nuremberg trials, the Geneva Conventions, and the German Constitution were all examples of this human rights-based foreign policy, which has returned massive benefits to the United States. In addition to damaging these achievements, Mora argued, the U.S.'s adoption of cruelty has been "devastating" as it hurt international human rights, increased prisoner abuse, decreased public respect, and left U.S. policymakers vulnerable to civil and criminal legal sanctions overseas.

More also contended that military actions needed to be subordinated to our overall political strategy. Terrorist cells are active in dozens of countries that have varying frameworks of the rule of law. Ideas matter, and American ideas need to be superior to the ideas of the country's enemies. Additionally, we should rally those who share our values to convince potential terrorists that our values are superior. He added that "we can't fight this type of war alone." Use of cruelty alienates us from our European allies. Our allies will cooperate less with the Americans, or decline to cooperate at all in fear they would be seen as accomplices. European politicians also feared paying the political price in supporting the United States, as Tony Blair did. Furthermore, the sympathy generated post 9/11 was eroded because of policies like Abu Ghraib.

On the tactical level, Mora maintained that the leading causes of U.S. military deaths are Abu Ghraib and Guantanamo, as they inflamed terrorist enemies. Furthermore, our Allies hesitated to help our military operations or refused to train with U.S. troops because of our use of cruelty. Mora also advised that by treating detainees harshly, American stiffened the resolve of enemies to fight "to the last bullet."

Mora noted that Attorney General Mukasey, in recent Congressional testimony, refused to condemn torture. Mora contended that this would embolden enemies to torture U.S. soldiers with impunity; that rogue cops would feel free to be harsh with suspects; and that despots would feel free to torture their political enemies. He argued that the U.S. should reject the "policy of cruelty," and that the recent defense of waterboarding is an "extraordinary" assertion of presidential power.

In the years since 9/11, Mora claimed that the U.S. government's actions have shattered the national consensus regarding cruelty which "makes our job harder." We must develop a "consensus against cruelty." This issue is not just about what happens in an interrogation room, but about understanding that "cruelty will destroy the very values we seek to protect."

ABA HOUSE OF DELEGATES

Recommendation 10A, sponsored by the New York State Bar Association, "urges federal, state, territorial and local legislative bodies and governmental agencies to develop and assess innovative long-term care programs such as the 'Compact for Long-term Care,' as a reasonable and fair solution to long-term care financing." Proponents called the healthcare system in America unfair and discriminatory towards individuals with certain diseases. The House of Delegates approved an amendment that clarified that the long-term care programs in question would not replace but supplement Medicaid. The recommendation was adopted.

Recommendation 101, sponsored by the Standing Committee on Environmental Law, Section of Environment, Energy and Resources, "urges federal, state, territorial and tribal governments, when considering and approving legislation, regulations and policies, to preserve and enhance the benefits that people derive from ecosystems, with due regard for economic, human and social impacts." The Recommendation was revised to urge the United States government to "engage in active discussions and to negotiate and ratify treaties or other agreements" with Canada and Mexico to address cross-border ecosystem issues. No delegates spoke in opposition to the proposal. The Recommendation was adopted.

The Section of Administrative Law and Regulatory Practice sponsored Recommendation 102A, which "urges each state to assign the redistricting process for congressional and legislative districts to an independent commission, leaving to each state the precise manner of configuring such commission and the specific redistricting criteria to be applied." An amendment added the District of Columbia and U.S. territories to the Recommendation. Proponents argued that the proposal would make redistricting more "fair and transparent" and that independent commissions would achieve "greater public satisfaction and confidence." Proponents also explained that the current systems of gerrymandering favored incumbents unfairly. Delegate Scottie Welch, speaking in opposition to the Recommendation, questioned the "germaneness" of the motion. He called it "presumptuous" of the ABA to take redistricting away from the states and the people. The Recommendation was adopted with some opposition.

