Published January 13, 2015
In defiance of a Bush administration request to stay out of the issue, the American Bar Association Monday voted to recommend that foreign terrorists being tried before military tribunals be afforded the same rights as Americans.
Military tribunals proposed by the administration to try foreign nationals accused of terrorism should offer the same rights guaranteed Americans – namely that defendants are presumed innocent and must be proved guilty beyond a reasonable doubt. The nation's largest and most influential lawyers' group also said a death sentence in the tribunals should require a unanimous verdict.
"Our system does not work, democracy does not live, unless we are willing to give the same rights to the worst of us as to the best of us," Miami defense lawyer Neal Sonnett said to applause from the ABA's policy-making body.
The vote was 286-147 to attach those and other conditions to the use of tribunals. The vote means the ABA, though not contesting President Bush's power to use tribunals, insists the special terror courts be used only in limited circumstances, and under established legal and constitutional rules.
Opponents of the measure said the ABA should not weigh in with "inflexible" conditions that could tie the president's hands in a changing war on terror.
Solicitor General Theodore Olson, whose wife, Barbara, died aboard the jetliner that hit the Pentagon on Sept. 11, told ABA leaders Monday that the group should refrain from passing the resolution "unless we are absolutely sure in our minds that the contents of this resolution will not produce unintended consequences to our country and to our president as commander in chief."
"We should not put it forth as the definitive position of America's principled voice of the legal profession," Olson said.
The Bush administration lobbied the ABA to remain silent on the subject at the organization's first meeting since the Sept. 11 terrorist attacks.
Monday's was not the first run-in between the administration and the ABA. Within months of taking office, the Bush administration fired the ABA from its prestigious role of vetting candidates for federal judgeships because of what it saw as the organization's partisanship in favor of Democratic judges.
Bush's November announcement that the United States might use tribunals did not detail how the courts would operate, or who would be tried there. The White House has said no American citizens would be prosecuted before tribunals.
Tribunals have not been used in the United States since World War II. In the past, they have provided fewer legal and constitutional guarantees for defendants, and operated with far greater secrecy than ordinary civilian or military courts.
Some lawyers oppose any use of tribunals, contending they are fundamentally unfair to defendants and represent an end run around both ordinary civilian courts and the parallel system of military courts-martial.
ABA members have been divided for weeks over whether to support or oppose the idea of tribunals, or whether to take no position at all. A request to postpone a vote failed narrowly on Monday. The ABA also rejected amendments that would have weakened the statement.
The vote puts the full 408,000-lawyer organization behind the thrust of preliminary recommendations released last month and sent to the Pentagon for review. The ABA has no enforcement power, and its statements are only recommendations.
The Associated Press contributed to this report.