News
Judges and Judiciary
Aug. 12, 2002
Citizen Detainees Should Have Lawyers, ABA Says
WASHINGTON - The American Bar Association has plunged into the heart of controversies over the legal side of the war on terrorism, but its recommendations may fall on deaf ears in Congress.
Reporter's Notebook
By James Gordon Meek
Daily Journal Staff Writer
WASHINGTON - The American Bar Association has plunged into the heart of controversies over the legal side of the war on terrorism, but its recommendations may fall on deaf ears in Congress.
The detention of so-called "enemy combatants" on U.S. soil is a subject the ABA is studying through a special task force, which released its preliminary recommendations on Friday during the bar group's annual meeting.
The report says citizens held here should have access to courts and counsel, and it calls on Congress to intervene if the Bush administration continues to detain alleged American terrorists without charging them.
"United States citizens who are detained by the government have a right under the Constitution to seek release from their detention," the panel said.
Access to the courts to challenge detention is "a fundamental right which Congress has not suspended."
The report also urged the Bush administration to explain more fully its legal logic in detaining U.S. citizens indefinitely.
"It cannot be sufficient for a president to claim that the executive [branch] can detain whomever it wants, for as long as it wants, as long as the detention bears some relationship to a terrorist act once committed by somebody against the United States," the report said.
The ABA House of Delegates expects to grapple with the issue today or tomorrow as the conference concludes.
"These terrorists must be hunted, they must be tracked down, they must be captured, they must be arrested, they must be brought to justice," Robert Hirshon, the president of the ABA, said. "But in doing it, they must be brought to justice in the American way."
Many legal experts have been deeply troubled by the arrests of several U.S.-born alleged "enemy combatants," including American Talib John Walker Lindh of Marin, who has pleaded guilty to taking up arms against the United States, and fellow battlefield detainee Yaser Hamdi, now held in a Norfolk, Va., military brig.
Of most concern to the ABA task force and other legal experts is the detention of José Padilla, who was collared at Chicago's O'Hare Airport as he debarked an overseas flight this year. At the time of his arrest, Padilla allegedly was considering acquiring and detonating a radiological "dirty bomb."
Padilla initially was held on a material-witness warrant, but a New York federal court vacated that order and complied with the government's request to transfer Padilla to a military jail in South Carolina. He has been denied access to a lawyer.
Hirshon said the Padilla and Hamdi cases are something "ordinary people should definitely be concerned about."
Neil R. Sonnett, the chair of the task force, said it's up to lawmakers to address the controversy.
"We're suggesting that Congress needs to get involved to create clear standards and procedures," Sonnett said. "They don't have to be overly rigid standards. They should be standards that have flexibility to meet a new type of war and new type of terrorists."
But Senate sources say that, so long as the body is evenly split between Democrats and Republicans who support the White House, Democrat-written legislation - which has been contemplated - is unlikely to be introduced.
"The Senate Judiciary Committee is monitoring this situation very closely and raising questions along the way," said a committee source, who asked to remain anonymous.
The source said the committee majority is particularly interested in "the scope of power that the administration and attorney general are assuming."
The midterm elections could tilt the balance of power in the Senate back toward Republicans, or Democrats could gain a stronger hand if they win a greater majority.
A Department of Justice spokesman brushed aside the ABA task force's request that the Bush administration give a fuller explanation about or otherwise limit detentions of U.S. citizens denied due process.
"We fully reviewed constitutional laws, the international laws of war and Supreme Court precedents and are confidant that we are on solid ground in asserting this authority," said Mark Corallo, press secretary to Attorney General John D. Ashcroft.
Incoming ABA President A.P. Carlton said Thursday that he hoped to rid the ABA of its liberal reputation.
Kent Scheidegger, litigation director at the conservative Criminal Justice Legal Foundation in Sacramento, said the task force's recommendations on enemy combatants won't impede Carlton's goal.
"It's in line with what we expect a bar association to do," Scheidegger said of the report. "It's not the kind of thing that would make me quit the ABA - which I did 13 years ago."
JUDICIAL ELECTIONS - Tom Wood is a strict constructionist. He's a card-carrying member of the National Rifle Association and proudly touts his membership in the conservative Federalist Society. If you elect him judge, he'll reverse a hundred years of progress in civil rights in the state.
Tom Wood also is pure fiction.
At one of the most anticipated forums during the ABA annual meeting, speakers debated judicial elections and the fallout of the Supreme Court's recent decision in Republican Party of Minnesota v. White, 2002 DJDAR 7259 (U.S. June 27, 2002).
"Tom Wood" was offered by panelists as a generic example of negative campaigning against an elected jurist who may - or may not - be beholden to special interests or political ideologies in his political campaign yet is trusted to be objective and unbiased in his post-election rulings.
In White, the Supreme Court ruled that, once states decide to elect their judges, they may not prevent candidates from announcing their views on political and legal issues.