Recommendation 102B, sponsored by the Section of Administrative Law and Regulatory Practice, "urges national, federal, state, tribal, territorial and local bar associations, in cooperation with state and local pro bono, lawyer referral, and legal aid programs, to establish programs to assist or provide legal representation for victims of identity theft who need assistance in recovery from the crime." The recommendation was adopted.

Recommendation 105A, sponsored by the Criminal Justice System, "urges federal, state, local, tribal and territorial governments and their prosecutors to vigorously prosecute cases of elder abuse, neglect and financial exploitation by the creation of special elder abuse units within the prosecutor's office or by the designation of a specially trained prosecutor to handle elder abuse cases." Nina Marino, who spoke on behalf of the Recommendation, compared elder abuse cases to those of juveniles, as they are both complicated and unusual. The Recommendation would "retain the respect" for the elderly in the criminal justice system. Recommendation 105A was adopted with no opposition.

The Criminal Justice Section also sponsored Recommendation 105B, amending "Rule 3.8 of the ABA Model Rules of Professional Conduct to identify prosecutors' obligations when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense of which he was convicted." Stephen Saltzburg, speaking on behalf of the proposal, said that the Recommendation "was not an attempt to put burdens on prosecutors" and that they will work with the Department of Justice. The Recommendation was approved.

The Criminal Justice System likewise sponsored Recommendation 105C, urging "federal, state, tribal, local and territorial governments to authorize and implement sentencing laws and rules of procedure that both protect public safety and give mitigating consideration to youthful offenders." Delegate Nina Marino contended that the "current climate" that necessitated Recommendation 105C would allow consideration of mitigating circumstances in the prosecution of juveniles, including the prevalence of "peer pressure." There were no speakers in opposition. The measure was approved with a small amount of opposition.

Recommendation 105D, also sponsored by the Criminal Justice Section, "adopts the black letter ABA Criminal Justice Standards on Prosecutorial Investigations, dated February 2008 to supplement the ABA Criminal Justice Standards on the Prosecution Function." Stephen Saltzburg, speaking in support of the Recommendation, acknowledged that "most of you probably didn't read" the new standards. The resolution was approved with no opposition.

The Section of Individual Rights and Responsibilities sponsored Recommendation 106, which "encourages efforts to increase public understanding of the Establishment Clause and the Free Exercise Clause (the 'Religion Clauses') of the U.S. Constitution as they apply in the public elementary and secondary schools and encourages bar associations to help school officials to better understand and apply the Religion Clauses." IRR Delegate Elisia Frazier explained that the ABA needed to "assume its civic responsibility to help people understand their rights" with respect to the "Religion Clauses." Schools are not a place for "religious indoctrination." She maintained that there was a lack of understanding concerning "well-settled" constitutional law regarding the Religion Clauses. A delegate from the Bar Association of San Francisco also supported the Recommendation. He described the primary schools as "the one mandatory" place where children were required to go. In this mandatory environment, he warned that children could feel like outsiders because of "coercive" religious indoctrination, and both teachers and textbooks can alienate students. Teaching religion in public schools, he warned, "causes tremendous violence in schools." The ABA should join efforts by groups across the country that opposed teaching religion, as opposed to teaching about religion. No delegates spoke in opposition. The recommendation was adopted with very little opposition.

Recommendation 107, sponsored by the ABA's Section of Family Law, "approves the Model Act Governing Assisted Reproductive Technology, dated February 2008, as appropriate legislation and recommends consideration and adoption of the Model Act by appropriate governmental entities." Recommendation 107 was adopted with no opposition.

The Section of Litigation sponsored Recommendation 108, which "urges Congress to enact legislation, like the Veterans Advocacy Act of 2007, which promotes the provision of legal services to veterans and members of the Armed Forces to assist them in obtaining the full range of health care, benefits and services to which they are lawfully entitled." The Recommendation was adopted unanimously.

