The Stalwart
weblog of the
Milwaukee Lawyers Chapter
The Federalist Society
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Daisy (Lyndon Johnson 1964)
The Bear (Ronald Reagan 1984)
Morning in America (Ronald Reagan 1984)
Willie Horton (George H.W. Bush 1988)
Swiftboat Veterans Ad on John Kerry - Sellout (2004)
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Filed: 8/27/08 at 8:57:26 AM
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...while contributor dollars pay for some of our favorite programs like "A Prairie Home Companion," "All Things Considered," "Antiques Roadshow" and "American Experience," state funding pays for the infrastructure that makes it all possible.
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What did the Founding Fathers intend when they wrote our constitution? How should we interpret their words today? In Originalism: A Quarter Century of Debate, these questions are debated, explained, and dissected by the very people who have shaped, and continue to shape, the legal structure of our country. Steven G. Calabresi, co-founder of the Federalist Society and Professor of Constitutional Law at Northwestern University has compiled an impressive collection of speeches, panel discussions, and debates from some of the greatest and most prominent legal experts of the last twenty-five years.
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As solicitor general, Clement holds the fourth-ranking position at the Justice Department. He was asked by President Bush to head the agency until a new attorney general is nominated, then confirmed by the Senate.
With the resignation of Attorney General Alberto Gonzales, as well as earlier departures of the next two officials in line, Clement is the Justice Department's highest-ranking official who has been confirmed by the Senate.
posted by Terrence Berres at 6:26 PM
In March, Governor Doyle appointed the commission, led by Co-Chairs State Senator Spencer Coggs and Madison Police Chief Noble Wray, to determine whether discrimination is built into the criminal justice system at each stage of the criminal justice continuum and recommend strategies and solutions to reduce the racial disparity in the Wisconsin criminal justice system.
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In recent weeks, residents in three Wisconsin counties reported being asked for personal information by telephone callers accusing them of missing jury duty, said A. John Voelker, director of state courts. ...
DATCP’s [Wisconsin Department of Agriculture, Trade and Consumer Protection's] Office of Privacy Protection advises consumers that legitimate companies or agencies don’t call or e-mail asking for personal information like account, credit card or social security numbers. Never give out personal information unless you initiated the contact. ...
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Wisconsin lawyers will play a leadership role in efforts to ensure that legal services are available to all residents facing serious legal problems.
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whether the ‘hot pursuit’ doctrine, which permits law enforcement to enter private residences under certain circumstances without a warrant, applies only in situations involving serious felonies, or whether misdemeanor offenses also fall under the doctrine.
whether recordings of this type – where neither party to the conversation is aware of the recording – are regulated by the Wisconsin Electronic Surveillance Control Law.
whether towns in Wisconsin have the authority to, in effect, place a moratorium on new development while updating land-use plans.
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Roger Clegg returned to speak on "Immigration and Assimilation" at a Noon luncheon, August 16, 2007, at the Milwaukee Athletic Club, 757 North Broadway. Mr. Clegg is President of the Center for Equal Opportunity.Labels: Chapter event
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A bill to extend the authorization of programs under the Higher Education Act of 1965, and for other purposes.
Rationale: The Public Interest Law Section of the State Bar of Wisconsin has voted to actively support those provisions U.S. Senate Bill 1642 (2007) (Higher Education Amendments of 2007) or similar legislation that provides funding for a loan repayment assistance program for civil legal assistance attorneys.
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posted by Daniel Kelly at 12:10 PM
The principle of a "unitary" executive involves only one thing: The president's hierarchical control over implementation ("execution") of federal law.
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Connecticut had the longest average deliberation time (7.75 hours) in felony trials. Wisconsin had the shortest (1 hour).
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Reporting Live from ABA Annual Meeting
ABA Watch is reporting live from the ABA's Annual Meeting in San Francisco. Today, we offer you a report from Saturday's sessions.
ABA Opening Assembly
Justice Stephen Breyer offered remarks at the ABA Opening Assembly. He opened by declaring, "I love the ABA," and acknowledging that he was a part of the Association through his membership in the ABA Judicial Division.
