Conference Stirs Interest in Public Service Law
Berger and the National Security Panel I L. Douglas Wilder Keynote Address
The Enron scandal is bringing intense scrutiny on the American capital system, and one question being asked is, "Where were the lawyers?" said Mortimer Caplin in introducing AmeriCorps founding CEO Eli Segal, the opening night speaker of the 2002 Public Service and the Law Conference.
Enron's bankruptcy is revealing "deceptive accounting, crooked business practices and a breakdown in controls, checks and balances," Caplin said. "Where were the gatekeepers?" In other words, where the folks who felt a duty to represent the public?
The basic problem with Enron is a "failure to observe the fiduciary principle," said Caplin, who is the namesake of the Law School's public service center and a prominent tax attorney who President John F. Kennedy named IRS director. "You can't serve two masters. Which one are you loyal to?"
Scandals such as Enron's collapse "usually occur with the cooperation of a member of the bar," Caplin said. "The standards adopted by lawyers are reflected in their clients. We over-emphasize money as a measure of professional success when we should be focused on promoting the public good."
The annual conference, now in its third year, takes the pulse of public interest issues in politics and legislation and this year focused on topics in bioethics, First Amendment freedoms, economic development, national security and international law, electoral reform, environmental justice, gender issues and racial profiling. Aimed at promoting interest in public service careers, the conference is entirely student-organized and run.
Eli J Segal, AmeriCorps's first CEO and the drafter of the legislation that created the national service program, said he had been involved in seven failed Democratic presidential campaigns when he got a call from then-Arkansas Governor Bill Clinton asking him to be chief of staff on yet another bid. The success of that 1992 campaign ultimately led to Clinton asking Segal to direct the effort to get AmeriCorps operational, and subsequently to be point man on the Welfare-to-Work program. AmeriCorps currently has 50,000 young people in national service roles and President George W. Bush has called for a 50 percent growth in participants next year.
Segal said that the September 11 events transformed the public view of government. "Federal bureaucrats turned from pariahs into heroes. Government is no longer the enemy," he said.
He said he was inspired to government work (he operates a business in Boston separately) by John F. Kennedy's famous "ask what you can do for your country" appeal, in which Segal noted that Kennedy called for service from a sense of virtue, not duty. He said public service should not be mandatory for young people, rather the nobility of volunteerism should be held up to inspire them.
"Let your training as lawyers kindle, not define, your passion for justice," Segal said. "One of the best ways you can improve your community is to be an advocate for the unrepresented. Find a way to make a difference for someone who has less than you. Go forth and make waves," he concluded, alluding to a quote of Robert F. Kennedy's that is mounted in the Law School.
|Katherine Ward, a humanitarian lawyer and consultant for the State Department, urged students to see the human side of international law. Prof. Rosa Ehrenreich Brooks, below, led the panel.|
With former Yugoslav president Slobodan Milosevic's tribunal in the news, high-profile war crimes cases may have gained the world's attention, but participants in the Public Service Conference's international law panel urged students to explore all aspects of international law-including helping war crimes victims, many of whom may not get immediate justice because of the backlog of cases in the international courts system. Having faced murder, rape, genocide and other atrocities, victims need to feel that justice is achievable through the legal system, said Katherine Ward and other participants in the panel, held on February 16. Led by Professor Rosa Ehrenreich Brooks, the panel focused on the role of war crimes tribunals and the challenges they face. "We've got to do a better job of getting the resources in place," said Ward, a humanitarian lawyer and consultant for the State Department. "You have to approach it not just as a lawyer but as a human being."
While trying Milosevic was important to war crimes victims in former Yugoslavia, panelist Lt. Col. Michael Newton, the senior adviser to the United States Ambassador-at-Large for War Crime Issues, said citizens also wanted to establish a legal system that was not tainted by corruption.
|Lt. Col. Michael Newton said victims of war crimes want justice in the legal system.|
"We're improving the domestic states to have a system that really enforces the law," Newton said. "Unless you work from the ground up, you're just dealing with the symptoms of the problem rather than the problem itself." Because of the need for establishing a working legal system on the national level, Newton argued that "international institutions are not the mechanisms of first address but rather last resort."