Recommendation 109 was sponsored by the ABA's Section of Environment, Energy, and Resources and "urges the United States government to take a leadership role in addressing the issue of climate change through legal, policy, financial and educational mechanisms and to engage in active international discussions to address climate change, and urges Congress to enact and the President to sign appropriate climate change legislation." Lee DeHihns, the Section Chair, supported the resolution by stating that climate change was a real threat that needs to be addressed, and that the Recommendation was "entirely consistent with prior ABA policy and must be approved." Sheila Hollis of the District of Columbia stated that the Recommendation "cries out for adoption." No delegates spoke in opposition to the motion, and the Recommendation passed unanimously.

The Commission on Immigration sponsored Recommendation 111A, which "supports fee levels for immigration and naturalization benefits that are not so burdensome as to deter eligible applicants from filing and urges Congress and the executive branch to ensure that adequate funds are appropriated to enable U.S. Citizenship and Immigration Services to implement these fee levels." Mark Agrast, Chair of the Section, argued in favor of the Recommendation, claiming that many individuals were being "priced out of the market" and would be unable to pay the fees associated with immigration and naturalization. He contended that we have "established a means test" for citizenship, and that much of the fees were going towards Homeland Security costs not associated with naturalization. Past ABA presidents Michael Greco and Robert Grey supported the Recommendation, which was adopted with no opposition.

The ABA's Commission on Immigration also sponsored Recommendation 111B, which "supports the issuance of federal regulations that codify the Department of Homeland Security Immigration and Customs Enforcement National Detention Standards, and supports improvement, periodic review, and increased oversight of detention standards implementation in order to ensure that detained non-citizens and their families are treated humanely and have meaningful access to counsel and to the legal process." Mark Agrast also spoke in support of Recommendation 111B, stating that non-citizens should be treated fairly and humanely. The Commission has organized 105 visits to detention facilities, which have found "serious" violations in the Department's own standards. Similar findings have been found by other organizations. The measures recommended, according to Agrast, will address the great "shortcomings" in the Detention Standards. Another proponent claimed that "our system is broken," and that the Standards should be able to be forced as regulation. Stephen Saltzburg, speaking in favor of the Recommendation, compared the detention of non-citizens to that of Guantanamo detainees and that of enemy combatants. Past ABA Presidents Robert Grey and Michael Greco also supported the Recommendation. The Recommendation was passed unanimously.

Recommendation 112, sponsored by the Commission on Lawyer Assistance Programs, "adopts the Model Rule on Conditional Admission to Practice Law including the commentary, dated February 2008." Proponents argued that the Recommendation would allow graduates of law schools to "seek appropriate treatment" for substance abuse or mental disorders. The recommendation's commentary was revised to remove some passages related to confidentiality and conditional admissions to the bar. Former ABA President Michael Greco spoke in support of the Recommendation. He argued that if we did not allow law students to get treatment for substance abuse or depression, they would be "ticking time bombs," susceptible to suicide. Other supporters included past ABA presidents Dennis Archer, Robert Grey, and Karen Mathis. There was a motion to postpone voting on Recommendation 112 indefinitely; though a number of delegates voted in favor of the motion, it failed to pass. The Recommendation was adopted over a sizable opposition.

The Section of Legal Education and Admissions to the Bar sponsored Recommendation 113, which "concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in adopting Interpretation 301-6 (February 2008) of the Standards for Approval of Law Schools concerning the sufficiency of a law school's bar passage rate." A vigorous debate occurred. Jose Garcia-Pedrosa, a Florida attorney, stated that the Department of Education needed a mechanical formula for the ABA's accreditation of law schools. Garcia-Pedrosa added that the Recommendation "in no way" diminished the ABA's commitment to diversity. He warned, however, that if the ABA did not concur with the Recommendation, then the Education Department might not allow the ABA to continue its role as the accrediting agency for law schools. The Recommendation allows three avenues for law schools to be in compliance. He added that the Section would "monitor" the situation very closely. Robert Grey, speaking in favor of the Recommendation, explained the recommendation was carefully vetted. In his view, the ABA should be dedicated to preserving law schools that were committed to diversity and graduating great lawyers. The law student division and the secretary of the ABA minority caucus also supported the House's concurrence of the Standard.

