Bar Watch Bulletin August 10, 2004

House of Delegates Action

August 10, 2004

Today we are reporting live from the meeting of the ABA House of Delegates. The House is the body which places the ABA on record as supporting or opposing various policies. Here is a summary of some action that may be of interest:

FUNDING FOR THE FEDERAL JUDICIARY. The House adopted a resolution calling for funding of the federal courts "at levels sufficient to enable the Courts to fulfill their separate Constitutional and statutory duties." The accompanying report states: "These are days of heightened sensitivity to threats to our homeland's security. It is important to bear in mind the vital role played by the Federal Courts and the continued urgency of their continued proper functioning."

THE ABA AND ABORTION. A member of the Association proposed that the following be included in the "Purposes" section of the ABA Constitution: "to defend the right to life of all innocent human beings, including all those conceived but not yet born." The Chairman of the Association's Committee on the Constitution and Rules recommended that the amendment not be adopted on the grounds that such an inclusion would be "inconsistent with a purpose of the Association-defending the Constitution and maintaining representative government." The proposal was tabled.

"LAWYERS OF THE WORLD, UNITE!" The Association's House adopted an amendment to the Constitution that would change the references to "foreign" lawyer members to read, "non-U.S." lawyer members.

ABA LOBBYING PRIORITIES: WHO DECIDES? The House considered an amendment to the Constitution that would require each House of Delegates agenda to include an "informational report" on ABA legislative priorities from the 40-member ABA Board of Governors, which does not contemplate House of Delegates action, as distinguished from a report that would require House action (which is what the Constitution historically required). Some opposed this change on the ground that it would make it impossible for the ABA's most representative body, the House of Delegates, to second-guess Board of Governors lobbying priorities. The proposed change nonetheless was adopted.

PUSHBACK ON GOVERNMENT LIMITS ON HUMAN EMBRYO STEM CELL RESEARCH. The House of Delegates adopted a resolution opposing the Welden Amendment to Commerce/State/Justice appropriations, which reads: "None of the funds appropriated or otherwise made available…may be used to issue patents on claims directed to or encompassing a human organism." The following statement summarizes the nature of the ABA's opposition: "The proposed resolution expresses the opposition of the ABA to restricting or limiting patentable subject matter on order to prohibit conduct that may be regarding as objectionable for reasons unrelated to patents or patent law. The resolution also expresses opposition to the use of fund limitations to effectuate such changes in substantive law."
KENNEDY COMMISSION

THE ABA AND SENTENCING GUIDELINES. The House of Delegates adopted a resolution "urging states, territories and the federal government to ensure that sentencing systems provide appropriate punishment without over-reliance on incarceration as a criminal sanction and also urges Congress to take specific action with regard to existing federal sentencing laws and procedures." According to sponsor Stephen Saltzburg, the purpose of the recommendation is "not to answer questions but to begin a dialogue." He also said that the ABA was "concerned with the length and cost of incarceration." Shifting gears, Mr. Saltzburg stated that he was disappointed that the Department of Justice never responded to their invitations to participate in this dialogue. "The Department of Justice wouldn't even speak to us. We never heard a word but now we will hear something. You are a year late but better late than never."

Associate Attorney General Robert McCallum spoke in opposition to recommendation 121A. Mr. McCallum charged that if we were to adopt this resolution, we will see the crime rate revert back to the 60s and 70s. He then went on to state that the problem we are hearing about from the ABA is not what it appears to be. "The United States is experiencing a 30 year low. If we were to revert back to the crime rate of 1993 vs. now, we would see a jump in the murder rate by 10,000. Rape and sexual assault is down 56%; burglary is down by 63%. This illustrates that the governmental system is working to reduce crime." Mr. McCallum went on to combat the ABA's charge that the many incarcerated are in jail for petty crimes: "This is wrong. 92% of all current inmates are repeat or violent offenders." He went on to state that President Bush has recommended $300 million for inmate reintroduction into society to reduce the recidivism rate.

Neal Sonnett, speaking in support of 121A, argued that the Department of Justice takes a "tunnel single-minded view of the criminalization system." He then went on to challenge the Department of Justice's statistics by pointing to the statistics found in the ABA report. Mr. Sonnett suggested that no other country in the world has as many people locked up as the United States.

