February 24, 2021 International Senior Lawyers Committee

Advancing the Profession and Rule of Law Internationally

Notes by Robert L. Brown

Watch the video replay of ABA's Policy Efforts in D.C. and Around the World

At the February 10 meeting of the ABA SLD International Senior Lawyers Committee, following opening welcome by Robert Lutz, co-chair of the committee, Tom Susman, Coordinator of the International Policy Coordinating Group and Strategic Advisor to the ABA Governmental Affairs Office, described how the American Bar Association advocates for the Rule of Law internationally.

Background

One of the core principles of the American Bar Association is its support of public policy concerning critical issues. For instance, recently, the ABA has issued statements and written letters in support of human rights defenders in Hong Kong and Saudi Arabia, treatment of minorities in China, independence of the judiciary in Guatemala, and treatment of lawyers in Mexico and Belarus.

When considering a new policy statement on international issues, the ABA funnels policy statement proposals through its International Policy Coordinating Group (IPCG).

The ABA Governmental Affairs Offices serves as the focal point for the Association's advocacy efforts before Congress, the Executive Branch, and other governmental entities on issues of importance to the legal profession.

Overview

Tom emphasized that the policies he will be discussing are not section communications, which are reviewed internally through the Blanket Authority procedure. They are policies advocated by the President of the ABA based on resolutions adopted by the House of Delegates and Board of Governors (BOG). They cover domestic (including tribes and territories) and international issues.

He noted the BOG sets priorities based on surveys of ABA members and identifies top issues each year. International rule of law has long been on the list. The ABA then advocates each year on the identified issues. Advocacy is an important part of ABA legacy.

Conflicts over Policies

Conflicts between ABA sections sometimes occur. If so, the conflicting views will go to the ABA President to resolve. One perennial issue that gets the President’s attention is the treatment of lawyers and judges in Turkey. ABA International Law Section has long advocated that the ABA President publicly condemn the Turkish government’s actions, but ABA Presidents have declined to do.

Another dispute concerned human rights in China. That situation required careful negotiation within ABA and by Bob Horowitz, who then coordinated the ABA’s international policy statements before his retirement. Tom succeeded Bob and has headed the Committee since Bob’s retirement.

Tom and Kristi Gaines, who is Senior Counsel handling international issues in the Governmental Affairs Office, emphasized that conflicts and delays in issuing policy statements are not common. Kristi referred to them as not a “super-frequent occurrence” and tend to concern the same events or situations.

Only ABA President has Veto Power

Tom emphasized that the Rule of Law Initiative (ROLI) has no veto power over issuance of policy statements. Only the President has power to approve or disapprove pubic statements on ABA policy and may listen or not to entity recommendations.

Process Getting ABA Policy Statement

As to the actual process for obtaining an ABA policy statement, Tom explained it usually starts with a committee within an ABA Section, Division or Forum or other entity proposing a statement be issued by the ABA President. The draft will then be circulated to the IPCG, which includes representatives from the major ABA entities involved in international rule of law issues, including ABA International, ROLI, and Center for Human Rights (CHR), U.N. Representatives, and the Sections of Civil Rights and Social Justice and of Criminal Law. The ABA Media Relations office reviews the draft from an editorial standpoint. Finally, Media Relations or GAO will release the statement on behalf of the ABA President.

He noted that the policy recommendation made by an ABA member or staff must include a standard disclaimer that it has not been approved by ABA as a formal policy. The disclaimer must be prominently displayed – not just a footnote at the end.

Tom’s Approach to Policy Statements

In leading the IPCG, Tom’s personal philosophy is to let 1000 flowers bloom. To him, this means ABA as an institution should be as outspoken as much as possible. Similarly, as individuals, we must also speak up, but we must be careful to note that in such cases we do so as individuals and not for ABA.

Effectiveness of ABA Policy Statements

When asked about how effective ABA statements have been, he explained it is hard to measure impact. While he and others are regularly told the statements are influential, it is often difficult to track statements to specific bills being adopted. He does think that ABA advocacy on Legal Services Corporation (LSC) funding, for instance, has been critical. But, while ABA feels strongly about immigration, Congress has not done much. On the other hand, on an international level, according to Mike Tigar, a former ABA President, a woman human rights lawyer in Saudi Arabia has been released as a result of an ABA policy statement. Tom said the same result occurred regarding the treatment of judges in Poland, who were arrested, but released after an ABA statement. The story below from the Washington Post below cites the work of CHR in the release of Indian activists.

