This Month's News

President acts on Guantanamo, military commissions

Within days of his Jan. 20 inauguration, President Barack Obama began taking the first steps toward closing the Guantanamo Bay Naval Base detention facility and issued an order banning torture of individuals held by the United States in armed conflicts. Read more...

Lilly Ledbetter Fair Pay Act becomes law

In the first bill-signing ceremony of his presidency, President Obama signed ABA-supported legislation Jan. 29 that restores the opportunity for individuals subjected to unlawful pay discrimination to effectively assert their rights under federal anti-discrimination laws. Read more...

House of Delegates to consider range of issues

The ABA House of Delegates, convening Feb. 16 in Boston in conjunction with the association’s Midyear Meeting, will be considering policy recommendations ranging from habeas rights for Guantanamo Bay detainees to a series of proposals from the Tort and Insurance Practice Section concerning the impact of catastrophes on litigation. Read more...

New law will expand children’s health program

LPresident Obama signed legislation Feb. 4 to extend and improve the State Children’s Health Insurance Program (SCHIP), a program jointly financed by the federal and state governments to provide health insurance to uninsured low-income children. Read more...

House Judiciary panel debates D.C. voting rights

The ABA last month reaffirmed strong support for legislation to provide a voting seat in the House of Representatives for the District of Columbia. Read more...

Eric Holder becomes U.S. attorney general

U.S. Attorney General Eric H. Holder Jr., who was sworn in Feb. 3 as the first African-American to hold that post, told Justice Department employees that “we must restore the credibility of this department, which has been so badly shaken by allegations of improper political interference.” Read more...

President rescinds “Mexico City policy”

Calling the provisions “unnecessarily broad and unwarranted under current law,” President Obama moved quickly Jan 23 to rescind the “Mexico City policy,” which directed the U.S. Agency for International Development (USAID) to withhold funds from foreign nongovernmental agencies that provide abortion-related counseling and services, or lobby a foreign government to make abortion available, even if they do so with their own funds. Read more...


WASHINGTON NEWS BRIEFS

DOMESTIC VIOLENCE: ABA President H. Thomas Wells Jr. recently urged the Obama administration to increase funding for and improve the Legal Assistance for Victims Grant Program (LAV) as a priority for the Office on Violence Against Women (OVW). Read more...

HEALTH CARE: ABA Governmental Affairs Director Thomas M. Susman conveyed the association’s health care policies to both the Obama administration and the House and Senate last month. Read more...

PRISONER TELEPHONE SERVICES: The ABA wrote to the Federal Communications Commission (FCC) last month to support a proposal that sets forth the basis for fair and final resolution of issues related to prisoner telephone services. Read more...


COMPLETE ARTICLES

President acts on Guantanamo, military commissions

Within days of his Jan. 20 inauguration, President Barack Obama began taking the first steps toward closing the Guantanamo Bay Naval Base detention facility and issued an order banning torture of individuals held by the United States in armed conflicts.

The first action came Jan 21 when, at the president’s direction, Secretary of Defense Robert M. Gates ordered a suspension of active military commission proceedings at Guantanamo Bay so that the new administration can review the process and the cases currently pending before the commissions.

Three executive orders issued by the president the next day outlined the following objectives:

  • close the detention center at Guantanamo Bay within one year, conduct a review of each individual currently detained at Guantanamo, assure humane standards of confinement, and stop referrals of cases to military commissions;
  • establish a Cabinet-level Special Interagency Task Force on Detainee Disposition to identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations; and
  • prohibit torture by ensuring that any individual in the custody of or under the effective control of any officer, employee or other agency of the U.S. government is not subjected to any interrogation technique or approach that is not authorized by the Army Field Manual; establish a Cabinet-level Special Interagency Task Force on Interrogation and Transfer Policies to report its recommendations within 180 days; and close detention facilities operated by the Central Intelligence Agency.

ABA President H. Thomas Wells Jr., in a statement responding to the president’s actions, said the order initiating review of prosecutions of detainees at Guantanamo Bay strengthens America’s commitment to the rule of law. He urged that any new proceedings restore and adhere to the established principles of due process and fairness that are fundamental to the nation’s concept of justice.