Justice Breyer focused his remarks on judicial independence, and he reflected that most non-lawyers rarely consider what the concept means. He knows that many judges, particularly those who face elections (like his friend Tom Phillips, former chief justice of the Texas Supreme Court) are concerned about the concept. Justice Breyer noted that increasing percentages of Americans think judges rule based on what they like, as opposed to the rule of law.
Justice Breyer contended, "Our judiciary, including the U.S. Supreme Court, floats on the sea of public opinion." He suggested that even the Supreme Court keeps its eyes on the polls when deciding cases.
He framed his speech around three questions and his answers. First, he attempted to define what judicial independence entails. Some contend its qualities are life tenure or a particular compensation. He thought that it was a "state of mind [that] judges remain free from those pressures that are not generally relevant to the case." Judges should "be true to the record," particularly on the appellate level. Honesty, truth, and weighing the arguments are important qualities.
Second, he attempted to describe how to explain the concept. He suggested the theory of economics, via Alan Greenspan's definition. One needs the rule of law and an independent judiciary if you want investments. Furthermore, one needed a system in which disputes could be fairly considered for the free markets to flourish.
Finally, he attempted to offer advice on how lawyers could explain the concept. He discussed cases that would be particularly useful in demonstrating the gradual acceptance of judicial independence by both the public and the executive branch. First, he cited Worcester v. Georgia. President Andrew Jackson responded to the court's decision to return land seized by the state of Georgia to the Cherokees with the statement: "John Marshall has made his decision, now let him enforce it." Second, in Cooper v. Aaron, paratroopers were called to enforce the U.S. Supreme Court decision to integrate Central High School, despite attempts by Arkansas Governor Orval Faubus to prevent such enforcement. Third, he suggested any other recent case-including Bush v. Gore-could demonstrate even further progress in how "people have accepted the rule of law."
Justice Stephen Breyer wrapped up his remarks by admitting the last Supreme Court term was "difficult." He declared, "I was in dissent quite a lot, and I wasn't happy." Yet despite his many dissents, including one 77 pages long in Parents Involved in Community Schools Inc. v. Seattle School District and Meredith v. Jefferson County, he still affirmed his faith in the system. Justice Breyer reflected, "When I look at it objectively, I think how I wish I'd won, but I also think, not a bad system. I'm not going to be in the majority all the time. How I wish I were, but that's the system. That's called the rule of law."
Guantanamo
The ABA's Section of Litigation sponsored a program entitled "Guantanamo and the Rule of Law in Time of War." The panelists were asked to address the following topics: what is involved in actually representing the detainees at Guantanamo, the legal landscape in the legal challenges to detention, and underlying policy issues.
Thomas P. Sullivan, a partner at Jenner & Block, spoke about his experience representing detainees at Guantanamo Bay. The difficulties associated with representing detainees, Sullivan noted, are "virtually impossible to explain...to a non-lawyer" and even "difficult to explain...to a lawyer." Sullivan related the anecdote of a Saudi Arabian man who had taken a leave of absence to build schools in Afghanistan. After the U.S. invasion, he had fled to Pakistan and was picked up and handed over to American forces. According to Sullivan, this detainee had not engaged in terrorist activities and has illegally been separated from his wife and daughter for over four years. He has no lawyer and does not speak English. Sullivan asserted that there was not enough evidence, included some that had been "obtained by torture," to justify the detention of his clients. Sullivan derided the tribunal hearings as "sham proceedings" and charged that the Guantanamo detainees were being held in "preventative detention;" that is, they would never be charged and would be held until they were deemed to no longer be threats. He called the military commissions "a ridiculous, dumb, inadequate system."
Sullivan maintained that the detainees were being held in deplorable conditions. He said the prisoners were shackled to the floor and were kept in "small cages." The food and medical attention were "lousy." He asked the audience to imagine sitting in a bathroom with no reading material. Sullivan then emphasized that this was the life of these detainees, and that many of them had been there for "five bleep years." Sullivan added that the only thing that keeps them going is a strong belief in Allah, and they have little or no faith in the American judicial system.
