Paul Rogerson speaks to Tommy Wells, president of the 400,000-strong American Bar Association, about Wall Street, the White House – and Guantanamo.
PR: Perhaps we should start with the only story in town for corporate America – the crisis on Wall Street. Is that something which you are addressing in respect of its impact on your members?
Wells: Absolutely. We’re in the process of putting together a presidential task force on financial services regulation. We have a board of governors meeting later this month and I’ve already put in a request that they authorise its creation.
We’re trying to get some of the best people in the ABA to join, former SEC [Securities and Exchange Commission] commissioners, people who’ve had a high level of experience in government and also in financial services.
We really need to be on the watch now that the [$700bn bail-out] bill has passed. The real nitty-gritty will come when they start publishing the regulations. And we know from the fallout that occurred after Enron, with the passage of the Sarbanes-Oxley corporate governance legislation in 2002, there were a number of what we viewed as intrusions into regulation of lawyers.
One thing I am very interested in is making sure we maintain the independence of the profession, both from a self-regulation standpoint and also in respect of attorney-client privilege. And we know that under Sarbanes-Oxley, there were regulations that could have turned lawyers into whistleblowers, obliging them to report on their own clients, which would have been a very big intrusion on privilege.
PR: But those fears were not realised with Sarbanes-Oxley…
Wells: Through a coalition of groups, including the ABA, we were able to win the argument that the regulations proposed were not in the best interests of either the profession or the government. We think now that there is a distinct possibility there could be other types of regulations coming through like that.
We have another task force, our so-called ‘Gatekeeper’ group, which was created to examine US government and multilateral efforts to combat international money laundering and the implications of these efforts for lawyers and the profession. We’re acutely aware of issues dealing with EU regulations (on money laundering) which could do the same thing – turn lawyers into whistleblowers, which we don’t believe is our function.
I would expect the new task force to convene as soon as we can get it together – 15 persons – all senior lawyers. It will be at the presidential level at the ABA, which is as high as it can go.
PR: But it’s still too soon to discern precisely how regulation will be tightened up; the crisis is still ongoing. And that will partly be determined by who is elected to the White House next month…
Wells: It certainly is too soon. Anything could come out of the process at this point. We simply need to be prepared to review new regulations at the highest level, and perhaps give advice and comment to those charged with drafting them.
PR: You have assumed an important role in preparing the American public, judges and election officials for the forthcoming elections, presumably in partial recognition of the legal row which occurred in 2000 when George W Bush prevailed over Al Gore.
Wells: Yes. We have been essentially trying to marshal our resources dealing with election law issues. These have been assembled on one website that tells you all you need to know – whether you’re a voter, a lawyer or a local bar association, or indeed whether you are an election official or judge who needs to know the state law on voting. For example, there could be different registration requirements or different absentee ballot requirements. We have done a remarkably good job at pulling this together on an interactive map of the US, which takes you to all the requirements for each state. It could even be used almost as a bench book for judges if they need to get involved in disputes about a particular ballot, or even consider an entire election contest.
PR: Another priority for you is reforming the process for appointing Federal Court judges, who sit for life and make critical decisions involving the US Constitution. I note that the ABA has gone so far as to describe that process as increasingly ‘venomous and dysfunctional, in many cases paralysing the courts and the Senate’. Can you explain?
Wells: Federal judges are appointed by the president, with the advice and consent of the Senate. Over the last 12 to 15 years, the process has been much too bitter, partisan and politicised. Our suggested solution, for citizens’ nominating commissions, is certainly not a panacea, but it does seem to be working in eight different states. They have an independent commission of lawyers and citizens who essentially make recommendations as to who should be appointed when there’s an open judgeship.
There is no ‘one size fits all’ model; that’s up to the individual states. You’re certainly never going to take politics out of the process, but it certainly seems to us to be a way of making it more open. The commissions would be free to submit names, though this would not be binding on the president because he or she has the authority to appoint anyone they please. But it would give the president a list of names that had been vetted within the locality where the judge is going to serve. And this could lessen the partisanship in the confirmation process if the president then picks one of the people on the commission list and the senator agrees.
Florida is a good example where this works in practice, because you have one Democratic senator and one Republican senator. They have a long tradition of this going back maybe 30 years. Clearly, when a Democratic president has been in office over those years they are more likely to submit a list of Democratic names and vice versa with a Republican president. But, in each case, it is a list that has been looked at by people in the community where the judge will serve.
PR: Is there any indication that more states are considering this?
Wells: The most recent one is Colorado; one senator set up a commission, but the other senator decided not to go along. It obviously works better if both agree to do it. We’re also recommending to the White House that it set up similar commissions for our courts of appeal judges, who sit by circuit and so cover multiple states. We have presented this idea to both of the campaigns. That’s been done once before, when President Carter was in the White House (1977-1981). When President Reagan was elected, he rescinded the Executive Order and the plan fell into disuse.