“Without question, terrorists who plotted against our nation and killed innocent Americans should be held fully accountable for their crimes,” Wells said, adding that at the same time, “no matter how outrageous the conduct, we must ensure that these detainees receive fair trials that meet the highest standards of due process and justice for which this nation long has been respected throughout the world and comply with the obligations of international treaties.”

Wells emphasized that sufficient resources should be provided to ensure that any proceedings with the potential for the death penalty comply with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

“The ABA is prepared,” he said, “to help ensure adherence to those principles and standards and full compliance with the rule of law so precious to our democracy.”

The association also has longstanding policy opposing U.S. torture of detainees and has expressed serious concerns about the military commission process, which was enacted into law in 2006.

In response to concerns about one pending case – against Khalid Sheik Mohammed (KSM) and four others charged in the 9/11 attacks – the ABA joined three other national organizations that also have been officially designated as trial observers to file an amicus curiae brief Jan. 14. The brief seeks to rescind a protective order issued by a military judge that the groups maintain is overbroad and unjustifiably would prevent public scrutiny of the trial. The other organizations joining with the ABA to file the brief are the American Civil Liberties Union, Human Rights First and Human Rights Watch.

Following the president’s executive order regarding military commissions, the military judge in the case halted the KSM proceedings.

The ABA also recently submitted an amicus curiae brief to the U.S. Supreme Court in the case of Ali Saleh Kahlah Al-Marri, a citizen of Qatar and legal U.S. resident who was arrested in 2001 and has been held indefinitely without charge in the United States since 2003 as an “enemy combatant.”

According to the ABA brief, “The constitutionally guaranteed criminal due process rights that are available to all citizens and persons lawfully present in the United States may not be abrogated during military detention unless such persons are given the opportunity for prompt meaningful judicial review. This review must include meaningful access to, and effective assistance of, counsel. Also, any resulting detention can be permissible only if pursuant to an Act of Congress that establishes constitutionally permissible standards and procedures.”

President Obama issued a separate memorandum Jan. 22 requesting an administrative review of Al-Marri’s detention, noting that Al-Marri is the only individual designated as an “enemy combatant” being held by the Defense Department within the United States. The Supreme Court is expected to hear arguments in the case this term.

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Lilly Ledbetter Fair Pay Act becomes law

Lilly Ledbetter stands behind President Barack Obama as he signs the Lilly Ledbetter Fair Pay Act. Others attending the ceremony were, from left: Vice President Joseph R. Biden Jr.; Secretary of State Hillary Clinton; numerous senators and representatives, including Sen. Patty Murray (D-Wash.), Rep. Steny Hoyer (D-Md.), Sen. Barbara Mikulski (D-Md.); Sen. Olympia Snowe (R-Maine); and Del. Eleanor Holmes Norton (D-D.C.).

In the first bill-signing ceremony of his presidency, President Obama signed ABA-supported legislation Jan. 29 that restores the opportunity for individuals subjected to unlawful pay discrimination to effectively assert their rights under federal anti-discrimination laws.

P.L. 111-2 (S. 181), overrules the Supreme Court decision in Ledbetter v. Goodyear Tire and Rubber Co., 550 U.S. 618 (2007). In that decision, the Supreme Court ruled that employees could not challenge ongoing compensation discrimination under Title VII of the Civil Rights Act if the employer’s original discriminatory decision occurred more than 180 days before, even when the employee continued to receive paychecks based on the discriminatory pay decision.

In the case, the pay of Lilly Ledbetter fell 14 to 40 percent behind that of her male counterparts during her 30-year career at the company. When she retired and became aware that she had been making much less than male workers in the same position, she filed a formal charge with the Equal Employment Opportunity Commission (EEOC) and then a pay discrimination suit.