THE ABA AND THE USE OF TORTURE. The ABA adopted recommendation 10B, which "condemns any use of torture" of persons in custody by the U.S. government. Georgetown Law Professor Stephen Saltzburg started out by stating that the ABA must "speak out" because of "high-level approval of torture," referencing the incidents at Abu Ghraib. He then maintained that the United States is turning over detainees to other countries "whom we know carry out methods of torture. Our government has attempted to reinterpret international treaties." Moreover, our government has argued against the Geneva Convention because they claim the detainees don't meet the standards mentioned in the Convention." Salztburg maintained that it is important to condemn torture because, if we don't, the U.S. will lose credibility amongst other countries and risks the safety of our troops if they are captured by other countries.

Professor Saltzburg explained that the recommendation calls for the "government to alter its current policy by condemning torture…and ensuring compliance with the Constitution of the United States."

One of the other sponsors, Betsy Plevin of the Association of the Bar of the City of New York, echoed a number of Professor Saltzburg's comments. Interestingly, in discussing torture, Ms. Plevin mentioned in passing that having detainees wear hoods or exposing them to cold air would be the kind of conduct that ought to be deemed inappropriate.

Only one individual spoke in opposition to the resolution, and he was not even a member of the House of Delegates. David Rivkin, representing the Washington Legal Foundation, received the privileges of the House floor to speak.

Mr. Rivkin's main argument was that the ABA has failed to define torture, which he suggested was the most important contribution the organization could make. He argued, "Pages and pages are spent condemning torture and inhumane treatment, but no effort is made to define what types of interrogation techniques fit the definition of torture and inhumane treatment and which ones are not."

Mr. Rivkin made it clear that torture and inhumane practices are unacceptable and illegal, but he stated that it's too easy to leave it at that. Mr. Rivkin described some of the stress methods and physical and psychological rigors that are administered to our men and women in US military basic training camps: "If it is not inhumane or degrading to subject youthful U.S. recruits to these stress methods, then it is difficult to see how it could be inhumane or degrading to treat enemy captives similarly."

Speaking in favor of the resolution, Neal Sonnett conceded that this proposal does lay out a definition of torture, and further noted that although it doesn't have an exhaustive list of what constitutes specific torture methods, "everyone understands what torture is but David.... There is no doubt about what torture means." Former ABA President Jerome Shestack said much the same: "we know it when we see it, and those who receive it know it when they feel it. Calling for a definition is a cop-out." Mark Agrast, former chairman of the Individual Rights Section, maintained that torture is adequately delineated by a large body of customary international law.

There was a motion to pass an amendment that would have stricken that part of the recommendation that called for a bipartisan Congressional commission. The sponsor of this amendment pointed out that we already have an investigation by Senators Levin and Warner of the Armed Services Committee and that this process ought to be given time to work before the ABA calls for another investigation. That amendment failed.

ABA HIGHEST AWARD FOR FATHER DRINAN - in accepting the ABA Medal, Father Drinan quipped: "accepting this award is like a canonization, but a little early."

ABA PRESIDENT-ELECT MICHAEL S. GRECO SELECTED QUOTES:
"The events of recent years have taught us that we must also be prepared for the unexpected - because it is likely that we will encounter it, and we must be ready to deal with it: as President John Curtin did from a podium in this very city in responding to a Vice-President's attack on the legal profession" [Referring to then Vice President Dan Quayle's critique of lawsuit abuse at the ABA Convention, and then ABA President Curtin's unexpected rejoinder after Quayle completed his remarks]; "as President Martha Barnett did with a President's decision to change the historical role of our Standing Committee on Federal Judiciary" [referring to President George W. Bush's removal of the ABA's special status in scrutinizing candidates for the Federal Bench before nomination]; "as President Robert Hirshon did in leading the profession's response to the terrorism of 9/11" [Referring to consistent, uniform opposition to current Bush Administration positions on military commissions and treatment of detainees]; "and as President Dennis Archer did in committing the Association to accept Justice Kennedy's challenge to address the abuses in our country's correctional system" [Referring to ABA opposition to current Bush Administration's sentencing policy].

"On June 28, 2004, the U.S. Supreme Court handed down three historical decisions relating to the balance between national security and constitutional rights. The Association filed amicus briefs in two of those cases."

"The Court's decisions did three vitally important things: they reasserted the judiciary's vital role in our government of checks and balances; they reaffirmed the principle that a president's power in our democracy is not unlimited; and they reconfirmed for the world America's dedication to fairness, due process, and the rule of law."

