Engaged from the Start
The ABA has shaped the debate over the legal war on terrorism since 9/11
Posted Aug 31, 2007 11:10 PM CST
By James Podgers
Robert E. Hirshon was just a month into his term as ABA president when terrorists attacked New York City and Washington, D.C., on Sept. 11, 2001. His policy agenda changed in an instant.
"This tragedy demonstrated that the struggle against lawlessness is far from over," wrote Hirshon, who now practices in Portland, Ore., in the President's Message published in the October 2001 issue of the ABA Journal. "It is an enemy that shows no mercy, no grief, no compassion."
At the same time, Hirshon wrote, "these horrific events ... reminded us that in this shrinking world it is futile to expect safety from geographical or political boundaries. Real security is found only in law and in justice. Consider this our fundamental purpose as lawyers."
These are other key moments in the association's contributions to the fight against terrorism:
September 2001: First response.
Hirshon appoints the Task Force on Terrorism and the Law to study policy issues arising out of the terrorist attacks. Meanwhile, several ABA entities initiate legal services for victims and their families. Under its 1978 contract with the Federal Emergency Management Agency, the Young Lawyers Division establishes a legal assistance call center serving the states immediately affected. The Standing Committee on Legal Assistance for Military Personnel mobilizes Operation Enduring LAMP, a network of bar associations and lawyers providing voluntary legal assistance to service members.
February 2002: Initial policies.
The ABA's policy-making House of Delegates adopts two recommendations relating to terrorism. The first measure (PDF) "supports the call of the president of the United States to bring to justice the perpetrators of global terrorism and those who harbor terrorists or give them aid." The second (PDF) is a detailed response to President Bush's order on Nov. 13, 2001, authorizing the creation of military commissions to deal with suspected terrorists who are not U.S. citizens. The ABA policy opposes the use of military tribunals for legal residents or those otherwise legally present in the U.S., and it endorses the use of international norms and rules consistent with the Uniform Code of Military Justice for any commissions that are convened. The recommendation also opposes indefinite pretrial detention of suspects.
March 2002: Cautious reaction.
ABA representatives express a mixture of praise and concern regarding procedural rules for military commissions released by the U.S. Department of Defense. The regulations "adopt many of the recommendations made by our House of Delegates," Hirshon says. But he expresses concern that the rules don't provide for appeals to federal civilian courts, don't prohibit indefinite pretrial detentions, and don't contain strict guidelines on what can be introduced as evidence.
July 2002: Security blanket.
Hirshon announces an ABA initiative to encourage public discussion about the values that underlie democratic government in the U.S. One element is Dialogue on Freedom, a program developed by U.S. Supreme Court Justice Anthony M. Kennedy, in which lawyers and judges visit high schools to discuss the value of the Constitution and democratic government. The initiative also calls for town hall meetings about democracy, and it sponsors a series of advertisements that celebrate the Constitution. One ad (PDF) features a young girl sleeping under a blanket with the Constitution printed on it. The tagline reads: "security blanket."
August 2002: Against detentions.
The House of Delegates adopts a recommendation (PDF) opposing the incommunicado detention of foreign nationals in undisclosed locations by the U.S. Immigration and Naturalization Service.
February 2003: At odds with the administration.
The House of Delegates adopts a position opposing indefinite detention and the White House insistence that customs of war and the constitutional right to counsel do not apply to enemy combatants. The policy (PDF) endorses the right of U.S. citizens, as well as residents detained on U.S. soil as enemy combatants, to "meaningful judicial review of their status" and access to counsel. "Every person in this room supports the efforts of the president in rooting out those who would harm this country," says Neal R. Sonnett of Miami, who chairs the Task Force on Treatment of Enemy Combatants. "We just can't do it at a loss of constitutional rights."
May 2003: Into the field.
On May 1—the same day Bush announces the end of major combat operations in Iraq—ABA President Alfred P. Carlton Jr. of Raleigh, N.C., announces the creation of the ABA Iraq Post-Conflict Action Team to provide support to the new Iraqi government's efforts to rebuild its legal system and other government institutions. (The ABA later withdrew its lawyer volunteers when security broke down—though it continued to train Iraqi lawyers and judges at locations out of harm's way.)
August 2003: The right to counsel.
The House of Delegates urges Congress and the executive branch (PDF) to assure that all defendants in trials before military commissions have the opportunity to receive "the zealous and effective assistance" of civilian defense counsel.
August 2003: Support for the troops.
ABA President Dennis W. Archer of Detroit announces creation of the Working Group on Protecting the Rights of Service Members to consider new state and federal laws to meet the legal needs of U.S. service members and their families. Later in 2003 and in 2004, Congress updates the Soldiers' and Sailors' Civil Relief Act, incorporating revisions supported by the ABA.
August 2004: Condemnation of torture.
In response to reports of prisoner abuses at Abu Ghraib prison in Iraq and other U.S. military detention facilities, the House of Delegates adopts a measure that "condemns any use of torture or other cruel, inhuman or degrading treatment or punishment upon persons within the custody or under the physical control of the United States government." ABA President Robert J. Grey Jr. of Richmond, Va., calls for an independent commission to investigate allegations of prisoner abuse. "It is an essential requirement of the campaign against terrorism that the world's population believe that we have the morally superior position," says Grey in a speech in San Francisco. Such treatment of prisoners, he says, "hurts our cause." Congress later passes legislation that includes ABA-backed prohibitions against torture of prisoners.
February 2006: Limits on wiretaps.
After news reports disclose that Bush secretly authorized domestic electronic eavesdropping without court approval, ABA President Michael S. Greco of Boston appoints a task force to study the issue. In February, the House of Delegates adopts its recommendations (PDF) opposing any domestic electronic surveillance for foreign intelligence purposes that doesn't comply with the Foreign Intelligence Surveillance Act of 1978. The next day, Greco sends a letter to the president (PDF) decrying "the false choice being offered to Americans—that we must sacrifice freedom to have security."
January 2007: Defending pro bono.
Association President Karen J. Mathis of Denver issues a strong rebuke against remarks made by Charles D. "Cully" Stimson, a senior official at the Pentagon, suggesting that corporate clients sever ties with lawyers giving pro bono assistance to detainees being held by the U.S. at Guantanamo Bay, Cuba. "Lawyers represent people in criminal cases to fulfill a core American value: the treatment of all people equally before the law. To impugn those who are doing this critical work—and doing it on a volunteer basis—is deeply offensive to members of the legal profession, and we hope to all Americans," Mathis says. Under widespread criticism, Stimson resigns in early February as deputy assistant secretary for detainee affairs in the Defense Department.
April 2007: Habeas rights at risk.
Mathis continues ABA criticism of key provisions of the Military Commissions Act of 2006, including one provision that prevents the courts from reviewing habeas corpus claims for detainees that were pending at the time the bill went into effect. "It is precisely the role of the courts to sort out which governmental claims have legal and factual support and which do not, and this is at the core of habeas corpus protections," states Mathis in an April 4 letter to members of the House Armed Services Committee (PDF). A few weeks later, Mathis writes to members of the Senate Judiciary Committee (PDF) expressing the ABA's support for the proposed Habeas Corpus Restoration Act, which would allow courts to hear habeas petitions of Guantanamo detainees.
August 2007: Launch of the World Justice Project.
Incoming ABA President William H. Neukom of Seattle officially launches the World Justice Project, a major effort to define key elements of the rule of law and develop a process for measuring how well individual countries adhere to those principles. "This shouldn't be seen as an effort to impose Western values," says Neukom. "We're talking about universal values."