WHAT LAWYERS CAN DO IN THE WAKE OF THE TERROR

By MICHAEL C. DORF

Wednesday, Sep. 19, 2001

In Woody Allen's film Manhattan, guests at a cocktail party express concern about an upcoming neo-Nazi rally. One partygoer comments with satisfaction on the cleverness of an essay lampooning the marchers. Allen's character, Isaac Davis, is unimpressed. "Well, a satirical piece in the Times is one thing," he remarks, "but bricks and baseball bats really get right to the point."

Indeed. Writing yet another condemnation — satirical or otherwise — of last week's brutal attacks on American civilians seems almost profane. Deeds, not words, are needed now.

And yet, other than donate money, physical labor, and blood, what else can those of us who earn our living in the law do? Quite a lot.

The Immediate Task at Hand

[Uniting Across The Nation]

In the immediate aftermath of the disaster, the most urgent problems have been medical and logistical. As time goes by, the pressing need for a wide variety of other services — including legal services — will become apparent.

For example, the main office of the Legal Aid Society of New York, at 90 Church Street in downtown Manhattan, was devastated by the attack. The Society and its desperately poor clients will have great need for office space and volunteers. (Legal Aid lawyers are still reeling from the destruction of their headquarters, and have not yet set up a system to accommodate volunteers. When they do, I'll post the information in my column.)

Of course, lawyers are already on the front lines of the response. The massive investigation being undertaken around the country and the world involves numerous lawyers doing the unheralded but supremely important work of sifting through mountains of evidence to find all those who participated or aided in the attacks. That effort is vital, for if our government is to fight a war, we must first find the enemy.

The Historical Precedent of Pearl Harbor

Numerous commentators have compared last week's attack to the bombing of Pearl Harbor. In my view, it is worse, not simply because there were more casualties, but because Pearl Harbor was a military target. The bankers, lawyers, maintenance workers, secretaries, waiters, waitresses, and others who earned a living at the World Trade Center were attacked because they were civilians.

In the aftermath of Pearl Harbor and the entry of the United States into World War II, righteous anger led many U.S. service members and ordinary civilians to commit acts of heroism and self-sacrifice. But the hatred of the Japanese that gripped the nation made it difficult for many to distinguish friend from foe.

The result was a dark chapter in American legal history. In May 1942, the U.S. military ordered all persons of Japanese descent — including U.S. citizens of unquestioned loyalty — to leave their homes on the West Coast and report to "assembly centers," where they spent the war in captivity. The United States Supreme Court upheld the policy in 1944 in Korematsu v. United States.

The episode is a stain on the records of liberal icons like Hugo Black, who wrote the opinion; William O. Douglas, who joined it; and Earl Warren, who as California Attorney General, had been a principal proponent of the Japanese internment policy and enthusiastically participated in carrying it out as governor.

In 1988, Congress issued a formal apology and reparations of $20,000 to each surviving internee. Will we similarly live to regret the measures we take in the wake of this latest act of infamy? That depends on whether we can channel our justified outrage appropriately.

Fight the Real Enemy

In his address to the nation on the night of the attack, President Bush warned that our national response would not distinguish between the perpetrators and those who harbored them. The President and Secretary of State Powell have since repeated this warning.

Their strategy is correct. To fight a shadowy enemy may require severe measures against nations and individuals that provide that enemy with cover, and there are at least initial encouraging signs that nearly all the nations of the world will cooperate.

Yet even as our national defense effort rightly targets both terrorists and their protectors, and even as we accept the hard moral truth that effective action may unavoidably and regrettably result in collateral civilian casualties, we must not give in to blind hatred of the sort that gripped our leaders six decades ago.

Make no mistake. The United States has real and ruthless enemies who must be stopped. But enemies should be identified based on their support of terror, not their ethnic or religious identity. In particular, Americans should resist the temptation to assume the worst of all Arabs and Muslims here and abroad.

Yes, the images and reports of some Palestinians in Nablus celebrating the massive loss of innocent American civilian lives were truly sickening. And sadly, they were not all that surprising: similar celebrations have occurred in response to suicide bombings directed at Israeli civilians. But, as Jordan's King Abdullah forcefully explained, that was not the reaction of all Palestinians, Arabs, or Muslims.

Civil Liberties Must Be Preserved

In the United States as it existed little more than a week ago, racial profiling was widely recognized as a harmful infringement of basic civil rights. That was then. Now that everything has changed, many Americans will no doubt think that we can ill afford such amenities as civil liberties. Better to endure police checkpoints and routine searches, they will reason, than to succumb to indiscriminate destruction of life and limb.

I cannot say that this reasoning is flawed. Some balance between order and liberty must always be struck, and it would be reasonable to place greater weight on the order side of the scale in response to the current threat.

At some point, however, additional limits on liberty will actually undermine our security. Persecution breeds resentment, resentment breeds hatred, and hatred breeds violence. If we are to succeed in fighting terror, we will need all the friends we can get — especially in the Arab and Muslim world. And that is to say nothing of the inherent wrong of ethnic stereotyping and violence.

For me these lessons were brought home by one of the many emails I received in the hours after the attack from concerned friends all over the world. This one was from a Muslim former student living in the Middle East. He wrote: "Please remember that your student is always with you, with all my heart and soul. For a long time I was so depressed about the attacks in Israel. Unfortunately, there was a live-bomb attack in Istanbul yesterday. At least two people died and twenty were injured. Now this one . . . ."

Now this one. But what next?


Michael C. Dorf is Vice Dean and Professor of Law at Columbia University in New York City.

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