44th Street March 2005 Vol. 20, No. 3 TES NThe Association of the Bar of the City of New York The Association of the Bar of the City of New York Program Highlights Human Rights and Due Process: INSIDE 3/1 Gonzales Nomination Focuses Spotlight Elderlaw Project Pro Bono by Bettina B. Plevan, President Training . .7 he recent confirmation ment in response to suits brought on Judge Gonzales avoided confronting 3/24 hearings on Alberto behalf of detainees seeking due the issues raised, except to say he United Nations: Proposals Gonzales’ nomination to process. We addressed these issues did not support torture (a stance for the 21st Century . .9 T serve as attorney general in amicus briefs filed in three cases articulated by President Bush). The provided an opportune time to bring involving challenges by persons legal positions, except for some in CLE . .12 into focus the government’s purport- detained as enemy combatants the now infamous – and later – Hedge Funds - ed legal justification for a series of (Padilla v. Rumsfeld, Rasul v. Bush, retracted – August 2002 Justice Current Developments 3/3 policies developed in the post-9/11 and Hamdan v. Rumsfeld). Department memo, which attempted environment. A series of legal After his nomination was to limit the liability of U.S. person- – The IRS’s New “Tax Exempt memoranda, originally kept secret announced, we wrote directly to nel for committing torture, have not Compensation Enforcement Project” 3/7 until they were leaked, and Judge Gonzales setting forth our been retracted. Rather, they remain eventually made public by the questions and concerns regarding in effect as support for the adminis- – Check 21: What You Need Administration, supported the these memoranda, the legal argu- tration’s approach to detainees and To Know 3/21 policies. While most deal with how ments they espouse and his role in national security policy. There has the government should treat developing the administration’s been widespread criticism that these Table of Contents detainees in the “war on terrorism,” legal positions in these areas. We policies not only lack clarity regard- some arguments go to the basic lim- then helped brief Senate Judiciary ing how detainees should be treated, NEW COMMITTEE REPORTS . .3 its of presidential power. Committee staff and members on but also have brought worldwide This Association has been active the legal aspects of these issues for shame upon us because of the lack PLAN YOUR RETIREMENT . .5 in challenging the legal arguments the confirmation hearings. While of decency in that treatment. advanced in these memoranda and many of the questions we framed Continued on pg 2. ASSOCIATION SERVICES . .6 in court briefs filed by the govern- were asked during the hearings, CALENDAR OF EVENTS . .7-10 Post-Retirement Pursuits Open Up New Worlds EVENT SPOTLIGHT . .9 – A Look Ahead to the “Lawyers’ retirement pursuits run the full spectrum,” said Ed Labaton, chair of the ABCNY Senior Lawyers New Congress 3/7 Committee. The Association has many challenging and rewarding programs for senior lawyers who are not interested in full-time retirement. Several enthusiastic “retirees” recently shared their experiences with 44th CITYBAR CENTER FOR CLE . .11-18 Street Notes. COMMITMENT TO DIVERSITY . .19 countries, such as Tibet, Colombia, supply. Not content with this – Designing an Assessment Plan Dynamics of a Bangladesh, the Congo, Liberia, responsibility, he took advantage of for Your Firm Successful Retirement Albania, Uzbekistan, Kyrgyzstan Con Edison’s employee education Nowadays, with all the legal and Georgia. Gueron, whose tireless program and put himself through THE CITY BAR FUND . .20 obstacles new immigrants must face work frequently takes him to INS Fordham Law School at night, – Unbundled Legal Services in the wake of 9/11, it wouldn’t hurt hearings and immigration court, is where he took his law degree in to have a lawyer with the brains of a currently working on two cases. 1993 at the respectable age of 57. 2005 Cardozo Lecture nuclear engineer. A native Parisian, Henri Gueron After working 20 years as a Enter Dr. Henri M. Gueron. immigrated to America some 40 nuclear engineer for Con Ed, “Academic Freedom” Gueron is a recent retiree who vol- years ago and graduated from M.I.T. Gueron branched out to become a Wed. March 23, 7 pm unteers three days a week at the with a doctorate in nuclear engineer- senior attorney at Con Edison, spe- City Bar Fund’s Refugee Assistance ing. Con Edison hired him in 1974, cializing in intellectual property law, To be delivered by Program, where he works exclusive- not as a lawyer, of course, but as an energy law, and contracts until his Lee C. Bollinger, ly on asylum cases and has success- engineer and utility executive. He retirement in 2001. President, Columbia University. fully represented 10 applicants and eventually, became the utility’s their families from many far-flung director