Victor Marquez spoke in opposition to Recommendation 113, stating that it would adversely affect Latino and African American students. He claimed that there needed to be more empirical data for the Recommendation, and that bar passage rates did not have a high correlation to success as a lawyer. "The ABA is the most powerful legal" organization in the world and should take more time to work together to "finish this work in progress," according to Marquez. He concluded, "It is our duty to protect the interests of minority students." A representative from the Illinois Bar Association asserted, "The elephant in the room is the Department of Education" which is requesting this requirement. He feared that these actions could jeopardize the ABA's role in accrediting law schools. He added that, if the House concurs with the Recommendation, "We need to use the force of the American Bar Association" to monitor and potentially dismantle the Interpretation. National Bar Association President Vinita Banks also spoke against the recommendation. She hoped there would be continuing debate to shape a standard to promote the goal of increasing diversity. The Young Lawyers Division, portraying itself as the "conscience" of the ABA, also spoke out against the Standard. The House of Delegates voted to concur with the Section of Legal Education, despite some opposition.

The New York State Bar Association sponsors Recommendation 10D which "expresses support for and solidarity with the Pakistani bar and bench, and urges the immediate release of all detained judges and lawyers and calls upon the President of Pakistan to restore Pakistan's constitution, to reinstate Pakistan's Supreme Court justices and high court judges and to release all judges, lawyers and other people who were wrongly arrested during the state of emergency." Recommendation 10D was approved without opposition.

Recommendation 300, sponsored by the Commission on Youth at Risk, "urges the federal government, states, territories and tribes to revise laws, court rules, policies, and prosecutorial practices related to 'dual jurisdiction' youth (defined as those with juvenile 'dependency' cases that aid victims of child abuse or neglect, who are also charged with acts of delinquency)." The Recommendation was adopted.

ABA PRESIDENT BILL NEUKOM REMARKS
In remarks to the House of Delegates, ABA President Bill Neukom praised the work of the Association and the House, saying that "the decisions that come out of the informed deliberations" of the House reflect the sentiments "that come out of the legal profession of this country." Neukom cited three recently adopted ABA policies that have informed American policy: law student debt relief; the state secrets resolution; and policies on habeas corpus, due process, and detainee counsel, which influenced the ABA brief on Boumediene v. Bush.

Neukom also praised other ABA accomplishments beyond the work of the House. First, the ABA Standing Committee on the Federal Judiciary's evaluations of federal judicial nominees ensures "competent high integrity lawyers on the federal bench." Second, he praised the ABA's job accrediting law schools. Third, the ABA has ensured access to justice. Collaborating with state and local bar associations, the ABA promotes the rule of law throughout the country and the world. Legal aid and pro bono associations in the United States and volunteers throughout the world provide aid to the neediest in society.

Neukom then addressed highlights from the first part of the presidency. He discussed the ABA's efforts to restore the rule of law in Pakistan, focusing on the Three R's strategy (link to Friday's Barwatch). Neukom also cited the ABA's work to increase judicial salaries. Judges' salaries in real dollars have declined during the last few decades, Neukom noted, and their compensation should reflect the important work that they do. The ABA also worked for the restoration of the attorney-client privilege, which has been challenged by the federal government for the last few years. Neukom declared, "I am pleased to report that good bills in both houses" of government are being put forward "as we speak." Finally, Neukom praised the ABA's dedication to goals-based management.

Neukom concluded by highlighting major ABA goals going forward. First, the ABA was going to continue to work for diversity in law schools, the profession, and communities. There was still "a lot of work" to achieve equality. The ABA will also sponsor a legal education summit to encourage "mutually beneficial opportunities" between different sectors of the law. In April, "ABA Day" in Washington, D.C. would prioritize the restoration of the attorney-client privilege and access to legal services. The Legal Services Corporation has not been "fully funded" since 1981, and lawyers should insist upon "a catch-up for legal funding." In April, the ABA will sponsor the 50th anniversary of "Law Day" to advance the rule of law locally. The ABA will also continue its World Justice Project initiatives, including the Rule of Law Index.