"The Court's decisions did something else, of which this House can be very proud: they affirmed the wisdom of the several policy positions adopted by the House during the past thirty months relating to the war on terrorism, the treatment of detained persons, and civil liberties."

"The people look to us to protect their constitutional rights, and to uphold their belief in fairness, due process and human decency - values that have always defined America to other nations of the world. And so this Association and our profession bear a heavy responsibility to the people, and to our democracy - a responsibility that defines what the legal profession stands for."

FROM: THE ABA CENTER FOR HUMAN RIGHTS, AN INFORMATION REPORT - UNDERSTANDING HUMAN RIGHTS. Executive Board Members include: Chairman Jerome Shestack, Hon. Thomas Buergenthal, Father Robert Drinan, and Hon. Ruth Bader Ginsburg. Treaties Discussion: "As noted earlier, the ABA has endorsed the principal human rights treaties. The Center is paying particular attention to two important treaties which seek to protect the human rights of women and children: the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). These treaties have been ratified by more than 100 nations. The ABA has endorsed these treaties and testified in support of them. However, they still need to be ratified by the U.S. Senate."

THE ABA PASSES RECOMMENDATION TO FUND PROSECUTOR'S OFFICES. The recommendation "urges federal, state, local and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by adopting the following principles: Provide adequate funding to prosecutor's offices."

RECOMMENDATION ON THE ALTERNATIVE MINIMUM TAX PASSES (AMT). The resolution "recommends that Congress reduce the federal tax burdens and compliance costs attributable to the AMT on individuals by repealing the individual AMT. Further resolved , that the ABA recommends that Congress that if repeal of the individual AMT is not feasible, then the individual AMT should be modified in a manner consistent with its original purpose to ensure that the AMT applies only to designated high-income individuals."

The report states that "although the AMT was aimed at wealthy taxpayers who use exclusions, deductions, and credits to avoid paying their 'fair share' of tax, its real burden falls on middle-class taxpayers whose trust in the system's fairness may erode significantly over time. This is particularly true when AMT liability varies based not on total income or deductions but on the types of those items, on the taxpayer's occupation or employment status, or on the taxpayer's state of residence.

The National Taxpayer Advocate recently reported that 65 percent of married couples with two or more children, and adjusted gross incomes between $75,000 and $100,000 will be subject to AMT by 2005. These individuals, and others described in this report, fall outside the original AMT target group. Unless Congress addresses the AMT problem, proposals to reduce income tax rates and make prior tax cuts permanent will further increase the number of AMT taxpayers. For these individuals, the so-called income tax cuts will prove to be hollow promise."

In summary, "if the AMT applied only to its original target group, extremely high income individuals who paid little or no tax, perhaps its costs could be justified. Those individuals are more sophisticated and can afford professional advice and other costs associated with complexity. But reports indicate that many of them avoid both income tax and AMT, while government resources are expended administering the AMT's application to middle-income taxpayers.

The AMT imposes additional taxes on taxpayers who lack the financial wherewithal to pay. Taxpayers who recover nominal damages for asserting their rights may pay more in tax than they actually recover. Taxpayers who exercise ISOs must sell their shares prematurely or be taxed on paper gains. Those who hold their stock risk plunging stock values, which would wipe out their ability to use AMT credits."

"Because its components are not indexed for inflation, the AMT applies to an ever-increasing group of middle-income taxpayers, eroding the income tax cuts Congress enacted for them."

HEALTH CARE OPTIONS IN CATHOLIC HOSPITALS. Amidst fierce criticism from outside Catholic groups, including the U.S. Catholic Conference of Bishops, the Individual Rights Section withdrew its resolution that would have called for changes in law requiring Catholic hospitals, despite conscience objections, to discuss treatment options such as abortion, sterilization, and human embryo stem cell treatment.

TITLE IX AND RETALIATION. The House of Delegates passed, without debate, a resolution clarifying its position that "retaliation constitutes a form of discrimination prohibited by Title IX for which a private right of action exists to enforce the statute." The resolution was considered because there is a case before the U.S. Supreme Court regarding the issue.

The matter is not without controversy. The right of action would have to be implied under Title IX, as was the case with Title VI when the Supreme Court decided Cannon v. University of Chicago. But other civil rights statutes specify when retaliation is actionable, and the Court in more recent years has said that implied rights of action are disfavored.