"If this is a joke, we just don't get it," Sullivan retorted. When asked about the terrorist threat, he recalled "Joe McCarthy warning us about the Communist threat" and that "this fear tactic is childish...dangerous to our basic principles." Sullivan contended the Iraq war spurred terrorism and has "caused much more danger to this country than Saddam Hussein ever would have." He quoted Nietzsche: "Whoever fights monsters should see to it that in the process he does not become a monster." Sullivan's article, entitled "You Have the Bodies," was the only CLE reading associated with this panel.
The second panelist, Gitanjali S. Gutierrez, is a staff attorney for the Center for Constitutional Rights (CRC). She has represented 10 Guantanamo detainees, and CRC is active in organizing the pro bono effort on behalf of the detainees.
Gutierrez concurred with Sullivan's analysis and laid out the legal background for Guantanamo. She described how CRC and others have litigated a number of cases seeking greater rights for the detainees. For example, cases such as Rasul, Hamdi, and Hamdan have defined or modified the Bush Administration's polices towards the prison.
While one of the main goals was seeking habeas corpus for the prisoners at CRC, she joked, "We are not normally citing the Magna Carta and the Founding Fathers." Legislation such as the Detainee Treatment Act and the Military Commissions Act, however, has "derailed and delayed" CRC's efforts.
Gutierrez went further to criticize the use of "aggressive interrogation tactics," the stripping of habeas corpus, the strengthening of executive privilege, the prison's secrecy, and the use of the term "enemy combatant." She continued, "Our reaction to what's happening" is a greater threat to the U.S. constitutional system and to the country than any threat posed by Al Qaeda. The use of military commissions is just a way to increase presidential power.
The third speaker was Glenn Sulmasy, a professor at the United States Coast Guard Academy. In his opening remarks, Sulmasy acknowledged, "I'm basically the only conservative on the panel." He warned that the country must not "fall asleep' in the face of Islamic terrorism, as "This threat is real and it's continuing."
Sulmasy explained that the Guantanamo tribunals were modeled after the Geneva Conventions and that in some ways they granted rights POWs did not normally receive. Guantanamo itself as a prison system for detainees "is not an unfair system." He cited a West Point study that found that about 95% of Guantanamo detainees had engaged in terrorist activities and were being legally held. Sulmasy did admit that the prison "has become a lightening rod, so we should look for other ways" of handling the detainees.
Sulmasy outlined three ideas "to move us forward as lawyers in the war on terror." First, we should change the name from a "war on terror" to a "war on Al Qaeda." Second, the U.S. should set up homeland security courts, which would be a hybrid between criminal and military courts. Finally, the U.S. should call for an international conference to review the Geneva Conventions, either to update them or create new rules of war.
Review of the Supreme Court Term
A Saturday afternoon panel entitled "On the Docket 2007: The New Supreme Court" was sponsored by the Standing Committee on Public Education. This panel analyzed several of the Supreme Court cases from last term.
David Savage, a legal reporter for the Los Angeles Times, served as the moderator. In his opening remarks, he began with a discussion of the "Reagan judicial philosophy" which had dominated the President's administration in the 1980's. He described this philosophy as generally being hostile to abortion rights, against affirmative action, supportive of property rights over the environment, and supportive of executive power. Then he discussed how five of the justices-Alito, Scalia, Thomas, Roberts, and Kennedy-had either worked in the Reagan administration or had been appointed by President Reagan. Savage next remarked, "We now have what looks like a Reagan Court." He qualified his statement, however, by saying that Justice Kennedy was "the least committed of the Reaganites." He explained this by describing how Kennedy knew Justice Warren and certain decisions, such as Lawrence v. Texas, made Kennedy sound "Warren-like." Kennedy, however, still had a "strongly pro-life opinion" this year.