ABA HOUSE OF DELEGATES

Recommendation 10A, sponsored by the New York State Bar Association, "urges federal, state, territorial and local legislative bodies and governmental agencies to develop and assess innovative long-term care programs such as the 'Compact for Long-term Care,' as a reasonable and fair solution to long-term care financing." Proponents called the healthcare system in America unfair and discriminatory towards individuals with certain diseases. The House of Delegates approved an amendment that clarified that the long-term care programs in question would not replace but supplement Medicaid. The recommendation was adopted.

Recommendation 101, sponsored by the Standing Committee on Environmental Law, Section of Environment, Energy and Resources, "urges federal, state, territorial and tribal governments, when considering and approving legislation, regulations and policies, to preserve and enhance the benefits that people derive from ecosystems, with due regard for economic, human and social impacts." The Recommendation was revised to urge the United States government to "engage in active discussions and to negotiate and ratify treaties or other agreements" with Canada and Mexico to address cross-border ecosystem issues. No delegates spoke in opposition to the proposal. The Recommendation was adopted.

The Section of Administrative Law and Regulatory Practice sponsored Recommendation 102A, which "urges each state to assign the redistricting process for congressional and legislative districts to an independent commission, leaving to each state the precise manner of configuring such commission and the specific redistricting criteria to be applied." An amendment added the District of Columbia and U.S. territories to the Recommendation. Proponents argued that the proposal would make redistricting more "fair and transparent" and that independent commissions would achieve "greater public satisfaction and confidence." Proponents also explained that the current systems of gerrymandering favored incumbents unfairly. Delegate Scottie Welch, speaking in opposition to the Recommendation, questioned the "germaneness" of the motion. He called it "presumptuous" of the ABA to take redistricting away from the states and the people. The Recommendation was adopted with some opposition.

Recommendation 102B, sponsored by the Section of Administrative Law and Regulatory Practice, "urges national, federal, state, tribal, territorial and local bar associations, in cooperation with state and local pro bono, lawyer referral, and legal aid programs, to establish programs to assist or provide legal representation for victims of identity theft who need assistance in recovery from the crime." The recommendation was adopted.

Recommendation 105A, sponsored by the Criminal Justice System, "urges federal, state, local, tribal and territorial governments and their prosecutors to vigorously prosecute cases of elder abuse, neglect and financial exploitation by the creation of special elder abuse units within the prosecutor's office or by the designation of a specially trained prosecutor to handle elder abuse cases." Nina Marino, who spoke on behalf of the Recommendation, compared elder abuse cases to those of juveniles, as they are both complicated and unusual. The Recommendation would "retain the respect" for the elderly in the criminal justice system. Recommendation 105A was adopted with no opposition.

The Criminal Justice Section also sponsored Recommendation 105B, amending "Rule 3.8 of the ABA Model Rules of Professional Conduct to identify prosecutors' obligations when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense of which he was convicted." Stephen Saltzburg, speaking on behalf of the proposal, said that the Recommendation "was not an attempt to put burdens on prosecutors" and that they will work with the Department of Justice. The Recommendation was approved.

The Criminal Justice System likewise sponsored Recommendation 105C, urging "federal, state, tribal, local and territorial governments to authorize and implement sentencing laws and rules of procedure that both protect public safety and give mitigating consideration to youthful offenders." Delegate Nina Marino contended that the "current climate" that necessitated Recommendation 105C would allow consideration of mitigating circumstances in the prosecution of juveniles, including the prevalence of "peer pressure." There were no speakers in opposition. The measure was approved with a small amount of opposition.

Recommendation 105D, also sponsored by the Criminal Justice Section, "adopts the black letter ABA Criminal Justice Standards on Prosecutorial Investigations, dated February 2008 to supplement the ABA Criminal Justice Standards on the Prosecution Function." Stephen Saltzburg, speaking in support of the Recommendation, acknowledged that "most of you probably didn't read" the new standards. The resolution was approved with no opposition.

