Raising The Rule Of Law Banner, For America And The World

Sunday, October 1, 2006 - 01:00
Michael S. Greco

Editor: Reflecting on your term of office as President of the ABA, would you share with our readers the high points of this past year?

Greco: There were many high points to my year as ABA president, more than I can do justice to in a brief interview, but I will discuss several.

The over-arching theme for my year in office was renaissance - a rebirth and reaffirmation of the legal profession's core values and America's constitutional principles.

My priorities involved protecting the rights and freedoms of American citizens, safeguarding the independence of the judiciary and other institutions of our democracy, balancing national security and freedom, re-invigorating the longstanding public service and pro bono commitment of lawyers, addressing the legal needs of lower-income citizens, advancement of women, people of color and persons with disabilities in the legal profession, and improvements to the Association and the legal profession. An ambitious agenda? Yes. But a great deal was accomplished. To implement my initiatives I created two ABA commissions, five ABA task forces and several special committees.

I traveled on more than 300 of my 365 days in office to 45 states, Washington, DC and Puerto Rico, and more than 25 nations, delivered more than 275 speeches, testified before Congressional committees, met with hundreds of government leaders abroad and in the U.S., and addressed and met with lawyers and judges, bar associations and civic groups and thousands of people throughout the world.

In commenting on my initiatives, I begin with my concerted effort this past year to unify the legal profession worldwide to advance and protect the rule of law.

In November 2005, I attended a conference in Paris of some one hundred bar presidents from all over the world and addressed a subject that I had discussed earlier at international bar leader conferences in Morocco, Prague and London: the responsibility of our profession to ensure justice and protect the rule of law in all nations. I noted that I am an American lawyer but consider myself a colleague of every lawyer in the world, and that they are my colleagues; that harm to the legal profession in one nation is harm to the profession in all nations; and that harm to the people of one nation because of the failure of the rule of law is harm to all people.

During the Paris meeting the bar leaders present agreed to adopt, and I authored, a Statement of Core Principles to which the legal profession worldwide, in the interest of the public, is committed. It was adopted unanimously that day and since then by dozens of bars across the world. The ABA House of Delegates adopted it unanimously in February at our Midyear Meeting in Chicago. The significance of this development is that the legal profession worldwide increasingly is viewing itself as one unified profession, not as isolated

islands, with a shared commitment to help each other combat violations of the rule of law and denial of freedoms anywhere on earth.

In addition to my efforts to unify the profession globally, in connection with the ABA's important and growing international rule of law efforts that are now active in more than 40 countries, including emerging democracies in former Soviet republics, during the past year I negotiated collaboration agreements between the ABA and the national bars of China, Russia and Japan in order to provide for mutually beneficial exchanges of lawyers, legal knowledge and expertise, and to advance justice and the rule of law.

Editor: You mentioned the initiatives that you pursued during your term. How have these fared?

Greco: As I mentioned, my initiatives focused on reaffirming our profession's core values and protecting America's constitutional principles and freedoms. I wanted to re-invigorate the idealism of lawyers, to protect the constitutional rights of Americans and the doctrine of separation of powers, protect the independence of the judiciary and legal profession from those in and out of government who seek to diminish or marginalize the roles of lawyers and judges, and to address the legal needs of America's poor.

The ABA Commission on the Renaissance of Idealism in the Legal Profession was my effort to revitalize the public service and pro bono commitment of the legal profession, to help more Americans with their legal needs, and provide more fulfillment to lawyers that comes with doing good and not just well. The Commission, under the splendid leadership of honorary co-chairs Supreme Court Justice Ruth Bader Ginsburg and Theodore C. Sorensen, and chair Mark Agrast of Washington, DC, produced several important new ABA policies and products - including an on-line Best Practices Guide and an inspirational DVD video featuring Dennis Archer, the first African American President of the ABA - that will encourage increased pro bono and public service work by lawyers in law firms, in-house law departments, law schools and government offices. Both are accessible on the ABA's website, www.abanet.org.

