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Despite a plea to table the motion from the U.S. Solicitor General, the American Bar Association house of delegates overwhelmingly approved a resolution urging President Bush to set guidelines giving captured al-Qaida fighters extensive legal rights and Congress a say in establishing any military tribunals to try alleged terrorists. The house, the ABA’s policy-making arm, voted 286-147 to pass the resolution that was co-sponsored by the Bar Association of the District of Columbia and the Association of the Bar of the City of New York, each of which had its own proposal on the original agenda. While most people were preparing to sit down and watch the Super Bowl on Sunday afternoon, representatives from the two bar associations ironed out minor differences while participating in the ongoing ABA Midyear Meeting in Philadelphia. The Bar Association of San Francisco, the Beverly Hills Bar Association and the ABA’s section of individual rights and responsibilities also decided to co-sponsor the bill. The vote means the ABA, though not contesting Bush’s power to use tribunals, insists that the panels be used only in limited circumstances, and under established legal and constitutional rules. Bush made a broad announcement in November that the United States might use tribunals to try suspected terrorists but did not spell out exactly how they would operate, nor who specifically would be tried. He left the task of developing those guidelines in the hands of Secretary of Defense Donald Rumsfeld. The Pentagon is nearly finished with that process. In respect to the president’s military order, the resolution states that the president and Congress should assure that the law and regulations governing any tribunal will: � not be applicable to United States citizens, lawful resident aliens and other persons lawfully present in this country; � not be applicable to persons apprehended or to be tried in the United States, save for those subject to the settled and traditional law of war who engage in conduct alleged to be in violation of such a war; � not be applicable to cases in which violations of federal or state laws, as opposed to violations of such law of war, are alleged; � not permit indefinite detention of persons subject to the order; � require that its procedures for trials and appeals be governed by the Uniform Code of Military Justice and provide the rights afforded in courts-martial thereunder, including, but not limited to, provision for certiorari review by the U.S. Supreme Court (in addition to the right to petition for a writ of habeas corpus), the presumption of innocence, proof beyond a reasonable doubt and unanimous verdicts in capital cases; and � require compliance with Articles 14 and 15 of the International Covenant on Civil and Political Rights, including, but not limited to, provisions regarding prompt notice of charges, representation by counsel of choice, adequate time and facilities to prepare the defense, confrontation and examination of witnesses, assistance of an interpreter, the privilege against self-incrimination, the prohibition of ex post facto application of law, and an independent and impartial tribunal, with the proceedings open to the public and press or, when proceedings may be validly closed to the public and press, trial observers, if available, who have appropriate security clearances. In addition, the ABA urged the executive and legislative branches to establish and implement procedures for selecting venues for trial by military tribunals, to give full consideration to the impact of its choices and precedent in the prosecution of U.S. citizens in other nations and the use of international legal norms in shaping other nations’ responses to future acts of terrorism. New York City Bar President Evan Davis said he and the other supporters of the proposal support Bush’s quest to bring all terrorists to justice but not without procedural fairness and separation of powers. “We want to bring these terrorists to justice with justice,” Davis said. Raquel Rodriguez, a delegate from Florida, gave the chief speech in opposition to the resolution. Rodriguez, looking at the measure from the perspectives of international law, constitutional law and common sense, said the resolution was flawed. Rodriguez said President Bush has the right to prosecute terrorists whether they are found in the United States or abroad and that the U.S. Supreme Court has ruled that no court has habeas corpus review power over alien prisoners. Rodriquez said the resolution would hurt President Bush’s power as commander-in-chief and that in times of public emergency he can move away from the International Covenant. After a series of friendly amendments and proposed amendments from those who oppose the resolution, there was a close vote to table it. The motion to table the resolution failed, 233-205. U.S Solicitor General Theodore Olson had asked the house to delay its vote indefinitely so that the Bush administration could release its procedures. The White House and other administration officials lobbied the ABA not to take a position, calling it premature to do so before the rules are released. Olson reminded the delegates of one of the central covenants of the medical profession — to “first do no harm.” The list of conditions is too rigid, and could tie Bush’s hands as the United States fights a changing war on terror, Olson said. The administration needs “our support and the flexibility to respond to circumstances we are still attempting to comprehend,” Olson said. Olson kicked off the two-day house of delegates meeting Monday morning with an emotional recount of the events of Sept. 11 — the day he lost his wife, former federal prosecutor and conservative pundit Barbara Olson, who was on the plane that crashed into the Pentagon. Choking back tears, Olson described his wife as “the quintessential American,” who died simply because of her citizenship and the rights that come with it. Al-Qaida and its supporters, he said, despise the freedoms Americans cherish and have not only declared war on this country but also declared hatred against it. Both delegates from the Philadelphia Bar Association, Fox, Rothschild, O’Brien & Frankel’s Abraham Reich and Blank Rome Comisky & McCauley’s Lawrence Beaser, voted in favor of the resolution. Reich, though, supported the efforts to table it. Among the local delegates from the Pennsylvania Bar Association, Litvin Blumberg Matusow & Young’s Clifford Haines voted in favor while Saul Ewing’s Timothy Carson opposed it.

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