of nuclear fuel and coal See page 9 for details. Continued on pg 4. Human Rights and Due Process Continued from pg.1 The essence of the Bush supporting terrorism. These work for balance of power specific intent was to obtain Administration’s argument regard- detainees essentially exist in a “no established by the Supreme Court. information.] ing detainees is that: man’s land” of law, unprotected The president’s assertion of such While the U.S. must be vigilant, by either domestic or international Article 2 power is of particular we do not believe the 9/11 attacks • The Geneva Conventions are law. Therefore, the argument import in the current situation, as justify the abandonment of basic “obsolete” and “quaint” in the goes, they have no rights. They the war on terrorism has no principles of human rights and due words of Mr. Gonzales. The have no right to counsel, to be limited battlefield and would process. Detainees should have the administration’s interpretation of brought up on charges, to access seem to have no end. protection they are entitled to under the Conventions departs from the courts or to escape indefinite U.S. and international law, includ- U.S. policy of the last half century Judge Gonzales has not commitment. Indeed, the non- ing, as eight of the nine Supreme and from the common understand- renounced any of these policies. In citizen detainees may be tried by Court Justices said in Hamdi v. ing of the international community. contrast, this Association argued, in military commissions under the our brief in Hamdan, that at least Rumsfeld, the right of access to • The U.S. is no longer limited by sole control of the Executive minimal protections of the Geneva judicial process to challenge their its own long-standing policy to Branch and sentenced to death Conventions do indeed apply to all detention. The continued resistance abide by the full range of prohibi- without recourse to the Judicial persons detained during an armed of the government to this decision is tions against torture and cruel, Branch (if they are acquitted by conflict, irrespective of POW status. one policy the attorney general has inhuman and degrading treatment the commissions, they may still Common Article 3 of the the power to change. set forth in the Geneva be detained indefinitely). Any Conventions has attained the status The new attorney general, as the Conventions and the Convention “privileges,” such as a status of customary international law, and nation’s chief legal officer, should Against Torture and Other Cruel, hearing or meeting with counsel, provides basic rights to all persons be the prime exponent of these basic Inhuman or Degrading Treatment. extended to the detainees, the so detained, including freedom from principles. We must look to him • U.S. personnel engaging in torture argument goes, are provided torture and the right to a hearing to defend our liberties. We hope may be able to assert a defense of solely at the President’s discretion. with basic legal protections before Judge Gonzales will rise to this necessity – that the torture was • The final peg of the argument is being sentenced. The Convention responsibility. “necessary” to prevent future that U.S. laws and treaties ratified Against Torture also applies and not terrorist attacks. by the U.S. would be unconstitu- only covers torture but other cruel, • The U.S. may detain any person tional if applied to limit inhuman or degrading treatment identified by the president as an presidential authority in treating despite contrary arguments adhered “enemy combatant.” Anyone, detainees and in undertaking to by the administration for months. military operations more [In a December 30th memo, the including American citizens, can 44th Street be so labeled and detained, generally. As we wrote to Judge administration retreated from two including, as the Justice Gonzales, “{t}his novel view runs particularly indefensible legal argu- Department admitted in a recent counter to well-settled interpreta- ments it had made: that treatment N TES oral argument, a “little old lady” tions based on constitutional can only constitute torture if it caus- JAYNE BIGELSENEDITOR who gives money to a charitable history, structure, and text, not es pain equivalent to losing an • organization she believes helps • least of which are grants of organ or of similar severity, and that MATT KOVARY ASSOCIATE EDITOR orphans without realizing the author ity to Congress under someone committing torture can be government has identified it as Article I,” and ignores the frame exonerated as long as his or her MARK SCHWARTZ ART DIRECTION/LAYOUT Nominees for Association Offices & Committees ARLENE MORDJIKIANPRODUCTION ASSISTANT The following candidates have been nominated for the Association's various offices and committees. Those elected SHARON MACNAIR ADVERTISING will be announced at the Annual Meeting of the Association on May 17, 2005.