One problem international courts face, said panelist Kenneth J. Harris, is that "there's no real trigger that determines when the prosecutor should start investigating." Furthermore, if it's clear to warring factions that if they lay down arms they'll be prosecuted for war crimes, then they may decide it's in their best interest to keep fighting. "The actions of the court, if not carefully considered, could ultimately prolong conflicts rather than resolve them," he said.
|Kenneth Harris (above) said the variety of responses to war crimes should be retained. John Cerone (below) applauded the emergence of hybrid courts.|
Overall the real test of the effectiveness of tribunals and international courts is whether they save lives, deter future atrocities, and give a feeling that justice has been rendered, said Harris, who is associate director for multilateral affairs in the Office of International Affairs in the Criminal Division of the U.S. Department of Justice. He said that the variety of responses to war crimes, from tribunals to truth commissions, should be retained.
Panelist John Cerone, the Executive Director
of the War Crimes Research Office of the Washington College of
Law at American University, applauded the recent establishment
of hybrid courts that include national and international judges
and allow local decision makers to stay involved. "We're
learning about the importance of outreach and making those mechanisms
[for justice] available," he said. "The goal of reconciliation
will not come through punishment alone."
While high-profile cases like the one against Milosevic may seem glamorous, some panelists urged interested law students to remember the costs and reality of conflict.
"These international courts are the tip of the iceberg and you might want to think about what you can do beneath the surface," Ward said, in advocating fieldwork in war crimes cases. "We need to give real people the chance to say what they need."
For students wanting to get involved in international law, the panelists said that knowing public international law, having a foreign law degree, speaking foreign languages (especially French if you want to work for the U.N.), and working pro bono could help when pursuing an international law career.
"What you're doing on a day to day basis is touching people's lives," Newton said, "You've got to be human."
|Professor Michael Davis, Law School Professor Richard Merrill, and Erika King (L-R) participated in the bioethics panel.|
The debate over balancing the public's need for affordable, potentially life-saving drugs with pharmaceutical companies' interest in protecting its patents and profits spilled into the bioethics panel at the Law School's Public Service Conference on February 16.
"I don't think a lawyer can advance the public's interest by advocating IP [intellectual property] rights," said panelist Professor Michael Davis, a patent lawyer from Cleveland State University who said he balances doing pro bono work with doing work for the "bad guys."
"Patents are monopolies," Davis said, noting that inventors were once supported by patrons, and now that form of patronage comes through the patent, which Davis called a "government subsidy."
The panelists, moderated by Professor Richard A. Merrill, discussed whether the U.S. government should limit the rights of drug companies to distribute and price their patented products, including drugs that may have been partially funded by the government.
|Davis, argued that drug patents are a government subsidy.|
Davis said that the pharmaceutical industry claims each drug costs $300 to $400 million to develop, test and get approved by the FDA. "Do you think they might overestimate?" he asked, noting that there is no real congressional oversight to determine whether that number is correct. Rather than spending profits on discovering new drugs, Davis said drug companies spend large amounts on marketing, or they develop "me-too" drugs-generic variations on big-name drugs that are cheaper to produce.
He said the last time drug companies were investigated by Congress, in the 1950s, the companies were found to have exaggerated the costs of drug development by two or three times the actual amount. In addition, many companies benefit from government research and development of new drugs; federally funded institutions, such as colleges, may also contribute to drug development by offering their facilities for clinical trials.
Furthermore, only companies can challenge other companies' patents, according to Davis, making it more difficult for patients to fight the patent system. Now that the U.S. is globalizing trade, intellectual property, which was not previously acknowledged by all developing countries, may now affect their economies negatively. "We have told all the other countries in the world to do it our way or face economic sanctions," Davis said. He compared the developing country's situation to that of the U.S. 200 years ago. When the U.S. publishing industry began, it ignored copyrights and re-published foreign work. Despite its auspicious start, the U.S. publishing industry eventually joined the fold in following copyright laws. Davis argued that the U.S. could allow developing countries the same latitude with patents until their infrastructure is stronger.