The ABA Commission on Civic Education and the Separation of Powers addressed the deplorable fact - documented by an ABA-commissioned Harris Interactive survey conducted when I took office - that nearly half of Americans cannot identify the three branches of government, the meaning of the separation of powers doctrine or checks and balances, or a judge's core responsibilities. Americans who do not know their constitutional rights are ill-equipped to protect those rights and the institutions of their democracy, such as an independent judiciary, and they are easy prey for those who would abuse those rights.

The Commission, led by the honorary co-chairs, Supreme Court Justice Sandra Day O'Connor and former New Jersey Senator Bill Bradley, and chair Robert Rawson, a distinguished business litigator and former Chairman of the Princeton University Board of Trustees, proposed new policies adopted by the ABA that will help improve civics education in U.S. schools.

The ABA Task Force on Access to Civil Justice , which was chaired by Justice Howard Dana of the Maine Supreme Judicial Court, addressed an idea whose time, I believe, has come in America: to provide desperately needed legal services to millions of poor Americans, 70-80% of whose legal needs annually go unmet, through the creation and recognition of a defined right to counsel, paid by the state, for certain serious legal problems that threaten basic human needs such as family, shelter, and health.

At the ABA's Annual Meeting in Honolulu in August, the 550-member House of Delegates, in an historic vote for the Association, the legal profession and society, voted unanimously to adopt a policy supporting creation of a defined right to civil counsel for America's poor. The policy will aid advocates for equal justice in all the states when they ask courts, legislatures and others to recognize such a right for our vulnerable fellow citizens. I believe that this new ABA policy will help define the legal profession and our society in this century.

Editor: And the other initiatives you developed over the past year?

Greco: I also appointed two bi-partisan task forces - the ABA Task Force on Domestic Surveillance in the Fight against Terrorism , and the ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine - both comprised of distinguished constitutional scholars and former government leaders and judges, to protect Americans' constitutional rights, the doctrines of separation of powers and checks and balances, and America's democratic form of government.

The Task Force on Domestic Surveillance carefully considered the U.S. government's troubling program of warrantless spying on American citizens and issued a unanimous report and recommendations urging the President to respect the roles of Congress and the Judiciary, to comply with the Constitution and existing federal laws, and urged immediate corrective action by Congress and the Courts. The ABA House of Delegates at its February 2006 Midyear Meeting in Chicago adopted the Task Force's recommendations by a near-unanimous vote.

The ABA policy states essentially that the President must consult with Congress before adopting a program that invades the privacy rights of American citizens protected by the Fourth Amendment, and urges Congress to hold hearings to investigate what the surveillance program involves. Congress in discharging its constitutional powers and obligation to the American people should insist on full information about the program before enacting any amendments to the Foreign Intelligence Surveillance Act (FISA).

I testified before the House Permanent Select Intelligence Committee on proposed amendments to FISA, which Congress enacted in 1978 because of earlier governmental abuses of citizens' privacy rights. FISA includes fundamentally important protections: it allows the government to do surveillance under certain circumstances, but by requiring a particularized warrant issued on probable cause, it also preserves Fourth Amendment protection against unreasonable searches and seizures. The ABA's position is that any amendments to FISA must preserve those fundamental protections. Their elimination from FISA would effectively eliminate the Fourth Amendment.

The Task Force on Presidential Signing Statements, comprised of conservatives and liberals, constitutional scholars and former government officials, thoroughly considered the misuse by a president of signing statements that indicate an intention not to enforce new laws enacted by Congress. The Task Force's unanimous report and recommendations concluded that such misuse by any President of signing statements violates the Constitution, encroaches unlawfully on the powers of Congress, and poses a direct and grave threat to the separation of powers doctrine. The Task Force urged immediate legislative action by Congress and judicial review by the Supreme Court of the United States to resolve the serious constitutional issues presented.

At the August 2006 Annual Meeting the ABA House of Delegates adopted the Task Force's recommendations by an overwhelming vote. Congress now must discharge its constitutional responsibility and protect not only its powers in our democratic government, but also prevent dangerous erosion of the separation of powers doctrine.

I appointed the ABA Task Force on Hurricane Katrina as that hurricane was still raging in order that the legal profession could provide free legal services to victims of Katrina and other hurricanes that devastated the Gulf States in the fall of 2005. The Task Force coordinated an unprecedented effort by thousands of lawyers to provide desperately needed legal services to tens of thousands of hurricane victims, and the work continues as the legal needs of victims continue to surface.

