Bar Watch Bulletin August 9, 2004

Civil Rights panels, Torture Resolution Debate

August 9, 2004

ABA WATCH will be reporting daily from the American Bar Association's Annual meeting in Atlanta through August 10th. Here are the updates from Sunday's events:

40TH ANNIVERSARY OF THE 1964 CIVIL RIGHTS ACT

Lawyers and the Civil Rights Movement - A Historical Perspective

The ABA's Criminal Justice Section held three panels today on the history of the Civil Rights Act of 1964. This is the first of the three panels.

In answering why the Voting Rights Act was not included in the 1964 Civil Rights Act, Father Robert Drinan - recipient of the 2004 ABA Medal, the Association's highest honor - stated that LBJ didn't have the votes to include that issue on top of the already contentious Civil Rights Act. He then went on to address a previous question about reparations, and stated that reparation is not the word he would use. Father Drinan said he rather "would call it restitution, indemnification."

Father Drinan then described to the audience a dream he had last night-a dream in which "John Kerry wins the election and Dennis Archer becomes the first Black Attorney-General." The audience of this panel erupted with applause. He finished his discussion by saying, "God help us if Bush was around during the Civil Rights Act."

One audience member questioned the left's ability to get mobilized for the 2004 election. Panelist Paul Igasaki, formerly of the EEOC, observed: "While I was at another convention recently, I was staying in the dorms training the youth and I saw a lot of enthusiasm and anger in those young people."

40th Anniversary of the 1964 Civil Rights Act Amendments and Progeny of the 1964 Civil Rights Act: The Influence of the Act on Other Legislation

In the second panel, Karen Narasaki from the National Asian Pacific American Legal Consortium detailed how she is working with major networks to ensure that there is more representation of Asians on our airwaves. She is also working with the EEOC to move more Asians into upper management. Narasaki addressed what she believes conservatives are doing to perpetuate discrimination: "The right is good at undermining civil rights by not collecting data." She observed that, without numbers, you can't make the arguments needed.

On another topic Narasaki said that "we can't trust Attorney General Ashcroft to enforce Title VI." This prompted loud applause from the audience. She maintained that we have seen a number of instances of discrimination by this administration, including its failure to enforce a language discrimination case brought by non-English speaking Chinese-Americans in San Francisco. "Discrimination of language is discrimination of nationality."

Ms. Narasaki went on to describe how the events of 9/11 have created a system of racial profiling by President Bush and Ashcroft.

Mr. Andrew Imparato of the American Association for People with Disabilities described what he thought was the most important issue for the future of people with disability rights: the Supreme Court. Speaking of the interpretation of ADA protections, he observed, "Scalia, Thomas, and Rehnquist have reined it in, saying that Congressional laws are too vague. Because of this, people with epilepsy aren't protected by the 1964 Civil Rights Act from discrimination. There is a serious attitudinal problem with certain Justices as to how they view disabilities."

Ralph Neas, of the People for the American Way, offered his thoughts on the impact the election will have on civil rights: "The next 86 days will determine what the law of the land will be for the next several decades."

Neas suggested that at times when we witnessed an explosion of civil rights legislation (1964 Civil Rights Act, 1965 Voting Rights Act, etc.) "the Right" was saying that the "Constitution is in exile." He suggested that the only reason these rights were ultimately protected against hostile efforts by Newt Gingrich and Trent Lott was because of the veto power of William Jefferson Clinton. Neas charged that "Bush, Cheney, Rumsfeld and Ashcroft are the most sustained right-wing assault. They are doing this in a two-pronged fashion: tax cuts (which are taking away billions for social programs) and the judiciary."

Mr. Neas then attacked the Federalist Society for trying to hijack the courts to achieve policy results. "In the 1980s, the Federalist Society knew they couldn't win in the legislature so they went to the judiciary." Neas suggested that, in a world of judges similar to Justices Thomas and Scalia, Roe vs. Wade is in jeopardy.

Mr. Neas then discussed filibusters by praising the Democrats in Congress: "Bush, Rumsfeld, and Cheney have been trying to ram judges down the throats of progressives. They are a bunch of bullies. Everything we've fought for is in jeopardy right now. What we need is honest debate and I believe that the voice of the progressives will come out on top."

During the question period, referring to the war on terror, Mr. Neas stated that "the Bill of Rights has been undermined. The Attorney General has run amuck. The USA Patriot Act is a huge problem and Ashcroft has gone far beyond the USA Patriot Act. He is not respecting the Constitution nor the rule of law."

THERE WERE NO CONSERVATIVES OR LIBERTARIANS ON THESE VARIOUS CIVIL RIGHTS PANELS.

Debate of the Federalist Society and the Individual Rights Section of the ABA

The Federalist Society and the IRR Section of the ABA held a debate titled "The War on Terror: Are We Following the Rule of Law?" Here's a summary of what happened during this debate, which dealt with a proposed resolution of the ABA on the issue of torture and detainees in Iraq and Guantanomo Bay.

Panelist William Hannay, former Chairman of the International Law Section of the ABA and a member of the working group for the Torture Recommendation (click here for more coverage on this issue), offered several reasons why it was important for the ABA to make this recommendation: "There has been an attitude seen in the (Administration detainee interrogation) memos that lawyers are trying to justify meanings to fit their ideas of what is right and what is wrong. The memo has allowed people to believe you can get around international law." He went on to say that abuse in order to extract information is never justified. We cannot be accepted as a moral leader if torture continues. Moreover, "If we allow torture, other countries will feel freer in the same respect to abuse as well. Even non countries like Al-Qaeda. This resolution creates no wiggle room." The purpose of the recommendation, in short, is to put the ABA on record as opposing the use of torture.

David Rivkin, a partner at Baker and Hostetler and a former Associate White House Counsel, said the biggest problem with this recommendation was its failure to define torture. A definition is the greatest contribution that could be made, and the ABA's "pious declaration" does nothing to work through the ways in which context and other factors might rightly affect the view whether something is torture. "Is sleep deprivation for days torture? Yes. For six hours? No. If I am at work and I ask my secretary to drop down and give me 50 push-ups, that's not acceptable. Is that acceptable at boot camp? Yes. This is insane legal disarmament. Absolutes are bad."

Mr. Rivkin also spoke of the need to ensure effective interrogation which does not constitute torture, and that the general nature of the ABA resolution will pull us away from that important focus. "Simple questions asked of detainees don't yield any information. Harsher questioning methods do. We have seen the arrests and killings of 2/3 of Al-Qaida militants because of this information."

ABA and Religious Hospitals

Lawyer Shannen Coffin writes more on the controversy concerning religious hospitals in this National Review Column:

"Later this week, the American Bar Association will consider a resolution introduced by its Section of Individual Rights and Responsibilities, which sets forth its opposition to government policies that interfere with the ability of patients to access, in a timely manner, either directly or referral, medically appropriate care. Behind the veil of this seemingly innocuous proposal is a troubling attempt by the ABA to demand that the government discriminate against the religious practices of health-care providers across the country. It is yet another example of the increasingly open hostility toward religion - and morality generally - from the legal establishment." READ MORE HERE.