The first panelist, Pamela Karlan, a professor at Stanford Law School, addressed the Carhart case. She explained how this was the first statute to not include a health exception for women. Karlan was highly critical of Justice Kennedy's opinion, especially his word choice, as he consistently used the words "mother," "unborn baby," and "abortion doctor." She disparaged Kennedy's claim to protect women from post-abortion guilt, claiming it was a "clear paternalistic judgment about women." She joked that "maybe we should ban marriage" as marriages can also be something that people regret. Karlan dismissed the notion that Carhart was merely symbolic, saying that "some people may be prosecuted."
Professor Vikram Amar of the Hastings College of Law focused on the two cases regarding schools. First, the Supreme Court ruled that the plans in Seattle and Louisville to assign students by race were impermissible, with the "Reagan justices" in the majority. The same majority ruled in the Morse case, showing that the trend of 5-4 decisions leans "in the conservative direction." Justice Kennedy, however, drew many fine lines checking conservative tendencies of the Court. Amar claimed that the Court's "use of Originalism" was inconsistent, as the "Reagan justices" did not use Originalist arguments in these school cases.
Robert H. "Bo" Abrams, a professor at Florida A&M University, College of Law, addressed the four cases dealing with environmental issues. In his description, he charged that the Court "is very inconsistent in statutory interpretation." When Abrams came to Massachusetts v. EPA, which dealt with the EPA's ability to regulate greenhouse gases, he claimed to enjoy arriving at "the good case." Abrams admitted that this characterization would let the audience know "where my biases are." He stated that the Court had definitively said that global warming did exist and that this decision should spur legislation to "address the problem."
Professor John Hennigan of St. John's University School of Law discussed the business cases of the term, such as Leegin and Marrama. Hennigan argued that these cases questioned the usual labels for the justices, as often "the so-called liberal justices" and "the so-called conservative justices" did not rule as one would have expected them to.
Rights of Same-Sex Couples
The ABA Section of Litigation sponsored a program on Saturday morning called "Same Sex, Same Rights?" The program featured three speakers who answered in the affirmative to the question posed in the description: "Is achieving equality for all families the civil rights issue of our generation?"
Detroit News columnist Deb Price detailed changes in the social and political landscape for gay rights in the past few decades. She thought the turning point was the election of Bill Clinton. Despite a mixed record on the issue, his "don't ask/don't tell policy" for gays in the military ultimately benefited the homosexual community, as it made their civil rights issues very visible. She noted the irony of the "right-wing's efforts to demonize gay people," as gays sought traditional rights to marry, to serve their country, and to protect their children. Price identified three moments that could affect the future of gay rights. First, the election of a Democrat in 2008 to the presidency could lead to overturning the Defense of Marriage Act (DOMA). Second, the legalization of gay marriage in California would open up the right to marriage for many more Americans, due to the state's large populace. Third, it would be a "very bad thing" if President Bush were to have another Supreme Court appointment.
Jon Davidson of Lambda Legal offered a recent history of litigation for same-sex rights. As developments accelerated, he identified tradition and the will of the people as two potential roadblocks. Bobbie Wilson, who is active in California efforts to legalize same-sex marriage, detailed the current state of litigation. She described her brief in the case that will be argued before the California Supreme Court that could legalize same-sex marriage. Wilson argued the California constitution liberty clause does not deny the fundamental right to marry, that the right to personal autonomy permits the right to marry, and that California domestic partnerships do not cure constitutional defects of creating a separate status for gays in California. She thought the state's briefs were "clever," and she worried that the Supreme Court would fall prey to their logic.
In Other News
--Supreme Court Justice Stephen Breyer received the ABA's Rule of Law Award at a luncheon Saturday. He related how he was in India on 9/11 with then-colleague Sandra Day O'Connor. After the attack, Justice Breyer stated, "I began to see that the true division of importance in the world is not between different countries. The important division is between those who are committed to reason, to working out things, to understanding other people, to peaceful resolution of their differences...and those who don't think that."
With respect to the role of international law, which garnered a lot of attention after several U.S. Supreme Court decisions considered it a few terms ago, Justice Breyer maintained that there was no controversial role for international law in other cases, such as an antitrust case involving Ecuador. He specifically exempted the Guantanamo cases in making this statement. In 2003, the citation of foreign and international law attracted controversy in cases not mentioned by Breyer, such as Lawrence v. Texas and Atkins v. Virginia.
