In For the Duration
Since August, ABA leaders have made it clear that the association will continue to be a key voice in the ongoing debate over what role the justice system plays in the war against terrorism in the United States and abroad.
President-elect Michael S. Greco described the role that the association has carved out for itself when he spoke in August at the ABA Annual Meeting in Atlanta.
“We need to continue to monitor and protect the delicate balance between national security and civil liberties,” Greco of Boston told the ABA House of Delegates. “Let no one doubt we will ever abdicate that responsibility to the people.”
Since the terrorist attacks on Sept. 11, 2001, the ABA has given input to the government on a variety of issues. They include victims’ compensation funds, immigration restrictions, international money laundering that supports terrorist activities, and procedural rules for military tribunals that have started hearings for suspected terrorists and enemy combatants on the U.S. military base at Guantanamo Bay in Cuba. Last year, the House, which sets ABA policy, called for people being held by the government as enemy combatants to have access to judicial review and legal representation. The U.S. Supreme Court issued decisions earlier this year that assert such rights for detainees. The association filed amicus briefs in those cases.
Condemning Torture
In August, the House tackled another legal aspect of fighting terrorism when it adopted 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 (including its contractors) and any endorsement or authorization of such measures by government lawyers, officials and agents.” The recommendation was submitted to the House by the Association of the Bar of the City of New York and 14 co-sponsors in response to reports that U.S. military and intelligence personnel have mistreated prisoners captured when the United States and its allies invaded Afghanistan and Iraq after the Sept. 11 attacks. The House approved the recommendation in a voice vote during its sessions at the annual meeting.
The measure also urges President Bush and Congress to establish an independent bipartisan commission to prepare “a full account” of detention and interrogation practices carried out by the United States, and to issue recommendations to assure that such practices are conducted in accordance with U.S. law and international treaties to which the United States is a party.
Opponents of that particular provision maintained during the House debate that the creation of another panel to investigate reported mistreatment of detainees by members of the U.S. military, the CIA and contractors providing security services would be redundant when investigations are already being conducted by Congress and other government panels.
In late August, a bipartisan commission appointed by the Defense Department criticized top civilian and military leaders in the Pentagon for failing to provide adequate oversight on the handling of detainees at Abu Ghraib prison in Iraq and other detention facilities. At about the same time, an Army panel issued a report critical of the role played by military intelligence personnel in the handling of prisoners.
But in the same week that those reports were issued, new ABA President Robert J. Grey Jr. used one of his first major speaking engagements to press the association’s call to create a new commission to investigate the reported abuses of prisoners.
“It is an essential requirement of the campaign against terrorism that the world’s population believe that we have the morally superior position,” said Grey of Richmond, Va., in a speech to the Commonwealth Club of San Francisco on Aug. 25.
But, he said, “When images of Abu Ghraib are allowed to happen–when Americans are engaged in immoral conduct in the very same prison that Saddam’s tyranny engaged in immoral conduct, then our moral authority is replaced by moral ambiguity in the hearts and minds of people around the world. And this hurts our cause.”
That moral authority also is undermined, said Grey, “when it appears that the United States has a disregard for international agreements. If our nation appears to circumvent these obligations when it appears to be politically or militarily convenient, then we debase the very value that we have sacrificed so much to defend: the value of the rule of law.” In follow-up comments, Grey said, “We need to get this straight sooner or later. While there may be other investigations going on, there is not one comprehensive investigation looking at systemic issues from a macro level where all agencies are subject to investigation.” Meanwhile, the ABA will have a presence at the military tribunal hearings getting under way at Guantanamo Bay.
Outgoing ABA President Dennis W. Archer of Detroit announced during the annual meeting that the Defense Department had invited the association to send an observer to the hearings. He appointed Neal R. Sonnett of Miami to fill that role.
Sonnett has chaired the ABA Task Force on Treatment of Enemy Combatants for the past two years. “The Defense Department knows that I’m not a shrinking violet,” he notes. In other action in Atlanta, the House approved recommendations calling for changes in criminal sentencing and prison policies at the state and federal levels. The proposals were developed by the Justice Kennedy Commission, appointed by Archer after U.S. Supreme Court Justice Anthony M. Kennedy urged the ABA in a speech at the 2003 annual meeting to take the lead in addressing concerns about a criminal justice system in which “our resources are misspent, our punishments too severe, our sentences too long.” The key recommendation in the package calls for replacing mandatory minimum sentencing laws with guidelines that allow judges to consider the unique character- istics of each case and offender in deciding whether to impose sentences that depart from those guidelines.
In June, the Supreme Court’s ruling in Blakely v. Washington called into question guidelines that allow judges to adjust sentences based on their own findings. The court will hear arguments Oct. 4, the first day of the 2004-05 term, on two cases that should give the justices a chance to flesh out their thinking about whether sentencing guidelines are constitutional.
“These are fundamental recommendations that are ripe for consideration by the House regardless of how the court decided Blakely,” said Sonnett, a member of the Kennedy Commission. “But the changes should be consistent with Blakely.”
