California Bar Journal
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Lawyers' response: First, do no harm
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George M. KrawSome 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. 

Autumn in New YorkThe 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.