--Recommendation 119, submitted by the Commission on Effective Criminal Sanctions and the Criminal Justice Section, will be withdrawn from consideration by the ABA House of Delegates. The recommendation would have urged governments to limit access and use of criminal history records for non-law enforcement purposes to the extent permitted by the First Amendment. The proposal attracted scrutiny from the media, who feared the proposal would seal off public records that could shed light on possible misconduct by law enforcement. These records are also often used to determine trends in the criminal justice system. Business groups were also concerned, as they often seek these records in housing and employment background checks.
--San Francisco Mayor Gavin Newsom greeted attendees at the ABA Opening Assembly. He alluded to his attempts to legalize same-sex marriage when he mentioned he needed a lawyer at times when he engaged in actions that "challenged the status quo."
Future Reports
ABA Watch will be reporting daily between now and next Wednesday on developments during the ABA Meeting.
posted by Terrence Berres at 1:16 PM
Reporting Live from ABA Annual Meeting
ABA Watch is reporting live from the ABA's Annual Meeting in San Francisco. Today, we offer you a report from Friday's sessions.
We also invite you to join us on Sunday, August 12 for a panel discussion on "Congressional Oversight and Executive Power in Today's World," co-sponsored with the ABA's Individual Rights & Responsibilities Section. The panel will take place from 2:00 p.m. - 3:30 p.m. in the Moscone Center West, Room 2004. A reception will follow. Panelists include Mark Agrast, Senior Fellow at the Center for American Progress; John Payton of Wilmer Hale; David Rivkin of Baker & Hostetler; and Glenn Sulmasy, Associate Professor of Law at the U. S. Coast Guard Academy. Past ABA President Robert Grey will moderate the discussion. For more details, visit HERE. You must RSVP to lisab@fed-soc.org to attend this free presentation.
Late-Filed Recommendations to be Considered by the ABA House of Delegates
Several late-filed recommendations were submitted for consideration by the ABA House of Delegates.
Recommendation 10C, filed by the Bar Association of the District of Columbia, urges the ABA to "undertake a study of, and make recommendations concerning, appropriate means by which the appointment, retention, and replacement of United States Attorneys and career government attorneys, and the exercise of their professional judgment and discretion, may be insulated from improper partisan political considerations.
According to the sponsor, the ABA, "as the representative of our country's legal profession," should conduct a "professional, non-partisan review" of the issues involved in the firing of nine U.S. attorneys "to develop recommendations to safeguard against politicization of decision-making by United States attorneys or by [government] career lawyers."
The sponsor's report details circumstances surrounding the firings of the U.S. attorneys and described the "disturbing" attempt by Justice Department officials to "politicize" the hiring of staff attorneys. Two "highly respected" Senators, Arlen Specter and Patrick Leahy, engaged the Attorney General in "very critical and bipartisan questioning" regarding these events. The sponsor notes that Senator Leahy has been "particularly supportive of the ABA."
The sponsor suggests the ABA Board of Governors (BOG) could organize the Commission, though the sponsor demurs from endorsing a particular model. The BOG could establish a task force with representatives from ABA entities "whose jurisdiction and interest encompasses aspects of the study" such as the Sections of Litigation, Criminal Justice, Administrative Law, or Individual Rights & Responsibilities. Alternatively, BOG could ask one section to create a task force with a cross-section of views.
The sponsor proposes a few reforms that could be undertaken. One reform could be in the selection process for U.S. Attorney nominees for the respective judicial districts. The sponsor suggests appointing "a Commission in each district, comprised of respected lawyers and lay leaders, to submit several names of prospective nominees to the President for his consideration." Another possible reform "is a requirement that members of the House and Senate publicly disclose all contacts which they initiate with the United States attorney from their jurisdiction concerning any pending case or matter, or recommending any action to institute an investigation or prosecution." A third reform "would be the adoption of stronger sanctions to deter hiring practices which 'cross the line' against consideration of political affiliation in the hiring of career government attorneys.
