ABA Opposes Bush ‘Enemy Combatants’ Policy

The American Bar Assn. on Monday overwhelmingly passed a resolution opposing a Bush administration anti-terrorism policy that bars U.S. citizens jailed in this country as “enemy combatants” from conferring with lawyers.

By a nearly 5-1 margin, the ABA’s House of Delegates approved the resolution, which also states that such individuals should be “afforded the opportunity for meaningful judicial review of their status,” subject to national security requirements.

So far, only two U.S. citizens have been publicly declared “enemy combatants.”

The administration, which contends that permitting lawyers to consult with such wartime detainees would interfere with efforts to gather intelligence information, sent U.S. Atty. John McKay of Seattle to argue against the measure.

“Importing criminal justice standards to the area of national security is a radical proposition,” McKay said. “The president is charged with protecting national security.... This question is ultimately about public policy, not the Constitution.”

Miami attorney Neal R. Sonnett, who heads the ABA’s task force on terrorism and took the lead in backing the resolution, said the 400,000-member group stands with President Bush in the battle “to root out those who would harm our nation.”

“But we can’t lose the Constitution in the process,” he added.

“If someone is designated as an ‘enemy combatant,’ they have to be able to go into court and say: ‘You’ve got the wrong guy.’ We want the administration to hear from us that there has to be a balance,” so that individual liberties are not violated in the name of protecting national security.

Albert Krieger, who heads the ABA’s criminal justice section, said that if the resolution had failed, “we would be acknowledging there is nothing wrong in creating ‘the disappeared’ -- not in Argentina, but here in America.”

David B. Rivkin Jr., a Washington attorney affiliated with the conservative Federalist Society, joined McKay in opposing the resolution. “We are talking about a time of war, not about permanently altering our American justice rules,” he said. He argued that if “enemy combatants” are able to see lawyers, it would impede the ability of government interrogators to foster “psychological dependency” in the captives that is likely to make them more willing to cooperate and provide data.

“I’m tired of hearing about lawyers as impediments,” Sonnett said. A report issued last year by the ABA terrorism task force said: “There may be circumstances in which providing a detainee with access to counsel would be unwise, due to the geographical location and the state of hostilities.” However, the report added: “Citizens and other persons lawfully present in the United States, detained within the United States far from the battlefield, should not fall within that category.”

In the report and in his speech Monday, Sonnett acknowledged that the 6th Amendment provision on the right to counsel does not technically apply to “enemy combatants” who have not been charged with crimes. “But there is no dispute that individuals who have been criminally charged do have a 6th Amendment right to counsel. And it is both paradoxical and unsatisfactory that uncharged U.S. citizen-detainees have fewer rights and protections than those who have been charged with serious criminal offenses,” Sonnett added.

Monday’s vote marked the third time since the Sept. 11 terrorist attacks that the ABA, the nation’s largest lawyers’ organization, has enacted civil liberties-related resolutions that the Bush administration opposed.

A year ago, the organization criticized the administration’s proposed use of military tribunals unless defendants were afforded certain due-process rights. Last summer, the ABA also voted to oppose America’s secret detention of foreign nationals suspected of terrorism or held as material witnesses in the aftermath of the Sept. 11 attacks.

Monday’s resolution, which passed, 368 to 76, also urges Congress -- in coordination with the executive branch -- to “establish clear standards and procedures governing the designation of U.S. citizens, residents or others who are detained within the U.S. as ‘enemy combatants.’ ”

Additionally, the resolution urges Congress and the administration to consider how U.S. policy adopted on these issues “may affect the response of other nations to future acts of terrorism.”

The California delegates voted overwhelmingly for the proposal. “I was really proud of this body,” said Los Angeles lawyer Daniel McIntosh. “Increasingly, when these questions of due process are posed, attorneys are standing up to the role they are supposed to serve as lawyers.”

The ABA task force report issued last year emphasized that “while we must have the means to prevent more attacks like those of Sept. 11, we must also ensure that there are sufficient safeguards to protect the innocent and prevent possible abuses.”

“We are a great nation not just because we are the most powerful, but because we are the most democratic. But indefinite detention, denial of counsel and overly secret proceedings could tear at the Bill of Rights, the very fabric of our great democracy,” the report added.

Monday’s vote came as the cases of Yaser Esam Hamdi and Jose Padilla are the subject of intense legal action.

Hamdi was captured during the war in Afghanistan and is being detained at a Navy brig in Norfolk, Va. In January, the U.S. 4th Circuit Court of Appeals in Richmond ruled that during a wartime situation, the president can indefinitely detain a U.S. citizen captured as an “enemy combatant” on a battlefield and deny that person access to a lawyer. Hamdi’s lawyer has said he plans to seek Supreme Court review.

Padilla was arrested in Chicago in May and currently is incarcerated at a Navy brig in Charleston, S.C. In December, U.S. District Judge Michael Mukasey ruled that Padilla -- who is accused of plotting with Al Qaeda to detonate a radioactive “dirty bomb” and has been described as “a critical intelligence source” by the government -- could meet with attorneys under strictly controlled conditions. Federal prosecutors have asked the judge to review his ruling.

In October, Rep. Adam B. Schiff (D-Burbank) introduced a bill that contains provisions similar to those in Monday’s resolution. The measure has been referred to two congressional committees, but no action has yet been taken.