Differences in Style of Statements

Tom contrasted the style used for domestic and international statements. Domestic ones tend to be in the AP format designed for consumers and publications, meaning short statements to be read in a few minutes. International statements, on the other hand, are for judges, advocates, and the government of the country in question. As a result, they tend to be longer and more detailed.

ABA Goals vs. Policy Statements

When asked about ABA goals and policies, Tom noted that the words and their meanings are different. His office takes the position that "Goals" do not equal "policy" when it comes to grounding public advocacy. From time to time an entity will want the President to make a statement based on a Goal. He explained that if there's no policy adopted by the House of Delegates (HOD) or BOG on the issue, then a statement cannot be issued.

For instance, two years ago, some ABA leaders wanted the ABA President to condemn genocide in a particular country. No policy had been adopted by the ABA regarding actions in that country. He pointed out that the UN has a list of 20 some odd countries who are alleged to have committed genocide. The ABA cannot issue a statement on any of them unless BOG or HOD has adopted a policy. ABA taking a position does not depend on whether an ABA member objects. It depends on the ABA as an institution formally taking a position.

Another example he cited was that for years ABA was asked to oppose arms sales to Saudi Arabia because of rule of law and human rights violations. This was a highly visible, politically sensitive issue then. ABA demurred and did not oppose sales since no ABA policy statement had been adopted. Later, after HOD adopted a policy statement, the ABA spoke out. He used these examples to emphasize that ABA members and committees must prepare statements, and if there is no existing policy, they must get the HOD or BOG to adopt one. It is not enough to say there is a violation.

When asked how members can determine if they should draft a statement or work on getting HOD or BOG to adopt a policy, Tom replied that the easiest approach is to simply call and ask him or Kristi.

Effect of Timing

At times, delays may make it more possible for ABA to issue a policy statement. For instance, after ROLI left China, policy statements regarding China’s treatment of human rights defenders and ethnic minorities became possible.

Alternatives to ABA Statements

He pointed out that impact behind scenes is possible and frequent. ABA President and his committee look for ways to work out a solution. Reaching out to Transparency International is often an effective approach. The ABA may also go to Congress to press a point or ask a question. The ABA, for instance, knows who is interested in most issues. While a letter to the US Secretary of State (SoS) is a public document requiring higher levels of ABA approval, visits to SoS country desks and asking their advice is a much easier approach. Aaron Schildhaus, Co-Chair of the SLD International Senior Lawyers Committee, pointed out that ABA entities and members can reach out on such issues through local law firms, as well as State and Commerce Department officials who are members of various ABA Councils.

ABA Day on the Hill

Tom strongly urged ABA members to participate in ABA Day on the Hill. Coordinated by state chairs, ABA members each April contact Members of Congress to advocate on a limited number of interests common to all ABA members. In 2021, the online visits during April will focus on legal services.

Washington Post article on ABA Role in aiding human rights defenders abroad. 

They were Accused of Plotting to Overthrow the Modi Government. The Evidence was Planted, a New Report Says.

Speaker

Tom Susman is the Coordinator of the International Policy Coordinating Group. He is also Strategic Advisor to the ABA Governmental Affairs Office. From 2008 to 2018 he was its Director. Prior to joining the ABA in 2008, he was a partner in the Washington Office of Ropes & Gray LLP for 27 years, where his practice included counseling, litigation and lobbying. He served on the Senate Judiciary Committee from 1969-1981 as general counsel of the Committee and two subcommittees.

Tom is also a nationally recognized expert on lobbying ethics, having written and taught extensively on the topic. He co-edits the American Bar Association’s Lobbying Manual; served as an adjunct professor on lobbying at The American University’s Washington College of Law; and chairs the Ethics Committee of the National Institute for Lobbying and Ethics. He has also been active during his professional career in advancing public access to government information. He is President and Founder of the D.C. Open Government Coalition, chair of the Steering Committee of OpenTheGovernment, on the board of the National Coalition for Freedom of Information, and a member of the National Archives FOIA Advisory Committee.

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