Ethics duncery, abuse of influence, cowardice, bias…oh, lots of things.

The president of the American Bar Association, Mary Smith, leaped onto the careering Hamas-Israel Ethics Train Wreck on behalf of the organization she leads, issuing a statement two days after the October 7 terrorist attack on music festival attendees in Israel that said,

“The American Bar Association unequivocally condemns the attacks of Hamas on Israeli citizens that have killed hundreds. The kidnapping of helpless civilians by Hamas—including women and children abducted at gunpoint—for use in Gaza as hostages and human shields violates international laws. Brutal attacks on civilians are never a solution to disputes or a justifiable way to air grievances. Israel and the Palestinians have had long-running disagreements and differences, but that in no way justifies the actions of Hamas. The state of Israel has the right to exist, and its citizens are entitled to live in safety and peace. The ABA calls on both sides to show restraint to spare the lives of the innocent people caught up in these attacks. The ABA also calls for all hostages to be released and for all parties to stop hostilities and settle their disputes in a peaceful and legal fashion and with the rule of law.”

For a lawyer (and the supposedly most prestigious lawyer organization), that’s an astoundingly self-contradictory statement. Despite giving lip service to the obvious definition of a terror attack on civilians as unjustifiable, the statement goes on to claim that Israel has no right to respond to the attack as an act of war, calling for a “peaceful solution” while implying that any armed response will breach “the rule of law.” Then she struck again on October 17, writing that the ABA,

“has watched with deep concern as the violence in Israel and Palestine has continued to escalate over the past week, leading to the deaths of over 1,000 Israelis and over 3,000 Palestinians in Gaza, most of them reportedly civilians. The ABA reiterates our condemnation of targeting of any civilians in any way. We again call on all parties to uphold international law, which forbids killing civilians, hostage-taking, collective punishment, forced displacement, ethnic cleansing and cutting off water, food and other necessities to captive populations. [The ABA’s members] are also deeply disturbed to learn that the violence overseas has led to violence here in America, including the murder of a 6-year-old Palestinian Muslim child and the attempted murder of his mother in an alleged hate crime in a Chicago suburb last weekend. [ The violence is ]unacceptable. So is the rhetoric that leads to such violence. We condemn the rise in antisemitism, anti-Palestinian racism and Islamophobia that we have seen in public discourse in recent days. We call on members of the legal community, including legal employers, law schools and other legal institutions to recognize the humanity of both Palestinians and Israelis when commenting on the crisis and to ensure that employees, students and others can respectfully express their diverse view without fear of unjust punishment or censure.”

For decades, the ABA has routinely stepped beyond its proper boundaries to abuse its position and reputation while allying” itself with far-left, extreme progressive positions that are not embraced by many in the legal community nor anything approaching a clear majority of its members. But the ABA really “stepped in it” this time with these “both sides are wrong” appeals to international law that does not apply. Israel has not “targeted civilians,” but civilians are at risk of peril when their leadership pulls them into a war. Nor is Gaza a “captive” region.

Lawyer Richard Ziegler offered a draft letter on LinkedIn protesting the two statements, and over 900 lawyers signed it. It read…

Dear President Smith and Senior ABA Leaders:

This letter is submitted on behalf of XXX members of the ABA and YYYother lawyers who have looked to the ABA for leadership and guidance on important legal issues.  We expect that additional members and lawyers will join this letter after it has been more widely circulated.

We renew the requests made in our letter dated October 16, 2023, submitted on behalf of 135 members of the ABA, and the follow-up email of October 19 from Messrs. Levin and Ziegler, requesting revisions to the ABA’s public statements concerning the Hamas-Israel war on October 9 and October 17, 2023.  For your convenience we enclose a document consolidating the October 16 letter and the October 19 email.

We had sought to address this important and urgent matter privately within the ABA but will publicly release this letter because we received no response to our October 16 letter and October 19 email (other than acknowledgment of receipt of the letter).  We hope the publication of this letter will lead the ABA to respond to our requests.

The public discourse in our country has been marked by distressing moral and legal confusion.   Important legal principles and fundamental historical facts have been distorted and misstated as reflected in demonstrations in our cities and on our college campuses, including law schools, in social media and in some of the reporting and opinions expressed in news outlets.  As you are undoubtedly aware, Hamas’ atrocities and Israel’s response have unleashed a wave of virulent antisemitism, accompanied by bullying and assaults.