PR: To what extent has the ABA attempted to influence the presidential campaigns – given that you must remain neutral?
Wells:We make no campaign contributions, we endorse no candidates and we have no political action committee. When we lobby the campaigns, or Congress, or the White House, we do so solely on the merits of the issue.
PR: It must be a careful balance to achieve, particularly given the ABA’s strong views on Guantanamo, military tribunals and the rule of law. They could be seen to verge on the political…
Wells: There’s always a line, and it’s not always a very clear line, as to where the rule of law ends and politics begins. There’s clearly some overlap, particularly when an administration takes a position that we believe, as lawyers, runs contrary to the rule of law. I believe the positions that we took after 9/11 – in terms of habeas corpus, in terms of Common Article 3 of the Geneva Conventions – have been mostly upheld by our courts.
PR: The military tribunals are convening though…
Wells: We have serious reservations about the fairness of the tribunals. Some of those concerns relate to secret evidence. My personal view is that we have the law of war on the one hand and the criminal justice system on the other. The military tribunals appear to me to be somewhere in between. It’s really not strictly the law of war, nor is it strictly the criminal justice system. To some extent I believe we are making it up as we go along and I don’t think we’re necessarily doing a very good job.
PR: The argument of the administration being that the detainees were not legitimate prisoners of war and, therefore, the Geneva Conventions did not apply…
Wells: Because they were illegal combatants, they were not in uniform on a field of battle and, therefore, they were not technically prisoners of war. One of the problems with that analysis is that even illegal combatants – assuming that is a correct designation, and I think under the law of war it probably is – get released at the conclusion of the war, as prisoners of war do. But we are in a situation where it’s not a traditional war in any sense that anyone can foresee a resolution. So are we merely going to detain these people forever? Even with the military commissions going forward, vast numbers of the detainees at Guantanamo have never been charged with anything other than being picked up supposedly on the field of battle as illegal combatants.
PR: So you’re essentially saying charge them with something or let them go. Or is that too simplistic?
Wells: It’s a shorthand way of looking at it. There have been some procedures set up, in between the law of war and the criminal justice system, to determine whether or not the detainees were in fact enemy combatants, and the administrative procedures we thought were flawed because the detainee was not given a lawyer, in the sense that he could provide privileged information that would not be given to the tribunal. They were given a representative but the representative was not a lawyer. Therefore, there was no privilege attached.
A few of the detainees were determined to be, in the military parlance, ‘NLEC’ – no longer enemy combatants – which I thought was a great term! They’d been there five years and, all of a sudden, they administratively determine this person is no longer an enemy combatant. I’m not sure how their status can change after being in detention for five years. They were either an enemy combatant when they were first detained or they were never an enemy combatant at all.
PR: Has the ABA taken a view on the camp itself – whether it should close?
Wells: No.
PR: On a related matter how have you addressed the subject of what is – or is not – torture?
Wells: Our view is that, number one, the US should not engage in torture, period. Interestingly, (Republican presidential candidate) Senator McCain is one of the most outspoken proponents of that position, having been a prisoner of war and having been subject to what we would consider torture.
Our position is that any interrogation should follow the Army Field Manual, which has been fairly recently revised and sets forth what are commonly regarded as allowable interrogation techniques that do not cross the line into torture.
PR: Is there a view in the ABA – as in some other quarters – that the US’s stature as an exemplar to the rest of the world in respect of the rule of law has been damaged over recent years?
Wells: Well, let’s put it this way, it’s very difficult for us to say we are fighting for the rule of law abroad when we are not honouring the rule of law at home.
Note
Biography
H. Thomas Wells Jr is a partner and founding member at Maynard, Cooper & Gale, in Birmingham, Alabama. Wells has a litigation practice with emphasis on complex environmental, toxic tort law and products liability cases.
He has served on numerous committees and in leadership roles in the Alabama State Bar, the Birmingham Bar Association and the American Bar Association.
Wells has served in the ABA's policy-making House of Delegates since 1991 and was chair of the ABA House of Delegates, the second highest elected office in the American Bar Association, from 2002-04. He is a former chair of the ABA Section of Litigation, the largest section in the ABA with more than 75,000 members.
Wells is co-chair of the ABA’s Special Committee on Disaster Response, which was commissioned after the devastation of Hurricane Katrina. He also has been a member of the ABA’s Commission on the American Jury and the ABA Commission on the Future of the Legal Profession.
Wells lives in Birmingham, Alabama. His two children are also lawyers in Birmingham and active ABA members.
No comments yet