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Barwatch Bulletin -- February 16, 2009

February 16, 2009
February 17, 2009
House of Delegates Considers Recommendations

The ABA's House of Delegates met today to vote on recommendations that if adopted, become the official policy of the Association.  Below are several recommendations of note that were considered by the House of Delegates.

Recommendation 10A, sponsored by the New York State Bar Association, was adopted by the House of Delegates.  The Recommendation deals with the rights of detainees held at the Guantanamo Bay detention facility.  The Recommendation urges that the U.S. government prosecute individuals charged with violations of criminal law be prosecuted in Article III federal courts, that individuals deemed to be improperly classified as enemy combatants be promptly released or resettled, and that those currently detained as enemy combatants, be provided prompt habeas corpus hearings with full due process rights.  The Recommendation sparked debate among the delegates, as some believed it may be premature to pass recommendations on this issue due to the Obama's administration's Executive Order to close Guantanamo  Bay and further investigate the issues surrounding the facility.
   
Neil Sonnett, Chair of the ABA's Task Force on Enemy Combatants, rose in opposition to those in favor of postponing the Recommendation, saying that the ABA's previous efforts have "fell on deaf ears."  "Now we finally have someone in the White House who will listen to us," said Sonnett.  Sonnett and others in favor of the measure agreed that when the Obama Administration reviews this issue they will want to hear the ABA's recommendations. 

Recommendation 101A, adopted by the House of Delegates, calls for Congress to examine policies that require youths to register as sex offenders.  The measure asks that judges be given discretion based on the facts and circumstances of each case to examine whether mandatory registration in the sex offender registry is warranted.  This change would require an amendment to the Adam Walsh Child Protection and Safety Act (2006).  The Recommendation also urges Congress to increase funding for treatment of juveniles adjudicated for sexual offenses and victims of sex crimes alike.

Recommendation 101C, sponsored by the Criminal Justice Section and the Commission on Immigration, supports legislation and/or administrative standards to ensure due process for all persons arrested or detained in connection with immigration enforcement actions.  The Recommendation urges that immigration proceedings are carried out in order to ensure that individuals are informed of their rights in a language they can understand, are granted access to adequate counsel, and are provided proper legal orientation upon arrest.  The Recommendation was adopted by the House of Delegates.

Recommendations 107A-107G, brought about a spirited debate between members of the House of Delegates.  These recommendations put forth several measures to remedy insurance issues that arose after hurricanes Katrina and Rita.  Delegate member Leopold Sher, a resident of New Orleans, LA, said that these measures were not thoughtfully considered, and contained measures that the Tort Trial and Insurance Practice Section did not have the expertise to address, such as knowledge of capital markets and the gulf's insurance industry in general.  Although several members of the House of Delegates disagreed with the recommendations, they were adopted by the House of Delegates. 


Presidential Press Conference

ABA President Tommy Wells held a press conference Monday morning to outline the ABA's successes and goals for the future.  Wells focused on the ABA's role in the financial crisis.  Wells urged ABA members to learn more about the crisis and to address the crisis through pro bono work.  Wells also hopes that the ABA will help to refocus the country's immigration policy so the United States can "find and deport criminals," while allowing the integration of law abiding workers.

Wells discussed the ABA's work on judicial independence and fair and impartial courts.  Wells praised the ABA for its advocacy for bipartisan judicial nomination commissions to "ensure that the best and brightest serve on the federal bench."

Wells also mentioned the upcoming ABA conference on Fair and Impartial State Courts that will take place this May in Charlotte, NC.  Thirty five state court justices have assembled teams from all three branches to attend the conference and discuss issues facing the state justice systems.

Human Rights in the New Administration

The Monday afternoon featured a luncheon entitled "Renewed Hope: Human Rights and the New Administration."  The luncheon address was given by John Shattuck, CEO of the John F. Kennedy Library Foundation and senior fellow and lecturer at Tufts University.  The lunch was sponsored by the ABA Center for Human Rights.  Shattuck spoke about the steps that can be taken to renew world opinion of the United States, specifically in the area of human rights.

"Whether justly or unjustly" the United States is viewed by many nations as a human rights violator according to Shattuck, but the problem runs much deeper than simply blaming the Bush administration.  Shattuck laid out several measures that he believes could improve America's image abroad and renew the "commitment to the rule of law."

Shattuck suggested the U.S. get "back to basics" by providing basic constitutional due process rights, eliminate foreign "law free zones" abroad, and act in accord with the Geneva Convention and Uniform Code of Military Justice (UCMJ).  Shattuck also suggested that the U.S. form an official U.S. Commission on Human Rights with subpoena power that would review United State human rights policy.

Shattuck praised President Obama for establishing a commission to review Guantanamo detainee cases, and said the president's order to close Guantanamo was a "step in the right direction."  He also praised Senator Leahy's for his work towards establishing a bipartisan "truth commission" to address these issues.
     


Dellinger and Marshall Speak Before the House of Delegates

Monday's House of Delegates session featured addresses by Walter E. Dellinger III, partner, O'Melveny & Myers LLP and professor of law and Hon. Margaret H. Marshall, Chief Justice of the Massachusetts Supreme Court. 

Dellinger's address celebrated President Lincoln's legacy, calling him "America's greatest lawyer."  Dellinger gave several examples of writings and speeches by Lincoln in and out of the courtroom that illustrated his greatness as an attorney and political leader.  Dellinger spoke of Lincoln's exceptional ability to concede points to his legal and political adversaries while still achieving his goals.   

Chief Justice Marshall spoke to the House of Delegates in a "State of the State Courts" address, speaking about the growing problems facing the state courts.  Marshall spoke about the number and complexity of cases facing the court, the current funding crisis, and what she sees as an increasing politicization of the state judiciary.  

Marshall spoke about the budget strains forcing state courts in several states to limit the operation of their courts.  As an example, Marshall mentioned New Hampshire's recent announcement that it will halt all civil and criminal jury trials for a month.  Furthermore, Utah has dismissed all of its in house court reporters, and Maine is no longer staffing magnetometers as people enter the courthouse.

Marshall gave particular attention to what she sees as the increased politicization of the state courts.  Marshall discussed the increasing amounts of money that are being spent in state judicial races.  Marshall referenced the decision in Republican Party of Minnesota v. White, contending it loosened restrictions on judicial campaign speech and "opened a Pandora's box of difficult issues."  Marshall also quoted former Supreme Court Justice Sandra Day O'Connor, calling expensive judicial elections "the greatest single threat to judicial independence." 

Marshall encouraged the audience to "speak up for when your state courts are underfunded...know what is happening with your state courts systems, and advocate before your legislatures and governors  for adequate court funding and merit-based judicial selection."