Given the prestige and authority of the ABA, its statements’ “moral equivalence” has contributed, however unintentionally, to this climate of misinformation and accompanying misconduct.  In short, the ABA’s public statements have flouted, rather than promoted, the rule of law.

We therefore view rescission and revision of the ABA’s statements as increasingly imperative.  We implore the ABA to revise its statements consistent with the proposed statement sent to you on October 26 by the Chair of the Association’s International Law Section.

As you know, the essence of that proposed statement was that the accurate application of international legal principles to the current hostilities should lead the ABA to affirm that:

1.      Hamas’s atrocities perpetrated on Israeli civilians on October 7, including hostage-taking, continued rocket attacks targeting civilian populations, and other acts of terror, constitute war crimes and cannot be justified.

2.      Hamas must immediately and unconditionally release all hostages and cease violating international law by firing rockets at civilian targets in Israel.

3.      Hamas must immediately cease using innocent Palestinian civilians as human shields, locating military equipment, camps, or headquarters in or near civilian locations such as hospitals, mosques, and schools, and preventing Palestinians from leaving the areas in which Hamas has placed its soldiers and weapons.

4.      Israel has the right to exist and to conduct military actions in self-defense to protect its population and continued existence.

5.      Israel must comply with international law to minimize harm to the civilian population of Gaza and damage to civilian property while exercising its right to defend itself.

6.      Whether Israeli operations accord with the international legal principle of proportionality requires a fact-intensive inquiry that involves consideration of the direct military objective of the specific action in the context of anticipated collateral harm to civilians; no principle of international law requires comparable casualties, civilian or military, of the two sides to an armed conflict.  Compliance with the proportionality principle therefore cannot be adjudicated based on headlines and any rushed judgment on the basis of inadequate information is legally invalid and in the current climate risks the escalation of antisemitism in the United States and elsewhere.  Of course, all harm to innocent civilians is tragic and we encourage Israel, as it acts in self-defense, to continue to take steps to avoid civilian casualties.

The ABA’s troubling statements on these critical issues contrast sharply with the prompt and principled public stances taken by, among other leaders of the bar, the President of the New York State Bar Association on October 9,https://nysba.org/new-york-state-bar-association-strongly-condemns-abhorrent-attacks-against-israelis-arabs-and-the-sovereign-state/, which was subsequently endorsed by that bar association’s House of Delegates on November 4, https://nysba.org/new-york-state-bar-associations-governing-body-condemns-terrorist-attacks-against-israel-calls-for-return-of-all-hostages/,  the President of the Canadian Bar Association on October 10, https://www.cba.org/News-Media/Press-Releases/2023/October/Statement-from-CBA-President-John-Stefaniuk,-K-C , and the more than 5000 lawyers around the world who promptly signed a petition condemning Hamas’ atrocities and standing for the rule of law, Petition Leading Lawyers From Around the World Publish Statement Condemning Terrorism in Israel (ipetitions.com).   In contrast, the voice of the ABA has obfuscated rather than clarified the applicable legal principles.

We understand that there are groups, including ABA members, who do not support the views we are asking the ABA to endorse.  But what is at stake is not policy choices, but principles.

We would be pleased to meet with you to discuss these issues.  However, we strongly urge that you act without delay to amend the ABA’s public statements to avoid continuing to reinforce the legal and moral confusion that has contaminated the public discourse on these important issues.  By doing so, the ABA can live up to its stated mission and goal of “advancing the rule of law” and “increasing the public understanding of and respect for the rule of law.”

The American Bar Association quietly deleted both statements (‘Statements? What statements?’) without explanation. The letter remained in draft form, with Ziegler thanking everyone who had signed on before the letter had the desired effect.

Conclusions:

• Smith should resign.
• The ABA should learn from this fiasco to stay in its lane, and to better define, and more narrowly, what that lane is. The organization is far too political and has a strong, corrupting progressive bias.
• A mass resignation from the ABA would help promote these needed actions.
• This is yet another “Bias makes you stupid” epic, and we have been drowning in them of late…
• The ABA’s humiliation should be a prominent news story, but the progressive media won’t embarrass a fellow traveler, and the average consumer of new doesn’t understand what the ABA is.
• LinkedIn finally served a useful purpose.