The trial court awarded her back pay, compensatory damages and punitive damages. The 11th Circuit Court of Appeals overturned the verdict, however, after examining only the pay decisions made within the 180-day period prior to her initial filing to the EEOC. The court concluded that there was insufficient evidence to prove that Goodyear acted with discriminatory intent. The Supreme Court affirmed the circuit court’s decision, ruling that Ledbetter’s case, resulting from intentional acts of discrimination by Goodyear over the course of her career, in fact was time-barred because no discriminatory acts were alleged to have taken place within the 180-day statute of limitations period.

The new law clarifies that the statute of limitations for claims of pay discrimination runs from each paycheck reflecting the improper disparity.

President Obama called the legislation an important step toward ensuring fundamental fairness for American workers.

“Ultimately, equal pay isn’t just an economic issue for millions of Americans and their families, it’s a question of who we are and whether we’re truly living up to our fundamental ideals,” he said. The president emphasized that signing the bill is intended to send a “clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; that it’s not just unfair and illegal, it’s bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn’t about some abstract legal theory or footnote in a casebook.” Justice, he said, is about how laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

ABA President H. Thomas Wells Jr., in a statement issued the day the bill was signed, applauded the bipartisan cooperation that led to the law’s enactment and pointed out that the new law restores a key provision of Title VII of the 1964 Civil Rights Act as it has been enforced for 40 years, thereby renewing the federal commitment to end pay discrimination.

“The Lilly Ledbetter Fair Pay Act of 2009 restores the opportunity for redress for the very workers who suffer the most from unfair pay practices – the ones who have experienced the hidden injustice of unequal pay for the longest time.” Wells emphasized.

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House of Delegates to consider range of issues

The ABA House of Delegates, convening Feb. 16 in Boston in conjunction with the association’s Midyear Meeting, will be considering policy recommendations ranging from habeas rights for Guantanamo Bay detainees to a series of proposals from the Tort and Insurance Practice Section concerning the impact of catastrophes on litigation.

Also on the agenda are policy resolutions affecting the legal rights of military personnel, immigrants and the elderly; treatment of juvenile sex offenders; and selection of administrative law judges.

In addition, the ABA Board of Governors will set the association’s legislative and governmental priorities for the first session of the 111th Congress based on an annual survey of bar leaders and recommendations from the Governmental Affairs Office and the Standing Committee on Governmental Affairs.

Other highlights of the meeting include several programs, including “The Assumption of Justice: A Dialogue on Color, Ethnicity and the Courts,” “The New Administration, the New Congress and the Federal Judiciary – Judicial Appointments, Compensation and Judicial Relations,” “HIV and the Rule of Law: A Legal Roadmap for a New Administration,” and “Implementing Health Care Reform: The Massachusetts Example.”

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New law will expand children’s health program

President Obama signed legislation Feb. 4 to extend and improve the State Children’s Health Insurance Program (SCHIP), a program jointly financed by the federal and state governments to provide health insurance to uninsured low-income children.

Children covered under the program, which was established in 1997 and is administered by the states, are those whose parents are not poor enough to qualify for Medicaid but who cannot afford private insurance. Approximately 7.4 million children were enrolled in the program during 2008, and the new law, P.L. 111-3 (H.R. 2), reauthorizes SCHIP for four and a half years and is expected to expand the program’s reach to another 4 million children by 2013. The program will be funded by an increase in tobacco taxes.

P.L. 111-3 also lifts a five-year waiting period for legal immigrant children and pregnant women by allowing states to provide Medicaid and SCHIP coverage to those who have been in the country for less than five years but are otherwise eligible.

In a letter urging passage of the legislation, ABA Governmental Affairs Director Thomas M. Susman cited the association’s support for ensuring prenatal care, comprehensive health care for children 18 years of age and younger, and coverage for qualified legal immigrants who have been in the country for less than five years.

“If legal immigrant children do not receive needed immunizations and proper care for communicable diseases, not only do they suffer because of this lack of health care, but other children living in the United States might well be exposed to diseases to which they would not otherwise have been exposed,” Susman said. In addition, he noted that if pregnant women who are immigrants do not receive prenatal care because they have been in the country less than five years, their children may not be as healthy, and the health care expenses of these children are likely to be higher once they do qualify for Medicaid and SCHIP coverage.