The sponsor contends, "The importance to the profession and the public of averting the risk of politicization in the administration of justice, and of precluding partisan considerations in the exercise by government attorneys of their professional judgment and discretion, warrants action by the ABA to study this problem and to develop appropriate protective rules and legislation."
Absent from the sponsor's report is a discussion of how to distinguish between improper partisan influence of or action against a U.S. attorney vs. proper political or policy considerations in hiring and firing that, in our constitutional system, a unitary Executive might properly make. The report is also ambiguous in describing the process by which the ABA selects participants to the task force. While the BOG and ABA leadership may have discretion in determining the composition of the task force, the ultimate membership of the task force and the purview it falls under will be central to the ultimate outcome in light of the ambiguities discussed above.
Another late recommendation, submitted by the City Bar of New York, the Standing Committee on Law and National Security, the Section of Individual Rights & Responsibilities, the Center for Human Rights, the Task Force on Treatment of Enemy Combatants, and the New York State Bar Association, "urges Congress to enact legislation that would: (a) Supersede the Executive Order of July 20, 2007, which authorizes the Central Intelligence Agency to operate a program of detention and interrogation that is inconsistent with U.S. obligations under Common Article 3 of the 1949 Geneva Conventions; and (b) Ensure that whenever foreign persons are captured, detained, interned or otherwise held within the custody or under the physical control of the United States, or interrogated in any location by agents of the United States (including private contractors), they are treated in accordance with the minimum protections afforded by Common Article 3 and in a manner fully consistent with the standards of treatment and interrogation techniques contained in FM 2-22.3, the U.S. Army Field Manual on Intelligence Interrogation of September 2006."
ABA President Karen Mathis endorsed this recommendation. According to Mathis, "We [the U.S.] are part of the international community" and thus are obligated to abide by the international treaties the United States has adopted. Torture is "not appropriate."
It is a complex issue-the United States has not adopted Protocol One of the Geneva Conventions, for example.
More information on this report will be detailed in tomorrow's Barwatch Bulletin.
Karen Mathis Press Conference
ABA President Karen Mathis held a press conference on Friday morning. She focused on two issues in her initial remarks: FISA and Ledbetter v. Goodyear.
Mathis criticized recent revisions to the Foreign Intelligence Surveillance Act (FISA), charging Congress did not include "adequate checks and balances to prevent invasions of privacy." According to Mathis, "With today's technology, the government has almost limitless power to secretly probe the most private communications of Americans. This power is too great to be held in the hands of any one authority. Our nation's history underscores the importance of checks and balances to make sure no branch of government has unlimited power. History demonstrates time and again that when government agents have surreptitiously bypassed judges and decided on their own to tape phones and invade homes, abuses have occurred."
She urged Congress to fix the flaws in the recent revisions "to require appropriate judicial and congressional oversight whenever electronic surveillance involves U.S. citizens."
Regarding the recent U.S. Supreme Court decision in Ledbetter v. Goodyear, Mathis declared that the decision left a "fatal flaw" in the law, as "it imposes such short time limits that most workers lose their right to file a complaint before they even realize they're victims of discrimination." She urged Congress to repair the law by passing legislation "to clarify its intentions that there must be real and effective protection against discriminatory pay." According to Mathis, "The 1964 Civil Rights Act directly enabled many African Americans, women, and others to claim their rightful places in the workforce. The demands of justice and fair play are too great to be trumped by a law's technical failings." She announced that the ABA's Individual Rights & Responsibilities Section and its Commission on Women in the Profession have submitted a late-filed recommendation for the House of Delegate regarding this issue, which Mathis "strongly" supports.
This recommendation urges "legislation to clarify that the statute of limitations for claims of discrimination in pay runs from each injury -- that is, from each paycheck reflecting an improper disparity. The legislation should provide that in pay discrimination cases, each such paycheck counts as a separate unlawful employment practice under Title VII. This rule will ensure that discriminatory pay disparities will not be insulated from legal challenge, that employees need not file claims before they gain sufficient knowledge of the pay disparity, and that employers will have an incentive to discover and address discriminatory pay disparities rather than conceal them."