The Section of Individual Rights and Responsibilities sponsored Recommendation 106, which "encourages efforts to increase public understanding of the Establishment Clause and the Free Exercise Clause (the 'Religion Clauses') of the U.S. Constitution as they apply in the public elementary and secondary schools and encourages bar associations to help school officials to better understand and apply the Religion Clauses." IRR Delegate Elisia Frazier explained that the ABA needed to "assume its civic responsibility to help people understand their rights" with respect to the "Religion Clauses." Schools are not a place for "religious indoctrination." She maintained that there was a lack of understanding concerning "well-settled" constitutional law regarding the Religion Clauses. A delegate from the Bar Association of San Francisco also supported the Recommendation. He described the primary schools as "the one mandatory" place where children were required to go. In this mandatory environment, he warned that children could feel like outsiders because of "coercive" religious indoctrination, and both teachers and textbooks can alienate students. Teaching religion in public schools, he warned, "causes tremendous violence in schools." The ABA should join efforts by groups across the country that opposed teaching religion, as opposed to teaching about religion. No delegates spoke in opposition. The recommendation was adopted with very little opposition.

Recommendation 107, sponsored by the ABA's Section of Family Law, "approves the Model Act Governing Assisted Reproductive Technology, dated February 2008, as appropriate legislation and recommends consideration and adoption of the Model Act by appropriate governmental entities." Recommendation 107 was adopted with no opposition.

The Section of Litigation sponsored Recommendation 108, which "urges Congress to enact legislation, like the Veterans Advocacy Act of 2007, which promotes the provision of legal services to veterans and members of the Armed Forces to assist them in obtaining the full range of health care, benefits and services to which they are lawfully entitled." The Recommendation was adopted unanimously.

Recommendation 109 was sponsored by the ABA's Section of Environment, Energy, and Resources and "urges the United States government to take a leadership role in addressing the issue of climate change through legal, policy, financial and educational mechanisms and to engage in active international discussions to address climate change, and urges Congress to enact and the President to sign appropriate climate change legislation." Lee DeHihns, the Section Chair, supported the resolution by stating that climate change was a real threat that needs to be addressed, and that the Recommendation was "entirely consistent with prior ABA policy and must be approved." Sheila Hollis of the District of Columbia stated that the Recommendation "cries out for adoption." No delegates spoke in opposition to the motion, and the Recommendation passed unanimously.

The Commission on Immigration sponsored Recommendation 111A, which "supports fee levels for immigration and naturalization benefits that are not so burdensome as to deter eligible applicants from filing and urges Congress and the executive branch to ensure that adequate funds are appropriated to enable U.S. Citizenship and Immigration Services to implement these fee levels." Mark Agrast, Chair of the Section, argued in favor of the Recommendation, claiming that many individuals were being "priced out of the market" and would be unable to pay the fees associated with immigration and naturalization. He contended that we have "established a means test" for citizenship, and that much of the fees were going towards Homeland Security costs not associated with naturalization. Past ABA presidents Michael Greco and Robert Grey supported the Recommendation, which was adopted with no opposition.

The ABA's Commission on Immigration also sponsored Recommendation 111B, which "supports the issuance of federal regulations that codify the Department of Homeland Security Immigration and Customs Enforcement National Detention Standards, and supports improvement, periodic review, and increased oversight of detention standards implementation in order to ensure that detained non-citizens and their families are treated humanely and have meaningful access to counsel and to the legal process." Mark Agrast also spoke in support of Recommendation 111B, stating that non-citizens should be treated fairly and humanely. The Commission has organized 105 visits to detention facilities, which have found "serious" violations in the Department's own standards. Similar findings have been found by other organizations. The measures recommended, according to Agrast, will address the great "shortcomings" in the Detention Standards. Another proponent claimed that "our system is broken," and that the Standards should be able to be forced as regulation. Stephen Saltzburg, speaking in favor of the Recommendation, compared the detention of non-citizens to that of Guantanamo detainees and that of enemy combatants. Past ABA Presidents Robert Grey and Michael Greco also supported the Recommendation. The Recommendation was passed unanimously.

