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Loyal Opposition

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The ABA’s relationship with the current Bush administration never in­cluded much of a honeymoon. In March 2001, two months after George W. Bush’s first inauguration, the president announced he would no longer submit the names of federal judicial nominees to the ABA Standing Com­mittee on the Federal Judiciary prior to their formal announcements. His action ended a practice that had en­dured through nine presidential ad­ministrations covering 50 years—all the way back to Eisenhower.

It has been an uneasy relationship ever since, on several fronts.


Since Sept. 11, 2001, the Bush ad­ministration and the ABA often have differed on how the fight against terrorism can be conducted effectively without compromising individual privacy rights of Americans or standards for treatment of terrorism suspects under U.S. and international law.

These differences were evident again in August during the ABA Annual Meeting in San Francisco, although both outgoing ABA Presi­dent Karen J. Mathis and incoming Presi­dent William H. Neukom said the association has maintained a constructive relationship with the Bush administration despite differences over policy issues.

“The word adversarial doesn’t come to mind in the ABA’s relationship with any branch of government,” said Mathis of Denver. “We’ve had our disagreements, but the ABA has been consistent in its positions. The government is responsible for protecting the safety of our citizens, but we think it’s also important to protect their rights.”

At the meeting, the ABA’s policy-making House of Delegates adopted a policy urging Congress to pass legislation that would, in effect, reverse the interrogation policy for the Cen­tral Intelligence Agency set forth in an executive order issued by Presi­dent Bush less than a month earlier.

The ABA policy also urges Con­gress to affirm that interrogations of foreign persons by agents of the United States should be conducted in accordance with the “minimum protections” of Common Article 3 of the 1949 Geneva Conventions and in a manner consistent with the provisions of interrogation guidelines issued by the U.S. Army in 2006. The lead sponsor of the recommendation was the Association of the Bar of the City of New York.

Meanwhile, Mathis urged Con­gress to reconsider legislation that revised the Foreign Intelligence Surveillance Act to allow the government to monitor U.S. citizens without first obtaining court warrants. (The House was not asked to act on the issue.)

President Bush signed the bill only days before the start of the annual meeting. The measure gives the Na­tional Security Agency broader authority under FISA to conduct sur­veillance of telephone calls, e-mail messages and other communications between parties in the United States and other countries.

Critics say the latest revisions to FISA will allow the government to engage in more surveillance without first obtaining warrants from a court created to consider such requests.

“It is fortunate that the new law has a six-month sunset provision,” said Mathis, whose term ended at the close of the meeting, “but Con­gress should move at once when it reconvenes to require appropriate judicial congressional oversight whenever electronic surveillance involves U.S. citizens.”


Acting on another issue, the House adopted a recommendation relating to the ongoing controversy over the firings of nine U.S. attorneys in 2006. The firings fueled calls for the resignation of Attor­ney General Alberto R. Gonzales, who announced on Aug. 27 that he was stepping down.

The policy states that the ABA “supports the principle that the appointment, retention and replacement of United States attorneys and career government attorneys, and the exercise of their professional judgment and discretion, should be insulated from improper political considerations.” The primary sponsor was the Bar Associa­tion of the District of Columbia.

Speaking at a news conference, Neukom of Seattle said there appeared to be misunderstanding “in some parts of the government” regarding impartiality of Justice De-­ partment attorneys, especially pros­ecutors. But he also said the House vote “reflects a longtime ABA belief that U.S. attorneys should be insulated in their day-to-day work from partisan politics.”

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