Some lawyers claim a pivotal role for the legal
profession in the protection of civil society. We are the "guardians
of the system of justice and advocates for the rule of law" upon
whom "the future of democracy depends," wrote an American Bar
Association official in the aftermath of the September 11th tragedies
in New York and Washington.
But no one asks lawyers to die for the
Constitution. No one expects attorneys to rescue the victims and
physically confront the authors of a terrorist outrage. The legal
profession will not fight this war, even if individual lawyers may do
so and even though some already have died in it. Police, firefighters,
soldiers and sailors are the first line of defense in our democracy.
It's taken for granted that these men and women may risk their
lives. They are the citizens most directly affected by policy and
legislation adopted in response to the terrorist acts.
As the bar debates these policies and laws, it
should first resolve to do no harm to those who defend us.
Their peril is immediate. Hundreds of
firefighters and police were killed in the destruction of the World
Trade Center. Memorial services continue a month after the attack.
Professor Amitai Etzioni calculates that the firefighter and police
dead alone left more than 1,000 orphans.
The defenders have a right to ask what laws need
revision to protect our democracy. Attacks by Muslim extremists
estranged from the mainstream of Islam range worldwide from the
Philippines and western China across Central Asia, Africa and Europe
to the Americas. The United States has become their special enemy -
its role aptly symbolized by the dagger piercing America on the cover
of the al-Qaeda terrorist operations handbook. Democracy, tolerance of
religious and ethnic differences, the emancipation of women, freedom
of speech, our books, our culture and our ideas all disgust these
fanatics. They and their sympathizers are not fighting for the right
to be different from Americans in all our diffuse forms, but rather to
impose their own warped vision of civilization upon the entire world.
As with the Nazis, America finds itself in a war
in which the destruction and killing will not stop even if we choose
not to fight. These are not individuals who can be reasoned with and
converted to the rule of law. We confront a foe who is eager to obtain
greater means of mass destruction in order to kill ever more
efficiently. They no doubt hope that their next attack will kill a
million or more Americans.
Much of the legal commentary since Sept. 11 has
been disappointingly parochial and oblivious to the larger threat that
this cancer presents the entire world.
The commentary instead has focused on supposed
challenges to American civil rights, without addressing the broader
dangers to American democracy. Some lawyers want to block new laws
that would facilitate electronic surveillance and ease the prosecution
of terrorists. Others complain about proposed rules that would allow
the Attorney General expeditiously to detain or deport aliens with
links to terrorists. Even after Sept. 11, attorneys continued to
challenge Clinton-era improvements in airport security.
None of these proposals threaten basic liberties
of citizens. Not surprisingly, those who are most at risk fighting
terrorism favor the plans. They do so not because they want a
"police state," but because they do not want to die. Lawyers and
other citizens have an obligation not to compel needless risks by
denying defenders the legal tools required to do the job.
Other government critics have insinuated that
federal and local governments don't care about protecting Muslims,
either in this country or abroad.
This ignorant insult ignores the fact that
hundreds of American soldiers and marines died defending Muslim lives
in Kuwait and Lebanon. Today, thousands of American servicemen and
women, many of them called-up reservists, risk their lives protecting
Muslim citizens of Kosovo, Bosnia and Macedonia. At home, police
forces aggressively pursue the hate crimes of domestic bigots.
Before anyone inside or outside the legal
profession criticizes government actions, they should well consider
the dangers ahead. This is especially true for bar association
leaders. The immediate task is to defend civil society, without which
civil liberties cannot exist.
Lawyers may be guardians of the system of
justice, but let us display some humility in that task.
We do not work alone. The police and firefighter orphans from
the World Trade Center destruction will grow up knowing that.
George M. Kraw is a lawyer in San Jose.