The justices' 5-4 decision struck down Minnesota's "announce rule," one of the most restrictive in the nation. The announce rule bans judicial candidates from announcing their views on disputed legal or political issues.
The decision may affect the canons of ethics for judges and judicial candidates in the 38 other states - including California - where judges are elected. Almost all the states' rules are based on the ABA's model rules.
James Bopp Jr., a prominent First Amendment lawyer and conservative advocate with Bopp, Coleson & Bostrom in Terre Haute, Ind., said from the lectern Friday that the First Amendment should apply to judges as it does to anyone else in government. Bopp represented the challengers to the Minnesota rule at the Supreme Court.
"I don't see Justice [John Paul] Stevens' point that we don't want judges to be politicians, as if they're not involved in government and, in fact, even if appointed, don't achieve their position through a political process," Bopp said.
But an audience member, a judge who didn't otherwise identify himself, said judicial elections confuse the appearance of impartial justice.
Sherrilyn Ifill, a professor of law at the University of Maryland, said such concerns cause people "the jitters," which are unlikely to be calmed easily by Minnesota v. White.
A Texas appeals court judge in the audience made one of the more ironic observations of the session, commenting that defending the Constitution sometimes means paying a political price.
"If we look at these hot-button issues that get judges defeated, they're almost always [related to] our Bill of Rights - when judges vote to uphold our Bill of Rights," Judge Bea Ann Smith said in decrying the notion of "popular" justice.
"If we lose sight of the fact that we are the trustees of the minorities and become only the representatives of the majorities, we're not fulfilling our role as judges," Smith said.
FUTURE PRESIDENT? - As the ABA prepares to elect former Detroit Mayor Dennis Archer the bar's first African-American president-elect, another African-American lawyer is waiting in the wings.
Richmond, Va., attorney Robert J. Grey Jr. is the only announced candidate for the presidential term beginning in August 2004. If elected at the ABA's midyear meeting in February 2003, he would become the second African-American lawyer to lead the lawyers group.
Grey of LeClair Ryan said he supports Carlton's objective of de-liberalizing the association and mending fences with the Bush White House.
But Grey says restoring the ABA's former role of vetting judicial candidates before they're nominated might be an impossible task for Carlton and crew.
"I don't know whether there is a predisposition there already toward this association that is not going to go away," Grey said outside a meeting Friday of the association's Board of Governors. "Can I make your worst enemy like you? I don't know."
Regardless of what the White House might think of the ABA's political leanings, the bar group should focus on matters of justice and the law, he said, in order to gain the public trust.
"I don't know if we can change the [Bush] administration's mind, but the public may change the administration's mind by saying, 'We like what the profession and the association are doing as it is addressing these problems, because it looks responsible to us,'" Grey said. "That's how you do it."
The detention of so-called "enemy combatants" on U.S. soil is a subject the ABA is studying through a special task force, which released its preliminary recommendations on Friday during the bar group's annual meeting.
The report says citizens held here should have access to courts and counsel, and it calls on Congress to intervene if the Bush administration continues to detain alleged American terrorists without charging them.
"United States citizens who are detained by the government have a right under the Constitution to seek release from their detention," the panel said.
Access to the courts to challenge detention is "a fundamental right which Congress has not suspended."
The report also urged the Bush administration to explain more fully its legal logic in detaining U.S. citizens indefinitely.
"It cannot be sufficient for a president to claim that the executive [branch] can detain whomever it wants, for as long as it wants, as long as the detention bears some relationship to a terrorist act once committed by somebody against the United States," the report said.
The ABA House of Delegates expects to grapple with the issue today or tomorrow as the conference concludes.
"These terrorists must be hunted, they must be tracked down, they must be captured, they must be arrested, they must be brought to justice," Robert Hirshon, the president of the ABA, said. "But in doing it, they must be brought to justice in the American way."
Many legal experts have been deeply troubled by the arrests of several U.S.-born alleged "enemy combatants," including American Talib John Walker Lindh of Marin, who has pleaded guilty to taking up arms against the United States, and fellow battlefield detainee Yaser Hamdi, now held in a Norfolk, Va., military brig.
Of most concern to the ABA task force and other legal experts is the detention of José Padilla, who was collared at Chicago's O'Hare Airport as he debarked an overseas flight this year. At the time of his arrest, Padilla allegedly was considering acquiring and detonating a radiological "dirty bomb."
Padilla initially was held on a material-witness warrant, but a New York federal court vacated that order and complied with the government's request to transfer Padilla to a military jail in South Carolina. He has been denied access to a lawyer.
Hirshon said the Padilla and Hamdi cases are something "ordinary people should definitely be concerned about."
Neil R. Sonnett, the chair of the task force, said it's up to lawmakers to address the controversy.
"We're suggesting that Congress needs to get involved to create clear standards and procedures," Sonnett said. "They don't have to be overly rigid standards. They should be standards that have flexibility to meet a new type of war and new type of terrorists."
