Memorandum to the Next President

Your ABA

November 2008 Issue
By H. Thomas Wells Jr. and Thomas M. Susman

To: The Next President of the United States

From: H. Thomas Wells Jr., ABA President, and Thomas M. Susman, Director, ABA Governmental Affairs Office

Re: Your First 30 Days in Office

Date: November 2008

Once you take office in January, Mr. President-elect, you will face all manner of challenges related to the rule of law—issues with dramatic impact on the day-to-day lives of all Americans and others who come into contact with the U.S. government.

The American Bar Association—with nearly 408,000 members, the world’s largest professional organization—has made numerous policy proposals for improving the justice system and promoting the rule of law. Those policies also seek to ensure the nation’s security while continuing to protect civil liberties. The association’s policies—which are adopted by the 556-member House of Delegates—include measures we are recommending to help the administration and Congress achieve these objectives.

Many of the goals reflected in the ABA’s policies require legislative action. That means, as the Constitution prescribes, joint efforts by the executive and legislative branches. The president, however, has the power to take executive action on certain urgent matters.

You can start working on some of these pressing matters as part of your transition process and then take executive action right after your inauguration, even as the 111th Congress is organizing. The ABA urges you to act in the following areas where progress can be made, without legislation, in a very short time:

Judicial Selection and Nomination. The federal judicial nomination and confirmation process is a critical constitutional responsibility shared by the president and the Senate. Although the process is political by design, it functions poorly when contentiousness and partisanship rule the day. To restore a sense of common purpose and bipartisanship to the judicial nomination and confirmation process, you should, as president: (1) Pledge to consult in good faith with the home-state senators and with Senate leaders of both parties prior to nominating individuals for lifetime appointments to the federal bench, (2) support establishment of bipartisan commissions to assist in identifying qualified candidates for possible nomination to the courts of appeals, and (3) urge senators in each state to establish bipartisan commissions to identify qualified individuals whom the senators might consider recommending to the president as possible nominees to the district courts. Pre-nomination consultation and bipartisan commissions will benefit all parties while preserving constitutional prerogatives.

Immigration. As a nation of immigrants, the United States has the obligation to ensure that our immigration adjudication and detention systems are effective, fair and humane. To ensure appropriate treatment of individuals in immigration detention, including access to legal representation and basic medical care, you should instruct the secretary of the Department of Homeland Security to promulgate the Immigration and Customs Enforcement National Detention Standards—which provide guidance on a range of issues related to detention conditions and detainee treatment—as regulations with the force of law. In addition, to restore fairness to the appellate review process, you should direct the attorney general to take steps to rescind the Board of Immigration Appeals: Procedural Reforms to Improve Case Management, which were instituted in 2002.

The measure greatly diminished the quality of BIA reviews and resulted in a crushing appellate caseload in the federal circuit courts.

Attorney-Client Privilege. The Department of Justice, through a series of memorandums spanning a decade, instructed prosecutors to deny cooperation credit to corporations and other organizations that refused to waive their fundamental attorney-client privilege, work product and employee legal protections during investigations. Many other federal entities—including the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development—adopted similar waiver policies that also undermine these bedrock legal rights. Although the Justice Department issued new cooperation standards in August prohibiting prosecutors from seeking waiver of the privilege or employees’ legal rights, policies undermining the attorney-client privilege and other protections remain in place at other federal entities. You should immediately direct all federal entities to adopt binding internal policies that mirror the protections contained in the new Justice Department standards and follow up by endorsing legislation in Congress that makes these reforms permanent and gives them the full force of law that only a statute can achieve.

Interrogation Practices for Detainees. An executive order issued by President Bush on July 20, 2007, authorizes the CIA to operate a program of detention and interrogation that is inconsistent with U.S. obligations under Common Article 3 of the Geneva Conventions of Aug. 12, 1949. You should rescind that executive order and ensure that whenever a foreign person is captured, detained, interned or otherwise held within the custody of or under the physical control of the United States, or interrogated in any location by agents of the United States (including private contractors), he or she is treated in accordance with the minimum protections afforded by Common Article 3 and in a manner fully consistent with standards of treatment and interrogation techniques contained in U.S. Army Field Manual 2-22.3, Human Intelligence Collector Operations, issued September 2006.

International Criminal Court. The United States has a long history of promoting justice and the rule of law on an international scale. Yet in 2002, President Bush withdrew the United States’ signature from the 1998 Rome Statute for an International Criminal Court, thereby removing the United States from any involvement with the ICC. You should restore the U.S. signature to the treaty and initiate the appropriate executive branch process that will lead to the treaty’s submission before the Senate for ratification during the 111th Congress. Until the United States ratifies the Rome Statute, you should instruct the secretary of state to ensure that the U.S. government cooperates and assists in ongoing investigations and prosecutions by the ICC, and exercises its right to participate as an observer at meetings of the court’s governing and planning bodies.