A self-proclaimed "leftist ideologue," Davis has worked to further his ideals. He served as co-counsel in People with AIDS v. Burroughs-Wellcome, a test case that challenged the patent on AZT-a drug Davis said the government developed 40 years ago.
"There is no anti-IP bar," he said, noting that most companies have a patent portfolio and want to protect the principle of intellectual property. "It's really up to public service lawyers to do this."
|King said that lawyers who work for firms can also look out for the public interest.|
Panelist Erika King, who works for private law firm Covington & Burling, disputed Davis's claims that only public service lawyers could look out for the public's interest.
"There are ways to advance the public interest . . . while working in a big law firm," she said.
King said many of her day-to-day duties involve looking out for patients. She deals with the regulation of clinical trials and the consent process, health care privacy and the health care industry's involvement in efforts to prevent or thwart future bioterrorism.
"I'm in a position to be looking out for the ethical side of a particular issue," said King, who is vice chair of the Biotechnology Committee of the American Bar Association's Section of Science & Technology.
In response to Davis's claims, King said drug companies spend $300 billion each year on research and development. She added that 18 percent of the sales revenue of drugs is turned back into research for new drugs. Part of the reason costs for new drugs-now at $500 million per drug, she said-are rising is due to increased regulation by the FDA, which extended the time required for clinical trials in recent years. Additionally, the length of time to develop and get a drug approved is now 14 to 15 years. Only three of 10 drugs make enough money to cover the costs of the research and development that went into them, she said.
"For many of my clients it is the promise of IP protection and very little else" that keeps them going, she said. "If you want the companies to continue investing, there needs to be financial incentive to do so."
The debate over AIDS drugs in Africa reveals the impact patent laws and health care law can have on the public. When asked by an audience member about the illegal Brazilian manufacture of AIDS drugs destined for South Africa, King said, "there was a lot of debate about what the right thing to do was." She said many drug companies are concerned that some countries in Africa do not enforce patents and feel that the infrastructure to distribute drugs and monitor patients who take the drugs is inadequate. "There are a lot of issues other than getting the prices down," she said, and noted that Americans are already subsidizing the lower cost of AIDS drugs in Africa through higher costs in America.
|Law School grad Helgi Walker spoke at the February 16 conference luncheon.|
Helgi Walker learned the value of public service firsthand while clerking for Supreme Court Justice Clarence Thomas, who told her of the librarians who encouraged him to read when he was a child. "They brought him books when he couldn't come to the library," Walker said in her speech during the Public Service Conference on February 16. She recalled that Thomas told her many times, "'I will never forget those librarians as long as I live.'" Walker added, "Just a little bit of your effort could mean a lot to one person."
Walker, a 1994 Law School graduate, followed Thomas's words as well when she took time off from work to join then Governor George Bush's presidential campaign. After election day she joined the team of lawyers fighting against a ballot recount in Florida. Now an associate counsel to the president in the Office of Counsel to the President in the White House, Walker says the most challenging part of her job is "making sure I get my answers right, because if I'm wrong, I've really messed up."
During her public service career, Walker has worked for a congressman, clerked for judges, and served as a legal adviser at the FCC. When it comes to public service, she said, "I don't want to be sued by Nike, but you should really just do it."