The House first passed H.R. 2 on Jan. 14 by a 289-139 vote. The Senate amended the bill before passing its version Jan. 29 by a 66-32 vote. The House accepted the Senate changes Feb. 4 and sent the bill to President Obama, who signed it the same day.

The president said that reauthorization of the Children’s Health Insurance Program fulfills “one of the highest responsibilities we have; to ensure the health and well-being of our nation’s children.”

“It is a responsibility that has only grown more urgent as our economic crisis has deepened, health care costs have exploded, and millions of working families are unable to afford health insurance,” he said, calling the legislation a “down payment” on his commitment to provide health care coverage for every American.

In a statement issued Feb. 4, ABA President H. Thomas Wells Jr. applauded the reauthorization, emphasizing that “lawmakers acted fairly and wisely by removing a five-year waiting period for otherwise-eligible immigrant children to participate in the program.”

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House Judiciary panel debates D.C. voting rights

The ABA last month reaffirmed strong support for legislation to provide a voting seat in the House of Representatives for the District of Columbia.

Del. Eleanor Holmes Norton (D-D.C.), sponsor of the D.C. House Voting Rights Act, leads a rally on Capitol Hill.

“In a country that cherishes the principle of a government ‘of the people, by the people, and for the people,’ it seems inconceivable that American citizens residing in the capital do not have voting representation in the U.S. Congress. It is time to correct this injustice,” ABA Governmental Affairs Director Thomas M. Susman said in a letter submitted for a hearing held Jan. 27 by the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties.

Susman noted that our nation is devoting significant resources to promoting representative democracy abroad and yet there are more than 500,000 American citizens residing in the District of Columbia who are not afforded that right at home. “Depriving a sizeable segment of our own population of the fundamental right to voting representation undermines the U.S. message of equality under the law,” he said.

At the hearing, House Majority Leader Steny Hoyer (D-Md.) testified that he plans to bring the legislation – H.R. 157, sponsored by Del. Eleanor Holmes Norton (D-D.C.) – to the House floor for a vote as quickly as possible. The legislation, a product of years of cooperative effort and compromise, would establish the District of Columbia as a congressional district for representation in the House and also would provide a new House seat for Utah, the state that would be next in line to receive an additional seat according to the most recent U.S. Census.

Sens. Joe Lieberman (I-Ct.) and Orrin G. Hatch (R-Utah) introduced a companion bill, S. 160, in the Senate.

Discussion during the hearing focused on the constitutionality of the bill. Susman wrote that the ABA concurs with the conclusion reached by numerous constitutional and legal experts that Congress has the authority to provide voting representation to D.C. residents under the “District Clause” of the Constitution. That clause – Article I, Section 89, Clause 17 – confers upon Congress the power “to exercise exclusive legislation in all cases whatsoever over such District….”

Congress exercised this power in 1790 when it accepted the cession by Maryland and Virginia of the 10-mile square area constituting the District of Columbia and provided by statute that its residents would continue to enjoy the same legal rights – including rights to vote in federal and state elections – that they possessed under Maryland and Virginia laws. Voting representation in Congress for District residents ended, however, when the District became the seat of the federal government under the Organic Act of 1801. That act provided for governance of the District but contained no provisions for District residents to vote in elections for Congress.

House Judiciary Committee Chairman John Conyers Jr. (D-Mich.) maintained that the District Clause gives Congress the authority to give the District a vote and explained that the District Clause has been used on many occasions to treat the District like a state in situations involving diversity jurisdiction, taxation, 11th Amendment immunity, alcohol regulation, interstate commerce, and civil action for deprivation of rights. He added that giving Utah an at-large seat also is constitutional under Article I, Section 4, which gives Congress authority over federal elections.

Wade Henderson, president and CEO of the Leadership Conference on Civil Rights; Georgetown University law professor Viet Dinh, and former Rep. Tom Davis (D-Va.) also testified that the legislation is constitutional and supported passage of H.R. 157.

Opponents included Reps. Louie Gohmert (R-Texas) and Jason Chaffetz (R-Utah), and George Washington University law professor Jonathan Turley.

