Michael S. Greco
President, American Bar Association
Remarks to the Council of the International Bar Association
Prague, Czech Republic
September 29, 2005
Thank you, Mr. President [Francis Neate], for accommodating my schedule and
giving me this opportunity to address the distinguished members of the International Bar
Association (IBA) Council. My purpose in addressing the Council is to convey the
position of the American Bar Association regarding President Neate s Rule of Law
Resolution, which the Council will consider during this afternoon s business session.
I believe it is very important that the IBA bring this resolution for consideration by
this Council of international bars, of which the American Bar Association is a member,
because the resolution addresses issues of great import to all nations. In these remarks
I will briefly explain the several rule of law policy positions that the ABA has adopted
since the brutal terrorist attacks of September 11, 2001, policies that are congruent with
and in several areas exceed the breadth of the IBA Resolution before you, and discuss
the reasons why the ABA today will abstain from voting on the Resolution.
Since September 2001 the ABA has adopted eight policy positions that address
the manner in which the U.S. Government has dealt with terrorism-related and civil
liberties issues. The ABA s first policy resolution, adopted by the ABA s 550-member
House of Delegates in February 2002 at its first meeting after 9/11/01, expressed
unanimous support for the U.S. Government s efforts to secure our country and our
citizens against further terrorist attacks.
While the ABA fully supports our government and its efforts to achieve national
security, the ABA is independent from the government, and we speak when we believe
that the government s actions place our freedoms at risk. The policy resolutions adopted
by the ABA House have called upon the U.S. Government to ensure that in securing the
nation we do so without voluntarily sacrificing the very freedoms for which our soldiers
are giving their lives on the battlefield. To do otherwise would help the terrorists
achieve their ultimate goal of destroying the rule of law. The policy resolutions adopted
by the ABA have sought to protect due process and fairness, values that have defined
America since the beginning of our republic, and have been critical of the way in which
the government has dealt with a number of issues arising from the war on terror.
The ABA policies fall into three basic areas:
The treatment, interrogation and prosecution of detained persons;
Governmental intrusion on the rights of those present in the United
States; and
The use of immigration laws to detain and remove non-citizens
from the United States.
For example:
In February 2003, the ABA House adopted a policy that addresses the manner in
which the U.S. Government treats those persons designated as enemy combatants,
urging (1) that U.S. citizens and residents who are detained within the U.S. based on
their designation as enemy combatants be afforded the opportunity for meaningful
judicial review of their status, (2) that they not be denied access to counsel in
connection with the opportunity of such review, and (3) that Congress, in cooperation
with the Executive Branch, should establish clear standards and procedures governing
the detention and treatment of enemy combatants.
On June 28, 2004, the Supreme Court of the United States issued three
terrorism-related decisions, two of which validated the ABA policy that I have just
described. In Hamdi v. Rumsfeld, 542 U.S. 507, and Rasul, et al., v. Bush, et al., 542
U.S. 466, the Supreme Court held that the executive branch alone does not have the
authority to impose open-ended detentions on citizens and non-citizens deemed enemy
combatants. In the Hamdi case, the Court found that U.S. citizens and Guantanamo
Bay prisoners held by the U.S. military as enemy combatants must be given a
meaningful opportunity to contest the factual basis for that detention before a neutral
decision-maker.
In February 2002, following receipt of a comprehensive report from the ABA Task
Force on Terrorism and the Law, of which I was a member, the ABA House of
Delegates adopted a policy urging that the U.S. government not use military
commissions against U.S. citizens, lawful resident aliens or others lawfully present in
the U.S., but rather utilize existing U.S. federal courts. If military commissions are used
for others, the ABA urges that fair trials and appeals be afforded in accordance with the
International Covenant on Civil and Political Rights and the due process safeguards in
the Code of Military Justice.
In August 2004, the ABA adopted a policy condemning the use of torture and
cruel, inhumane or degrading treatment of persons within U.S. Government custody
(including its contractors), and urging full compliance by the U.S. with the Constitution
and laws of the U.S. and international treaties to which the U.S. is a party.
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The ABA also adopted policy condemning the shocking treatment of prisoners in
Iraq, calling for the appointment of an independent and bi-partisan commission to
investigate conduct by U.S. military personnel and contractors that shamed all
Americans to determine who is to blame and who should be disciplined and to
ensure that there will never be a re-occurrence of such treatment of human beings by
the U.S. military.
In February 2002, the ABA adopted a policy opposing incommunicado detention
of individuals by the U.S. Government and urging protection of all rights of detainees by
disclosing the names and locations of detainees and the charges against them,
providing them access to family members and counsel, and affording them specific due
process protections.
Since September 2001, the ABA has adopted other similar policies relating to
and critical of the U.S. Government s conduct of the war on terror. These policies are
but recent examples of the ABA s long history of forceful and continuous efforts to
protect and advance the rule of law internationally and in our own country. Simply put,
the ABA believes that a government that demands that other nations adhere to the rule
of law must first itself demonstrate respect for and adherence to the rule of law.
The IBA Resolution before you today concerns some of the very issues that the
ABA has already addressed in the policies I have just described. But before I, as
president, can commit the ABA s support for this policy resolution, it must be presented
to and debated by the ABA House of Delegates, consistent with our long-standing
procedures for adopting policies. The IBA Resolution that you are today considering
has not yet been submitted to the ABA House of Delegates for action. I have therefore
invited President Neate to do so, in order that the ABA may take a position. And it is for
this reason that the ABA will abstain from voting on the Resolution today.
I conclude with these thoughts.
In my inaugural remarks as president to the ABA House of Delegates last month
I noted that the lawyers who have been responsible for monumental change in America
during the past 230 years did not assume that someone else would bear the burden,
that someone else would advance civil rights, that someone else would uphold the rule
law, or that someone else would defend our freedoms. Instead, those lawyers knew
that what they did not value would not be valued, that what they did not change would
not be changed; and that what they did not do would remain undone.
The lawyers of the world must now answer the call.
The legal profession today throughout the world has an important, and among all
professions perhaps the most important, role in advancing and protecting the rule of law
and defending freedom. I believe that the bar associations of the world must
communicate and collaborate with each other in this effort. We must never forget that
we are one profession globally, that there are those throughout the world who are
attacking the independence of our profession in an effort to diminish or marginalize our
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role in protecting the rule of law, and that you and I must help each other in our efforts
to protect the independence of the legal profession throughout the world.
Nearly 400 years ago the English poet John Donne wrote these words:
No man is an island, entire of itself; every man is a piece of the
continent, a part of the main . . . . Any man s death diminishes me,
because I am involved in mankind; and therefore never ask for whom
the bell tolls; it tolls for thee.
I am an American lawyer but I am your colleague, and you are my colleagues.
The legal professions of the world are not islands; they are all part of the main. We are
of one profession. Any attack on the independence of the legal profession in your
country is an attack on the independence of the legal profession in my country. Any
attack on freedoms in my country is an attack on freedoms in your country. And any
harm to the people of your country because of the failure of the rule of law is harm to
the people of my country, and to humankind.
If we stand united as a profession throughout the world, we will withstand those
attacks. Divided we may fall. The bell will toll for the legal profession if we do not
succeed. We must do all in our power to protect the independence of our profession
and the rule of law. And we must never give in -- never, never, never.
Thank you for your kind attention.
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