Recommendation 112, sponsored by the Commission on Lawyer Assistance Programs, "adopts the Model Rule on Conditional Admission to Practice Law including the commentary, dated February 2008." Proponents argued that the Recommendation would allow graduates of law schools to "seek appropriate treatment" for substance abuse or mental disorders. The recommendation's commentary was revised to remove some passages related to confidentiality and conditional admissions to the bar. Former ABA President Michael Greco spoke in support of the Recommendation. He argued that if we did not allow law students to get treatment for substance abuse or depression, they would be "ticking time bombs," susceptible to suicide. Other supporters included past ABA presidents Dennis Archer, Robert Grey, and Karen Mathis. There was a motion to postpone voting on Recommendation 112 indefinitely; though a number of delegates voted in favor of the motion, it failed to pass. The Recommendation was adopted over a sizable opposition.

The Section of Legal Education and Admissions to the Bar sponsored Recommendation 113, which "concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in adopting Interpretation 301-6 (February 2008) of the Standards for Approval of Law Schools concerning the sufficiency of a law school's bar passage rate." A vigorous debate occurred. Jose Garcia-Pedrosa, a Florida attorney, stated that the Department of Education needed a mechanical formula for the ABA's accreditation of law schools. Garcia-Pedrosa added that the Recommendation "in no way" diminished the ABA's commitment to diversity. He warned, however, that if the ABA did not concur with the Recommendation, then the Education Department might not allow the ABA to continue its role as the accrediting agency for law schools. The Recommendation allows three avenues for law schools to be in compliance. He added that the Section would "monitor" the situation very closely. Robert Grey, speaking in favor of the Recommendation, explained the recommendation was carefully vetted. In his view, the ABA should be dedicated to preserving law schools that were committed to diversity and graduating great lawyers. The law student division and the secretary of the ABA minority caucus also supported the House's concurrence of the Standard.

Victor Marquez spoke in opposition to Recommendation 113, stating that it would adversely affect Latino and African American students. He claimed that there needed to be more empirical data for the Recommendation, and that bar passage rates did not have a high correlation to success as a lawyer. "The ABA is the most powerful legal" organization in the world and should take more time to work together to "finish this work in progress," according to Marquez. He concluded, "It is our duty to protect the interests of minority students." A representative from the Illinois Bar Association asserted, "The elephant in the room is the Department of Education" which is requesting this requirement. He feared that these actions could jeopardize the ABA's role in accrediting law schools. He added that, if the House concurs with the Recommendation, "We need to use the force of the American Bar Association" to monitor and potentially dismantle the Interpretation. National Bar Association President Vinita Banks also spoke against the recommendation. She hoped there would be continuing debate to shape a standard to promote the goal of increasing diversity. The Young Lawyers Division, portraying itself as the "conscience" of the ABA, also spoke out against the Standard. The House of Delegates voted to concur with the Section of Legal Education, despite some opposition.

The New York State Bar Association sponsors Recommendation 10D which "expresses support for and solidarity with the Pakistani bar and bench, and urges the immediate release of all detained judges and lawyers and calls upon the President of Pakistan to restore Pakistan's constitution, to reinstate Pakistan's Supreme Court justices and high court judges and to release all judges, lawyers and other people who were wrongly arrested during the state of emergency." Recommendation 10D was approved without opposition.

Recommendation 300, sponsored by the Commission on Youth at Risk, "urges the federal government, states, territories and tribes to revise laws, court rules, policies, and prosecutorial practices related to 'dual jurisdiction' youth (defined as those with juvenile 'dependency' cases that aid victims of child abuse or neglect, who are also charged with acts of delinquency)." The Recommendation was adopted.