During her speech Walker outlined Bush's new plan for USA Freedom Corps and its agencies and programs—AmeriCorps, Senior Corps, the Peace Corps, and the newly created Citizen Corps, a program to help citizens prepare their communities for the threats of terrorism. Bush hopes to increase AmeriCorps participation by 50 percent and double the number of Peace Corps volunteers over five years, she said.
|Former National Security Adviser Samuel R. Berger urged a political and military response to September 11. Photo by Alison Perine.|
The terrorist attacks of last year were a "watershed that reshaped our thinking and brought home that what happens in the rest of the world matters to us," said Samuel R. Berger, former national security adviser to President Clinton, in prefatory remarks to the conference's plenary session on national security law. "Nine-eleven breeched the wall of the unimaginable and exposed our vulnerability as an open society," Berger said. "It also shows the need to eliminate the gaps between societies."
"It's not the last attack in the U.S"
The response to the attacks must take two forms, one military and the other political, he said. "We are making progress in destroying the terrorist network but we have not by any means ended the threat. If Osama emerges in six months, then the lesson of 9/11 is one of defiance, not defeat. We must be persistent in our military action."
Second, "we must stabilize Afghanistan
and support Pakistan and President Musharraf," including
brokering peace between India and Pakistan. "We need to be
even more deeply engaged in the Middle East between Israelis and
Palestinians and we need to get the [Persian] Gulf states to see
that pluralism and openness are not enemies of Islam.
"The United States has to use its power internationally to create well-being. Our power is perceived as legitimate by other nations only if it used in this way," Berger said.
"Nine-eleven is NOT isolated. It is part of a long-term threat. It is not the last attack in the U.S," Berger warned, adding that we cannot afford to be "frozen in sterile ideological debates" over information sharing between the FBI and the CIA or about whether the introduction of national identification cards is the first step in the creation of an American police state.
"Our concept of security needs to change from being threat/warning-based to a vulnerability-based approach. The FBI is moving from solving crimes to preventing and preempting terrorist attacks. We need to reexamine the legal regimes that help or hurt the government's attempts to make us secure and see that they have good rationales."
The USA Patriot Act, passed within six weeks of September 11, "raises many questions that really weren't debated," Berger said. "What is the role of the military in homeland security? Our posse comitatus law prevents domestic use of the armed services. How should we decide the fate of captured al Qaeda fighters? How much due process is due? We want to freeze the assets of terrorist front organizations. How much proof do you need for that? Our law now allows secret grand jury testimony to be shared with security officials. Is it a good idea to breech that secrecy? How about profiling?"
"We should not underestimate this enemy," he said. "It is as great as any we have ever faced. But we are resilient. . . . We have prevailed against Nazism and communism and we will again if we have as much staying power as firepowerif we maintain our decency as a people, if we keep our balance."
"It was a failure of intellect"
|Frederick Hitz said the CIA's power should be strengthened. Photo by Alison Perine.|
Frederick Hitz, former inspector general of
the Central Intelligence Agency and now a professor of law at
Princeton University and at U.Va., said the CIA should be "unleashed
to do a more vigorous and aggressive job.
"What can strengthen its hand?" he
asked. "Nine-eleven was a massive intelligence failure, but
not necessarily a failure of intelligence agencies. It was a failure
of intellect. No one put their minds around the possibility that
a small band of terrorists could turn airplanes into missiles."
He noted that the USA Patriotism Act includes a sunset clause that ends the law's force in five years. It was written to "allow us to pursue terrorists, not to collect general information on Americans," he said.
Hitz opposed the idea of assassinating hostile leaders, calling the ban "a wise restriction." Who would decide who should be killed, he wondered. "Only the president should order an assassination and it should be done as part of a military operation."
Hitz also supported the use of "dirty assets," sources that may have criminal pasts. "That's been done already, as a matter of course. People who give us information are by definition traitors to their country." He said so-called "angel assets" such as journalists and aid workers should also be tapped for information.
"This is now a country in which people disappear in the middle of the night"
|ACLU General Counsel Rachel King expressed concerns about the growth of executive power. Photo by Alison Perine.|
Nine-eleven has caused a rise in security around government operations and a loss of personal privacy, said American Civil Liberties Union General Counsel Rachel King, who took a less benign view of domestic anti-terrorist measures.