Presidential Signing Statements. During his administration, President Bush has issued signing statements in conjunction with certain bills he signed in which he claimed the authority or stated the intention to disregard or decline to enforce all or part of the new laws, or to interpret the laws in a manner inconsistent with the clear intent of Congress. While the use of presidential signing statements is not new, the outgoing administration has used them as a vehicle, often unnoticed, for effectively vetoing or amending the very legislation being signed. This is contrary to the rule of law and our constitutional system of separation of powers. You should make clear at the start of your administration that you reject this constitutionally suspect use of signing statements. If you believe that any provision of a bill pending before Congress would be unconstitutional if enacted, you should communicate those concerns to Congress before passage and use your veto power if you conclude that all or part of a bill is unconstitutional.

Mr. President-elect, the ABA is strongly committed to advancing the rule of law through implementation of these initiatives. They are neither partisan nor ideological and are of concern not only to the lawyers of America but to all Americans.

Our membership includes a diverse group of highly experienced lawyers with expertise in each of the areas addressed above. The ABA is prepared to convene, in a very short time frame, nonpartisan working groups of our volunteer experts to assist your transition teams and staff in developing and executing the steps necessary to implement these policies during the first few weeks of your term in office. We urge you to take us up on this offer.

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Posted by Lee - Nov 6, 2008 07:29 pm CST

As to the Memorandum from our ABA President to the Nation’s next President (now known to be Barack Obama), I read through it, but intentionally did not dissect it, because I wanted to see how it would appear at first glance. Obviously it was well written and advances some good points, and as a newly admitted lawyer, some issues discussed are issues I am not completely familiar with. However, what I did not agree with is the constant theme of criticizing our Current President, in fact it appears he is only mentioned as instituting some policy or taking some form of action which is inconsistent with the constitution and the rule of law. Even though our incoming President ran on a platform which was against our current President, and our current President is reported to be immensely unpopular, going to far in not supporting him can become outright un- patriotic. Will this same treatment fall upon Obama when he does something inconsistent with the rule of law or constitution, by the ABA? Nothing is mentioned about any good he could have possibly done in his 8 years, and the criticism of Bush is a little concerning. This letter which really is supposed to represent all ABA members, who, to my knowledge are all lawyers (or law students) should not appear to advance a liberal agenda, as I felt it did in it’s first read. It should only appear to address the laws as objectively interpreted or seen from a Lawyer, and a lawyer with a powerful voice, representing a vast majority of all lawyers in the United States. In addressing immigration, the concerns seemed to be exclusively with the “rights” of those who’s very presence here is illegal AND completely contrary to the constitution, our sovereignty, and our national security. This concern of illegal immigration should certainly be, at the very least, addressed, in that segment, rather than the exclusive focus on what rights illegal aliens have. If you consider the law and the constitution only, then this should actually be the focus. It says we are a nation of immigrants, but the immigrants of the past, that I know of, followed the law, and went through proper legal channels to have the privilege of citizenship, while realistic estimates today state that many millions of immigrants are here illegally, and this must become the focus first, as our borders have to be secure, which is implied or stated in the constitution. The same goes for the interrogation practices of detainees. Again, it discusses how an executive order signed into law by Bush is wrong, essentially. Yet it focuses on what “rights” exist for, essentially, suspected terrorist suspects, rather than the rights which the United States and her citizens have to be protected. It seemed novel to me to offer to “intervene” as the ABA with the incoming Obama President, I am not sure if the ABA has done so or offered to in the past or not, and I do not have an opinion either way on that, other than that it seemed to me something I had never seen. In essence, of course it was a well written memorandum, and I am glad one was written and sent to Obama. However, I was disappointed to get the feeling that it, overall, advanced a liberal agenda, when representing the ABA and it’s diverse members, it should not advance a conservative or liberal agenda, and really should just inform and discuss the laws today and how they should be applied, and discuss it in an even- handed manner. At least that was my take…
Posted by Merlinus Monroe - Nov 7, 2008 09:32 am CST

The points addressed were excellent, and reflect the multiple grievances I have had during the torture of the Constitution by the Bush Administration following the events of September 11, 2001 (which arose just before I passed the Bar itself).

However, my comment is directed rather to Lee’s comment. Isn’t it patriotic to dissent? Isn’t the main problem that has arisen over the course of the past several years with such acts by the Bush Administration as the use of signing statements and disavowal of the obligations of the United States to the international community the fault of blind obedience to a President in the name of shallow “patriotism”?

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