Turley maintained that the District is not a “state” under the Constitution, and only states may vote on the floor of the House. Congress, he said, cannot legislatively amend the Constitution by re-defining a voting member of the House. While agreeing that is it a terrible injustice for District residents not to have a vote in Congress and that there are alternatives ways to address the issue, he predicted that H.R. 157, if enacted, would face constitutional challenges in the courts.

The only constitutional alternatives for providing D.C. residents with congressional representation, according to opponents of the legislation, are statehood for the District, retrocession of the District to Maryland, or ratification of a constitutional amendment granting the District congressional representation.

President Obama, who was a cosponsor of the Senate legislation during the 110th Congress, is expected to sign the bill if it reaches his desk.

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Eric Holder becomes U.S. attorney general

U.S. Attorney General Eric H. Holder Jr., who was sworn in Feb. 3 as the first African-American to hold that post, told Justice Department employees that “we must restore the credibility of this department, which has been so badly shaken by allegations of improper political interference.”

The Senate overwhelmingly approved Holder’s nomination Feb. 2 by a 75-21 vote after he faced questions about his role as deputy attorney general in President Clinton’s granting of controversial pardons.

Holder has been a litigation partner at the law firm of Covington & Burling for the past eight years after serving as deputy attorney general during the Clinton administration. Prior to that, he was an associate judge of the D.C. Superior Court from 1988 to 1993 and the U.S. attorney for the District of Columbia from 1993 to 1997.

Holder also was on the staff of the Justice Department’s Public Integrity Section early in his career from 1976 to 1988.

During his confirmation hearings, Holder emphasized that law enforcement decisions and personnel actions must be untainted by partisanship. “Under my stewardship,” he said, “the Department of Justice will serve justice, not the fleeting interests of any political party.”

His nomination garnered widespread support from numerous law enforcement and civil rights organizations as well as current and former public officials from both political parties.

During debate on the nomination, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) emphasized that Holder expressed support for several issues, including enacting a federal reporters’ shield law, strengthening of the Violence Against Women Act, defending the Voting Rights Act, and revitalizing the Freedom of Information Act. He also noted that leadership must be in place at the Department of Justice to carry out the executive orders signed by President Obama to finally “put an end to some of the Bush administration’s most damaging national security policies.”

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President rescinds “Mexico City policy”

Calling the provisions “unnecessarily broad and unwarranted under current law,” President Obama moved quickly Jan 23 to rescind the “Mexico City policy,” which directed the U.S. Agency for International Development (USAID) to withhold funds from foreign nongovernmental agencies that provide abortion-related counseling and services, or lobby a foreign government to make abortion available, even if they do so with their own funds.

The policy, first initiated by President Reagan in 1984 following the Mexico City International Population Conference, was rescinded by President Clinton in 1993. President Bush reinstated the policy on his first day in office in 2001 and soon thereafter extended it to voluntary population planning assistance provided by the State Department.

President Obama said he was lifting the ban, which is also known as the “global gag rule,” because the policy has undermined efforts to promote safe and effective voluntary family planning in developing countries.

“For too long, international family planning has been used as a political wedge issue,” he said, indicating that his administration in the coming weeks will initiate a fresh conversation on family planning, working to find areas of common ground to best meet the needs of women and families at home and around the world.

The ABA has opposed the Mexico City policy since 2001, when the House of Delegates adopted policy opposing any federal law, regulation or policy that prohibits foreign non-governmental organizations that receive U.S. government assistance from using non-U.S. government funds to provide health or medical services, including counseling and referrals, that are legal in the country receiving the U.S. assistance or from engaging in advocacy or public education activities.

President Obama also indicated last month that he will work with Congress to restore U.S. financial support for the U.N. Population Fund (UNFPA).

“By resuming funding to UNFPA, the United States will be joining 180 other donor nations working collaboratively to reduce poverty, improve the health of women and children, prevent HIV/AIDS, and provide family planning assistance to women in 154 countries,” he said.

The ABA supports UNFPA funding as critical to fighting the HIV/AIDS crisis.