Concerning other matters:
-- Although the Supreme Court has affirmed the right of habeas corpus to detainees, legislation has stripped this right away. Mathis emphasized that due process was a "fundamental right" and urged that the right of habeas be restored to detainees.
--When asked about the ABA's relationship with the Bush Administration, Mathis contended it was both "honest" and "professional" despite occasional tension. She revealed that she had met with Attorney General Alberto Gonzales and had a productive meeting with him. Furthermore, the Association worked closely with DOJ on issues such as juvenile justice and delinquency prevention.
--Mathis contended that over the past year, the American public had moved closer to the Association's positions on detainees, torture, checks and balances, and signing statements.
War on Terror Panel
Friday morning featured a panel sponsored by the Standing Committee on Law and National Security entitled "GWOT vs. SAVE, A New Legal Framework? Is it a Global War on Terrorism or a Struggle Against Violent Extremism?" The panel considered the following questions: "What capabilities will the U.S. need over the long term to meet the challenge of international terrorism and global violence? What is the nature of the long-term threat and what is the legal framework for the struggle to defeat terrorism? Do we have the capabilities (policies, resources, institutions) needed to implement strategies? In what context is the use of military force the most effective tool or what other tools should be brought to bear? Does international law have to be reformed?"
Kenneth Wainstein, the Assistant Attorney General of the Department of Justice's National Security Division, described the two paradigms regarding terrorism: the war on terror paradigm and the law enforcement paradigm. He asserted that September 11th caused a shift in law enforcement from a "reactionary" position to one "merging with intelligence." This change has been generally accepted.
Gregory T. Nojeim, senior counsel at the Center for Democracy and Technology and the former Associate Director and Chief Legislative Counsel for the ACLU, warned that the military model in dealing with terrorist groups has important implications for "the most fundamental rights" of civil liberties. He thinks that the government is "picking and choosing" aspects of both the law enforcement and the war on terror models and consistently not choosing the protective aspects. Nojeim then focused on the issue of wiretapping in light of the recent legislation. He charges that the administration's stance-that it has the authority to determine how to engage the enemy-is "not very friendly" for those who are suspected to be involved in terrorism. According to Nojeim, we are making rules that will last for lifetimes. He ended his remarks by quoting Justice O'Connor's opinion in the Hamdan case: "The state of war is not a blank check" for the president "when individual liberties are at stake."
Abraham D. Sofaer, Senior Fellow at the Hoover's Institution's Foreign Policy and National Security Affairs, contended that the debate over calling terrorism a war or criminal is fashionable. He charged that those who tried to fight Al Qaeda through criminal law were "kidding themselves" and the American public. Only an international armed conflict could have stopped Al Qaeda. The Bush administration, however, has used the legal rationale of "inherent executive power" to justify expanding the executive's power. This can be seen in the detention of Al Qaeda suspects, in interrogation tactics, in the establishment of military commissions, and wiretapping. Sofaer called the argument that rules for interrogations and torture did not apply overseas an "astonishing assertion." Sofaer did not contend that these powers were wrong; rather, he asserted that the Administration should have gone through Congress for these powers, especially since Congress has consistently protected the Administration's policies "excessively." This can be seen in the Military Commissions Act and the recent FISA bill. During the question and answer period, Sofaer declared, "The disdain for the use of force is an illness" in the international community.
Elise Groulx-Diggs, the president of the International Criminal Defence Lawyers and the founding president of the International Criminal Bar, affirmed, "I believe strongly in the ideas of multilateralism and the UN system." She endorsed the International Criminal Court and other international courts as effective ways to enforce international criminal law. She defined terrorism as the systematic use of violence against civilians. While 9/11 was a horrific act of terrorism, the international community is "equally horrified" by other acts of terrorism, such as terrorist acts in the Congo, Uganda, Darfur, Rwanda, Yugoslavia, Iraq, and Chechnya. Groulx-Diggs specified three methods of addressing these various forms or terrorism: 1) Traditional war; 2) Traditional criminal justice; and 3) New forms of war, with a variety of "questionable tactics," such as torture and detention.