"In a democracy the people should have a lot of information about the government and the government should know little about the people," she said. "That's been turned on its head. There's been a large growth in executive power that should concern us all."
The ACLU has been trying to get information
on roughly 1,200 people detained after the attack who have not
had charges revealed and is now suing the government over it.
"This is now a country in which people disappear in the middle
of the night and their families and the press cannot find out
where they are."
FBI general counsel Pinkerton later disputed this claim and asserted that all the detained are being held legally. "Every one of these was decided by a judge," he said. Most are being held for INS violations, on federal criminal charges or as material witnesses, he said.
King said the rise of secrecy has led to a profound change in the Freedom of Information Act, "from a presumption of releasing information to a presumption not to release information."
She said the USA Patriot Act had been hustled through Congress without due analysis. "There was no committee process in the Senate," she said. "In the House Judiciary Committee there was a thorough markup process and the committee, which has the most ideologically polarized in the House, voted 36-0 for the revised version. But that version was not allowed to come before the House for a vote."
The Act expands the government's ability to conduct wiretaps without reason to suspect a crime and gives access to e-mail without a warrant, King said. "Congress failed in its duty to stand up to the executive branch." It is essential for the judiciary committees to be involved in the process of making antiterrorist laws, she said.
|Former Gov. Wilder said the Virginia Democratic Party has some rebuilding to do. Photo by Alison Perine.|
Conference keynote speaker L. Douglas Wilder, the first African-American elected governor of any state, retraced his early career in law as an encouragement to students.
"The law was the vehicle by which I stumbled into public service. I guess you could say politics is public service," he quipped.
He was inspired to be a lawyer by the victory of integrationists in Brown vs. Board of Education. "But I didn't want to a civil rights lawyer. I had always wanted to be trial lawyer. I wanted to be known as a lawyer who could get things done."
A graduate of Virginia Union University and Howard University Law School, he said he was attracted to a legal career when, as a bitter, combat-decorated veteran returning from the Korean War, he found himself angry over defending freedoms that he wasn't personally enjoying at home as a black Americanand, he said with a grin, as a means of "owning a good suit of clothes and perhaps even a car." In the years when the Virginia State Bar would admit only one black lawyer in any year, Wilder earned the distinction. Gung-ho about the profession, he revived the moribund Old Dominion Bar Association, founded to be the black bar organization, which has met regularly ever since.
He spoke with pride of his repeal of the former Virginia state song, "Carry Me Back to Old Virginny," and his ultimate victory in having Martin Luther King Day recognized as a state holiday. As for deciding to run for governor (he was then the first black elected to the state Senate since Reconstruction), he said, "There is one word for what politics is about: money. I thought to myself, don't argue about where the pie should be cut, get your hands on the knife."
In answers to questions, Wilder said he thinks the state's 21-day limit on introducing new evidence in capital punishment cases "unquestionably" should be changed and that civil rights of felons should be restored without their having to petition for them.
He said Governor Mark Warner's proposal to hike
college tuitions by 5 percent but send the new money directly
to the state's general fund amounted to a tax on students. "I
think it's bad. I don't see the legislature supporting it. As
they say in the country, that dog ain't gonna hunt." Wilder
is the chair of a commission formed by Warner to recommended efficiencies
and economies in state expenditures. Their report is due in August.
That's a tight deadline, Wilder said, but he could already see
ways to save money.
U.Va. will be entering a competition with Howard and Hampton Universities to design a new slavery museum to be built on a 40-acre site off Interstate 95 in Fredericksburg, he said.
He said the Virginia Democratic Party has rebuilding to do and that future campaigns must be based "on issues, causes that advance the benefit of the people."
Meanwhile he urged greater controls over
the influence of large-dollar campaign contributors. "There
are mixed signals out there. Virginia is a tough state, a tough
state. We've got to get the big money out. Virginia's laws are
so lax people come here from all over the country to organize
their political action committees. Money does control politics,"
he said emphatically.
Reported by M. Marshall and M. Wood