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COMPLETE WASHINGTON NEWS BRIEFS

DOMESTIC VIOLENCE: ABA President H. Thomas Wells Jr. recently urged the Obama administration to increase funding for and improve the Legal Assistance for Victims Grant Program (LAV) as a priority for the Office on Violence Against Women (OVW). The competitive program awards grants for funding and training attorneys to represent survivors of domestic violence, dating violence, sexual assault and stalking in a wide range of increasingly complex legal matters. In a letter to members of the presidential transition team, Wells highlighted the ABA Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Orders as an example of specific criteria that could be used in the training of LAV grantee attorneys to ensure that survivors consistently receive high-quality representation across the country. The letter also recommended ways that the office could increase meaningful access to the justice system for all victims by working collaboratively with government agencies and national organizations to ensure availability of language interpreters and LAV training that includes appropriate legal responses for victims with disabilities and those who are lesbian, gay, bisexual and/or transgendered. In a related memorandum to the vice president’s transition office, ABA Governmental Affairs Director Thomas M. Susman provided an overview of the legal needs of victims of domestic violence and recommended several steps, including establishment of a National Domestic Violence Volunteer Attorney Network, a White House Office on Violence Against Women, a Presidential Initiative on Ending Violence Against Women, and an Interagency Council on Violence Against Women. He noted that the funding required for these steps “pales in comparison to the potential benefits – to individuals, communities, and our nation – to be attained by strengthening our commitments in this area.”

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HEALTH CARE: ABA Governmental Affairs Director Thomas M. Susman conveyed the association’s health care policies to both the Obama administration and the House and Senate last month. In addition to numerous policies relating to increasing access to health care and long-term care, Susman discussed the following ABA positions: opposing federal preemption of medical liability laws of the state and territories; opposing a “health court” system that would take away the right to a jury trial for patients injured by medical malpractice; and supporting a rigorous system of internal review and an independent system of external review of benefit payment requests, adverse coverage determinations, and medical necessity determinations. Other policies highlighted in the memorandum included: support for amending the Employee Retirement Income Security Act to allow causes of action to be brought in state court under state liability laws by patients injured under employer-sponsored HMOs; and support for legislation to strengthen privacy of health records and protect individuals’ right to privacy of their health information for any source, including medical records, electronic data and genetic material. Susman also said that the association has established a new ABA Working Group on Health Care Access Proposals to review pending and future health care access proposals and identify areas for which additional ABA policy should be developed.

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PRISONER TELEPHONE SERVICES: The ABA wrote to the Federal Communications Commission (FCC) last month to support a proposal that sets forth the basis for fair and final resolution of issues related to prisoner telephone services. Telephone access is increasingly important in the operation of correctional facilities, in the lives of prisoners and their families, in the capacity or prisoners to confer with counsel, and in the ability of prisoners to maintain ties with their communities. In the past 20 years, however, practices have developed in the prison telephone industry that raise questions of propriety when correctional professionals enter into non-competitive, profit-sharing contracts with telephone providers that provide for extremely high-cost telephone service for prisoners, who are a vulnerable and impoverished segment of society. In a Jan. 15 letter to FCC Secretary Marlene H. Dortch, ABA Governmental Affairs Director Thomas M. Susman wrote that these “pernicious practices have an adverse impact on pretrial detainees and prisoners, impair the capacity of counsel to represent their incarcerate clients, and, for the families of prisoners, are extortionate.” The proposal, submitted to the FCC in October 2008 in response to a request for comments on the issue, calls for the FCC to establish a comprehensive fair rate for all intra-state and inter-state prisoner collect, prepaid, and debit telephone calls that covers legitimate costs, provides a reasonable rate of return to prison phone providers, and eliminates profit-sharing arrangements known as “commissions.” The proposal also would foreclose alternative means to unjustifiably inflate the cost of prisoner phone calls, and would defer to state public service commissions to address requested cost adjustments. During the 110th Congress, the ABA also supported legislation to amend the Federal Communications Act of 1934 to require the FCC to prescribe rules regulating inmate telephone service.

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