She maintained that the first two methods are encompassed in the ICC system. The U.S. version of the Global War on Terror is "outside of the law or illegal." Speaking as an "internationalist," Groulx-Diggs charged that U.S. policy has raised "political and ethical concerns."
David Rivkin of Baker and Hostetler LLP explained that the U.S. is not in a war against terror but rather, "We are at war against specific entities." According to Rivkin, 9/11 clearly "ushered in an armed conflict." If this is not a war, then the definition of war is no longer discernable. Rivkin maintains, "It's not an either/or question" dealing with war and law enforcement paradigms. The problem lies with the movement supporting the exclusive use of the law enforcement paradigm. Prior to 9/11, both the Clinton and the Bush administrations utilized the law enforcement paradigm and it "failed to stop these types of attacks." According to Rivkin, the insistence that the Geneva Conventions are "the alpha and omega" of international law is absolutely incorrect.
McGeorge School of Law Dean Elizabeth Parker contended that the U.S. needed a new paradigm based upon education. We do need a more robust surveillance capacity, but we need to educate and discuss the issues more fully if we are going to be making changes in intelligence methods. Parker warned, "We need to make sure that the public has confidence" in the oversight and use of these new intelligence methods. If law enforcement and intelligence is not informed, they will overreact. She asserted, "We are over-reacting to 3,000 deaths." If we had wanted to prevent 9/11, "We needed to have a full range of different policy choices." During the question and answer portion of the program, Parker explained that Islamic extremism has a political component and that we need to understand what is fueling this phenomenon. She called the Iraq invasion a "folly" and that it has created the conditions for more terrorism. Parker contended, "We've overreacted out of naïveté and fear.
Future Reports
ABA Watch will be reporting daily between now and next Wednesday on developments during the ABA Meeting.
posted by Terrence Berres at 7:05 AM
posted by Terrence Berres at 10:39 AM
Labels: Bar Watch
posted by Terrence Berres at 4:21 PM
Recently there has been growing discussion concerning the appropriate role of state Attorneys General. Some argue that state AGs have overstepped their boundary by prosecuting cases and negotiating settlements that have had extraterritorial effects, and sometimes even national effects. Others argue that AGs are simply filling a vacuum left by the failure of others (for example, federal agencies) to attend to these issues. In light of this debate, the Federalist Society hosted a panel featuring several state Attorneys General who discussed the proper role of state AGs.
Panelists include:
Hon. Donald Stenberg, Erickson & Sederstrom and former Attorney General of Nebraska
Hon. Bob McDonnell, Attorney General of Virginia
Hon. J.B. Van Hollen, Attorney General of Wisconsin
Hon. John Suthers, Attorney General of Colorado
Ms. Peggy Little, Little & Little -- Moderator
posted by Terrence Berres at 4:20 PM
The rules that govern our professional practices were once called the Rules of Professional Responsibility. The new Rules of Professional Conduct for Attorneys became effective July 1.
I promise not to preach. I promise not to get sidetracked by tinkering with the diploma privilege and Bar membership issues.
posted by Terrence Berres at 4:19 PM
posted by Terrence Berres at 3:41 PM
posted by Daniel Kelly at 6:17 PM
posted by Terrence Berres at 5:05 PM
In this issue [28 pp. pdf] of ABA Watch, we offer an overview of the ABA's programming and policy toward environmental issues. We also recap a Young Lawyers Division meeting last February, where delegates proposed that the Association adopt a "supermajority" to adopt policy positions. We also profile several of the award winners at the ABA's Annual Meeting. And, as in the past, we digest and summarize actions before the House of Delegates.
The ABA and Environmental Law, page 1
ABA Honors Justice Kennedy, Judge Berzon & Stephen Oleskey At Annual Meeting, page 1
Recommendations on the Katrina Commission, State Secrets Privilege, and Judicial Independence To Be Considered By the House of Delegates at ABA Annual Meeting, page 2
Young Lawyers Division Debate on "Super-Majority" to Take Policy Position