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DEFENSE OFFENSIVE An American Bar Association proposal seeking to ensure that private attorneys who represent so-called enemy combatants in military tribunals are guaranteed certain due process rights was approved by the ABA’s 539-member House of Delegates on the final day of the ABA’s annual meeting in San Francisco, on Aug. 12. The proposal asks the administration to honor attorney-client privilege by not monitoring privileged conversations between accused terrorists and their civilian lawyers and to allow lawyers to be present during all phases of the proceedings and to be given full access to information necessary to the defense. Now that the proposal has been adopted, the association will officially start pressing the government to change rules affecting civilian defense counsel in military trials of terrorism suspects. “This proposal represents an attempt to help our government secure the safety and freedom of our own citizens and maintain the cherished standards of justice and due process that have made our nation great,” said outgoing ABA President Alfred Carlton Jr. when he introduced the measure Aug. 9. Carlton pointed to a report by the ABA Task Force on Treatment of Enemy Combatants, which was highly critical of the Department of Defense’s proposed rules regulating civilian defense lawyers. Under Defense Department guidelines, a prisoner can opt for a civilian defense counsel to supplement a guaranteed military defense counsel. The report cites six limitations that it claims prevent attorneys from providing effective counsel to defendants. These include government monitoring of attorney-client communications, lack of guaranteed access to all commission proceedings or information, restrictions on consultations with outside attorneys or experts, prohibitions from speaking publicly about a case, the costs of attorney background investigations, and the prohibition of non-U.S. citizen lawyers. “Ultimately, we have created a system that is being met with widespread scorn around the world,” said Neal Sonnett, who chairs the task force. But Sonnett and Carlton both stopped short of calling for an ABA boycott of the military tribunals if the government ultimately rejects its proposed revisions. Rather than declaring it unethical for ABA members to participate in the proceedings under the current regulations, Sonnett called it a “personal decision” that every lawyer has to make. “I am hopeful that the Department of Defense will change these rules so that lawyers can provide adequate defense to their clients,” Sonnett said. Another resolution, which opposed war crimes charges brought against soldiers in foreign courts under the concept of “universal jurisdiction,” did not fare as well. With about half the delegates having already left the meeting, a motion to indefinitely postpone the resolution passed 114-105. The resolution was brought in response to a suit filed in a Belgian court against Gen. Tommy Franks, the commander of U.S. forces in Iraq, for alleged war crimes. A suit has also been filed in Spain against the U.S. military for firing on a Baghdad hotel used to house journalists. Opponents said the resolution could undermine efforts to bring true despots to justice, pointing to several suits filed in U.S. courts that include allegations of torture and murder. Supporters, however, said the resolution was needed to protect U.S. forces. “Our soldiers are out there every day making decisions in the heat of battle which could come back to haunt them,” said Suzanne Spaulding, chair of the ABA’s Standing Committee on Law and National Security. — Jason Hoppin, Alexei Oreskovic,and Jahna Berry, The Recorder ABA DELEGATES OK PRIVILEGE CHANGES By a slim 17-vote margin, the ABA’s House of Delegates on Aug. 11 changed model rules governing the attorney-client privilege in the hopes of combating corporate fraud. The proposal allows lawyers to breach the duty of confidentiality if a client uses the lawyer’s advice to commit a crime or fraud. The rules were drawn up in the aftermath of the Enron, WorldCom, and other corporate scandals that shook the nation’s financial markets. “We’re talking about employees who lost their jobs and in some cases their pensions,” said new ABA President Dennis Archer. “This is in the best interests of our profession. It is in the best interests of the country.” Supporters of the change defeated three proposed amendments that would have, in various degrees, gutted the language of the new rules. The voice vote on the rule change was so close that floor “tellers” had to take a manual head count. The final tally was 218-201. Opponents of the rules argue that it could lead to the exclusion of lawyers from corporate boardrooms when questionable conduct is being considered. Supporters argue that 42 states already have some variation of the rule on the books, with no evidence of such consequences. New York University School of Law professor and legal ethics expert Stephen Gillers spoke in support of the change. He pointed out that not one lawyer from a state with a crime-fraud exception on the books has stepped forward to say that the profession suffered because of it. Also speaking in support were two past presidents of the ABA, as well as the outgoing president, Alfred Carlton Jr. Philadelphia lawyer Lawrence Fox opposed the changes. “They do not have a single nexus between the changes and what happened in any of the frauds,” Fox said. The ABA’s Model Rules of Professional Conduct merely provide guidance. They have no force unless adopted by individual state bar associations. — Jason Hoppin, The Recorder KENNEDY’S CALL TO ARMS In his Aug. 9 keynote speech at the ABA’s annual meeting in San Francisco, Supreme Court Justice Anthony Kennedy took the striking position that federal criminal laws are too punitive, asking for an overhaul of federal sentencing guidelines, an end to mandatory minimum sentences, and a more humanitarian approach to housing prisoners. “This is your justice system. They’re your prisons. And there’s something seriously wrong with them,” Kennedy told hundreds of lawyers gathered at the Louise M. Davies Symphony Hall. Kennedy pointed out that a vastly higher percentage of blacks are behind bars than other races. He also pointed out that the United States incarcerates people at seven times the rate of Western European nations. He gave the example of an 18-year-old sentenced to a minimum of five years in prison for possessing several grams of crack cocaine. “Ladies and gentlemen, I submit to you that an 18-year-old doesn’t know how long five years is,” Kennedy told the crowd. “Every day in prison is much longer than any day you’ve ever spent.” Kennedy decried recent sentencing changes, which he said have shifted the authority to show mercy on a defendant from the judge to the prosecutor — “sometimes to an assistant United States attorney not much older than the defendant.” Kennedy also called on politicians to be unafraid to pardon some of the nation’s 2.1 million prisoners. “The pardon power has been drained of its moral force. It should be reinvigorated,” Kennedy said. Kennedy framed his speech in terms of morality, arguing that prisoners should not be demeaned or degraded and calling on the ABA to help bring change. The call was answered by the ABA’s new president, Dennis Archer, who said on Aug. 11 that the organization would launch a critical examination of America’s criminal justice system from its high rates of incarceration and recidivism to the disproportionate imprisonment of minorities. Of particular concern, Archer said, were federal and state mandatory minimum guidelines. “It has been 10 years now. It is time to evaluate the results, especially when a justice brings it up,” said Archer. “This time next year, [at the annual convention] in Atlanta, we will have some recommendations.” During his speech, Kennedy did not touch on the recent Supreme Court term, during which he wrote the majority opinion that struck down a Texas law banning homosexual sodomy, triggering a vigorous national debate about privacy and gay rights. But in the second part of his address, he gave the audience a taste of the internationalist perspective that Court commentators have noted ran through a number of the high court’s opinions this past term. Assuming a statesman’s posture, Kennedy argued against teaching students a worldview based on relativism. Instead, he said, there are certain core values — “first principles” — that should be common among nations. Kennedy said there are far too many youths today who would stand by — in the name of tolerance for other cultures — while people suffer under oppressive or even genocidal regimes. “This is passivity and it’s indifference,” Kennedy said. “This is not tolerance. . . . This is callousness masquerading as tolerance.” — Jason Hoppin and Benjamin Temchine, The Recorder

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