The response of the legal profession to this tragedy has been magnificent, and I am proud of our many colleagues across the U.S. who have provided and will continue to provide desperately needed legal services.

The ABA Task Force on the Attorney-Client Privilege for two years now has led the Association's efforts vigorously to oppose the U.S. Department of Justice's assault on American citizens' attorney-client privilege, and to protect the fundamental right of Americans to representation by counsel without federal government interference or coercion, as guaranteed by the Fifth and Sixth Amendments to the Constitution.

As a result of the efforts of a coalition of organizations led by the ABA that includes the U.S. Chamber of Commerce, the American Civil Liberties Union, the Association of Corporate Counsel and other concerned groups, the U.S. Sentencing Commission in April unanimously voted to remove from the Sentencing Guidelines the prosecutorial incentive to coerce waiver of the privilege and work product doctrine.

Despite strong opposition from almost every quarter in the legal and business communities, and others, the Department of Justice is still holding firm to what is a misguided policy that actually hinders rather than helps the fight against corporate misconduct. In early September, a group of ten former Justice Department officials that includes three former attorneys general, one of whom is my law firm colleague Dick Thornburg, sent a letter strongly urging that the Department abandon the coerced waiver policy.

At the ABA's urging, the matter is now being addressed by Congress. During the annual ABA Day in Washington in May, Senator Arlen Specter, Chairman of the Senate Judiciary Committee, agreed to my request that the Committee hold hearings on this important subject. The first day of hearings occurred on September 12, with the ABA providing testimony. A House committee has also held a hearing.

This issue, as do the issues addressed by the ABA Commissions and Task Forces, demonstrates the important role that the American Bar Association plays in protecting the rights and freedoms of the American people and the foundations of our democracy.

Editor: This past year has been an extraordinary one, for you and for the ABA.

Greco: Yes, it has. If the hundreds of letters, emails and telephone calls I have received from American citizens, lawyers and non-lawyers, judges and legislators, and the hundreds of editorials, op-ed articles and letters to the editor appearing in newspapers throughout America, as well as commentary on the Internet, are a reliable indication, the American people appreciate the ABA's efforts, and those of America's lawyers, on grave legal issues that speak to the hopes and fears, and the desires of Americans to be both secure and free in this era of terrorism.

To anyone, whether conservative or liberal, who may question the ABA for taking an "activist" role on these issues, I respond that the ABA through its 411,000 members exists to defend the Constitution and the rights of the American people. Every lawyer takes a solemn oath to do just that. So does the President, and every federal and state government official in America - to uphold the Constitution and the rights it guarantees to all Americans. Conservatives and liberals both want to defend and nourish what is good, and decent, and cherished in America. Freedom and justice, and preservation of our republic are not partisan issues and should never be.

Adlai Stevenson once said that "freedom rings wherever opinions clash." That is a succinct statement of what a healthy democracy must encourage and protect - open discussion and exchange of views without fear of reprisal or personal attacks on one's patriotism or integrity. The fundamental principle of freedom of speech and assembly which the founders wrote into the very first provision of the Bill of Rights has protected us and has defined us to the world.

In my farewell address to the ABA House of Delegates in Hawaii I quoted from the speech that President John F. Kennedy was to have delivered in Dallas on November 22, 1963: "We in this country, in this generation, are - by destiny rather than choice - the watchmen on the walls of freedom." Today the lawyers of America, by choice and necessity, are the guardians at the walls of freedom.

Issues such as torture of detainees, denial of due process, secret surveillance of American citizens, and disrespect for the doctrine of separation of powers and checks and balances, and more, have been addressed in ABA policies in the fight against terrorism. These are not partisan issues. They affect all Americans, define us, and threaten harm to our freedoms and the fabric of our republic.

It is my hope that - with government leaders setting the example - we will be able to move beyond the ill will and hostility that now characterizes so much of our public discourse. Americans today must do what the colonial patriots did before us - protect and preserve our freedoms with every ounce of might and against every threat - whether from without or within our country.

The American Bar Association will continue to do its part.