Bar Watch Bulletin August 2004

ABA Annual Meeting Preview

August 2, 2004

The American Bar Association Annual Meetings take place from Thursday, August 5 through Tuesday, August 10. Once again, ABA WATCH will be reporting live from the meetings. Today we preview upcoming resolutions and other highlights from the meetings.

Event of Note

The Federalist Society will be hosting a debate between David Rivkin of Baker & Hostetler and a representative of the ABA concerning its last minute torture resolution (see below for more details). As of yet, the ABA has not confirmed who will be representing the Association. The debate, which will also include a reception, will be held at the Ritz Carlton, 181 Peachtree Street, NE beginning at 4:00 p.m. on Sunday, August 8. If you plan on attending, RSVP to rsvp@fed-soc.org.

Resolutions

A late-filed resolution by the Association of the Bar of the City of New York and the ABA Task Force on Treatment of Enemy Combatants addresses the use of torture and cruel, inhuman, or degrading treatment or punishment of prisoners detained by the United States. The sponsors note that the resolution was filed in light of prisoner abuses in both Afghanistan and Iraq and Executive Branch memoranda allegedly drafted "to justify interrogation procedures that are in conflict with long-held interpretations and understandings of the reach of treaties and laws governing treatment of detainees." According to the sponsors, "these legal interpretations do not represent sound policy, risk undercutting the government's ability to assert any high moral ground in its 'war on terrorism,' and put Americans at risk of being tortured or subjected to cruel, inhuman, or degrading treatment by governments and others willing to cite U.S. actions as a pretext for their own misconduct."

In proposed Recommendation 103B, the Section of Litigation is urging the ABA to adopt amendments to the Civil Discovery Standards. These standards do not have the force of law, but each is, instead, an admonition to counsel regarding his or her responsibilities. Most of the recommendation deals with electronic discovery.

Recommendation 106 proposes that the American Bar Association establish a Task Force to address issues pending or arising before governmental bodies concerning the fairness and reliability of the procedures prescribed for voting, and for the tabulation of votes, in the 2004 election for President of the United States. The resolution calls for members of the Task Force should be presidentially-appointed and to focus "on issues relating to the integrity and accuracy of computerized recordation and counting of votes, and the need for an appropriate 'paper trail' for verification purposes." Post-election, the Task Force would deliver a report as to how fair the election was conducted and will offer recommendations for future improvements.

Recommendation 111A, offered by the Criminal Justice Section, proposes Congressional legislation concerning surveillance and law enforcement in the USA PATRIOT Act. In particular, the recommendation focuses on how the proposed "SAFE" Act-the Security and Freedom Ensured Act-would modify or repeal the USA PATRIOT Act and how the House of Delegates should address the proposed changes.

Recommendation 115, proposed by the Commission on Domestic Violence and the Special Committee on Gun Violence, supports "legislation and administrative action to more fully implement and enforce critical federal laws already 'on the books' and to repeal a recently adopted federal amendment that unreasonable restricts short-term retention and auditing of firearms purchaser background check records." In particular, the National Instant Check System (NICS) should be fully implemented "by requiring federal agencies and departments to submit relevant data they administer regarding persons disqualified to the Attorney General for NICS, by supporting state efforts to automate background records of persons prohibited under existing law from possessing or purchasing firearms, including felony, domestic violence misdemeanor offenses, and mental health-related adjudications." Additionally, existing gun laws should be enforced, including rarely prosecuted federal crimes.

Recommendation 119, offered by the Section on Individual Rights and Responsibilities, urges the ABA to oppose "governmental actions and policies that interfere with (a) the right of patients to receive from their healthcare providers … all of the relevant and medically accurate information necessary for fully informed healthcare decision-making; and (b) the ability of patients to access, in a timely manner, either directly or through referral, medically appropriate care."

In Recommendation 118, the Standing Committee on Election Law is urging Congress, the states and territories to "enact special election procedures" so that in the event of a catastrophe, the U.S. House of Representatives can fill mass vacancies more effectively. This recommendation focuses on the House, because filling vacancies in the Senate is governed by the Seventeenth Amendment, which allows "temporary appointments to fill vacant seats until special elections can be scheduled." 48 states allow their governor to make that appointment.

The findings of the Kennedy Commission will also be debated. Recommendation 121A urges that sentencing systems provide appropriate punishment without overreliance on incarceration as a criminal sanction. Recommendation 121B urges the establishment of the Criminal Justice Racial and Ethnic Commission to study the extent of racial and ethnic disparity in the criminal justice system and make recommendations to eliminate discrimination. The recommendation further proposes policies to combat racial profiling. Per Justice Kennedy's suggestion, the Commission considered means to "reinvigorate the pardon process at the state and federal levels" in Recommendation 121C. The Commission proposed several mechanisms for early release beyond pardon and endorsed a mechanism in which a court or executive agency would review a prisoner's situation to determine whether he or should would be eligible for pardon or early release. Recommendation 121D concerns prison conditions and reentry programs.

Speakers of Note

  • U.S. Supreme Court Justice Stephen Breyer
  • President Mikhail Saakashvili, Country of Georgia
  • Hon. Griffin Bell, Former U.S. Attorney General
  • Hon. Benjamin Civiletti, Former U.S. Attorney General
  • Hon. Edwin Meese, Former U.S. Attorney General
  • Hon. Janet Reno, Former U.S. Attorney General
  • Michigan Governor Jennifer Granholm
  • FTC Commissioner Thomas E. Leary
  • Atlanta Mayor Shirley Franklin
  • Dr. Abigail Thernstrom, Manhattan Institute & U.S. Civil Rights Commission
  • Bob Woodward, The Washington Post
  • Eleanor Clift, Newsweek Contributing Editor
  • Donna Brazile, Campaign Manager Gore/Lieberman 2000
  • Joe Whitley, General Counsel, Department of Homeland Security
  • Theodore Shaw, NAACP
  • Ralph Neas, People for the American Way

Also…

ABA President Dennis Archer sent a letter to the chairmen of the RNC and the DNC on July 20, urging civility in the campaign, particularly with regards to lawyers. Archer wrote, "Because of the gravity of the issues confronting voters, we hope the major parties - the world's preeminent political institutions - will agree to focus on a discussion of those issues and not resort to name-calling and finger-pointing or use convenient scapegoats to scare the public. To do so would demean the process, and the voters. This is particularly true when these efforts are broadly directed at lawyers or judges." He continued, "We recognize that campaign debate may involve our court systems, judges or the legal profession. For the role of lawyers and judges to be addressed in those debates is natural. For it to happen in a manner that demonizes a profession steeped in the traditions of public service is unnecessary, unproductive and offensive." The press release came two weeks after John Edwards was named John Kerry's running mate.