But Senate sources say that, so long as the body is evenly split between Democrats and Republicans who support the White House, Democrat-written legislation - which has been contemplated - is unlikely to be introduced.
"The Senate Judiciary Committee is monitoring this situation very closely and raising questions along the way," said a committee source, who asked to remain anonymous.
The source said the committee majority is particularly interested in "the scope of power that the administration and attorney general are assuming."
The midterm elections could tilt the balance of power in the Senate back toward Republicans, or Democrats could gain a stronger hand if they win a greater majority.
A Department of Justice spokesman brushed aside the ABA task force's request that the Bush administration give a fuller explanation about or otherwise limit detentions of U.S. citizens denied due process.
"We fully reviewed constitutional laws, the international laws of war and Supreme Court precedents and are confidant that we are on solid ground in asserting this authority," said Mark Corallo, press secretary to Attorney General John D. Ashcroft.
Incoming ABA President A.P. Carlton said Thursday that he hoped to rid the ABA of its liberal reputation.
Kent Scheidegger, litigation director at the conservative Criminal Justice Legal Foundation in Sacramento, said the task force's recommendations on enemy combatants won't impede Carlton's goal.
"It's in line with what we expect a bar association to do," Scheidegger said of the report. "It's not the kind of thing that would make me quit the ABA - which I did 13 years ago."
JUDICIAL ELECTIONS - Tom Wood is a strict constructionist. He's a card-carrying member of the National Rifle Association and proudly touts his membership in the conservative Federalist Society. If you elect him judge, he'll reverse a hundred years of progress in civil rights in the state.
Tom Wood also is pure fiction.
At one of the most anticipated forums during the ABA annual meeting, speakers debated judicial elections and the fallout of the Supreme Court's recent decision in Republican Party of Minnesota v. White, 2002 DJDAR 7259 (U.S. June 27, 2002).
"Tom Wood" was offered by panelists as a generic example of negative campaigning against an elected jurist who may - or may not - be beholden to special interests or political ideologies in his political campaign yet is trusted to be objective and unbiased in his post-election rulings.
In White, the Supreme Court ruled that, once states decide to elect their judges, they may not prevent candidates from announcing their views on political and legal issues.
The justices' 5-4 decision struck down Minnesota's "announce rule," one of the most restrictive in the nation. The announce rule bans judicial candidates from announcing their views on disputed legal or political issues.
The decision may affect the canons of ethics for judges and judicial candidates in the 38 other states - including California - where judges are elected. Almost all the states' rules are based on the ABA's model rules.
James Bopp Jr., a prominent First Amendment lawyer and conservative advocate with Bopp, Coleson & Bostrom in Terre Haute, Ind., said from the lectern Friday that the First Amendment should apply to judges as it does to anyone else in government. Bopp represented the challengers to the Minnesota rule at the Supreme Court.
"I don't see Justice [John Paul] Stevens' point that we don't want judges to be politicians, as if they're not involved in government and, in fact, even if appointed, don't achieve their position through a political process," Bopp said.
But an audience member, a judge who didn't otherwise identify himself, said judicial elections confuse the appearance of impartial justice.
Sherrilyn Ifill, a professor of law at the University of Maryland, said such concerns cause people "the jitters," which are unlikely to be calmed easily by Minnesota v. White.
A Texas appeals court judge in the audience made one of the more ironic observations of the session, commenting that defending the Constitution sometimes means paying a political price.
"If we look at these hot-button issues that get judges defeated, they're almost always [related to] our Bill of Rights - when judges vote to uphold our Bill of Rights," Judge Bea Ann Smith said in decrying the notion of "popular" justice.
"If we lose sight of the fact that we are the trustees of the minorities and become only the representatives of the majorities, we're not fulfilling our role as judges," Smith said.
FUTURE PRESIDENT? - As the ABA prepares to elect former Detroit Mayor Dennis Archer the bar's first African-American president-elect, another African-American lawyer is waiting in the wings.
Richmond, Va., attorney Robert J. Grey Jr. is the only announced candidate for the presidential term beginning in August 2004. If elected at the ABA's midyear meeting in February 2003, he would become the second African-American lawyer to lead the lawyers group.
Grey of LeClair Ryan said he supports Carlton's objective of de-liberalizing the association and mending fences with the Bush White House.
But Grey says restoring the ABA's former role of vetting judicial candidates before they're nominated might be an impossible task for Carlton and crew.
"I don't know whether there is a predisposition there already toward this association that is not going to go away," Grey said outside a meeting Friday of the association's Board of Governors. "Can I make your worst enemy like you? I don't know."
Regardless of what the White House might think of the ABA's political leanings, the bar group should focus on matters of justice and the law, he said, in order to gain the public trust.
"I don't know if we can change the [Bush] administration's mind, but the public may change the administration's mind by saying, 'We like what the profession and the association are doing as it is addressing these problems, because it looks responsible to us,'" Grey said. "That's how you do it."
#337180
James Gordon Meek
Daily Journal Staff Writer
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