State of the Judiciary

In September 1999 the Commission on the Future of Vermont's Justice System issued its Report. I began the final portion of that Report - entitled "Into the Future" as follows:

The war in Kosovo. The killings at Columbine High School. . . . Each triggers indelible images. All have consequences beyond the event. None had occurred when this Commission began its work in June 1998. Reminders - if any are needed - that what is on no one's mind today may be on everyone's mind tomorrow.

It took no particular power of insight to observe "that what is on no one's mind today may be on everyone's mind tomorrow." But who among us contemplated an event that two years later would literally change the world - and each of us.

If not all of us have reexamined our perception of fate or our sense of vulnerability, certainly none of us will ever again hear the date September 11^th without indelible images being triggered.

Somewhere between one's acceptance of fate and one's awareness of vulnerability is the life each of us lives - and in a broader context is the life a society chooses to create. It is that life and the role that law can play in it that I briefly address today.

Of all the heartbreaking stories of September 11, surely none was more tragic than that of Pentagon analyst Bryan Jack. First assumed to be among the missing in the ruins of the Pentagon where over two dozen of his fellow analysts had died, it was then determined that he had been assigned to fly to California on the 11^th. Mr. Jack never made it. He was on American Airlines Flight 77 when it crashed into the Pentagon.

Fate and vulnerability are not topics to which most Americans have given much thought. To the extent that it can be said there is a national character, I think it fair to ascribe to our society a belief that our destiny is chosen not fated, and further, that if we are not invincible we are largely untouchable.

Much of the world holds a different view. In John O'Hara's Novel Appointment in Samarra, he retells a story from the Middle East.

There was a merchant in Bagdad who sent his servant to the market place and in a little while the servant returned, white and trembling.

The merchant lent him his horse and the servant rode away as fast as he could flee.

Then the merchant went down to the marketplace and he saw Death standing in the crowd and the merchant said: "Why did you make a threatening gesture to my servant when you saw him this morning?"

"That was not a threatening gesture" said Death, "it was only a start of surprise. I was astonished to see him in Bagdad, for I have an appointment with him tonight in Samarra."

One test of an individual - and again in a wider sense of a society - is the capacity to distinguish between belief that can be enabling and belief that can be disabling.

There is a spirit that can sustain a society, even in times like these - especially in times like these - against those who perceive the future ordained by historic inevitability or word of Allah or the hand of fate.

It is the spirit of liberty defined - as I have had previous occasion to note - by Learned Hand as "the spirit that is not too sure it is right."

It is instructive to recall that Judge Hand's words came not in a judicial opinion but in a speech. The remarks were made in 1944 at an "I Am an American Day" ceremony in New York city's Central Park. 150,000 newly naturalized citizens swore their oath of allegiance. Over one million people were in attendance. As his biographer has written, Hand's remarks were delivered in the midst of war when "patriotism was at its zenith."

I have returned to Judge Hand's words because I think they are especially significant to our present - and our future.

A critical commentary of the Baker opinion, noting that I had used the Hand quotation in a speech, cited it as "proof" that I can not tell right from wrong.

I believe I can. What is more, I have no quarrel with those who would use "right and wrong" and "good and evil" to describe the horror of September 11^th. Whatever one's view of cause and effect, one cannot escape the fact that we are dealing with terror not reason.

The poet Steven Dunn has it right, I think, in his poem "To a Terrorist":

But the knowledge that there is good and evil - indeed the acceptance of Burke's aphorism that "the only thing necessary for the triumph of evil is for good men to do nothing" - does not provide (at least it has not provided me) with the certainty that I know the right means to combat evil - the right methods to protect the good.

In this society to an extent far greater than any place in the world, we have placed our faith to sort out means and methods in the framework of a legal system.

That faith - I mean the confidence of Americans in the law and lawyers - is about to be tested in ways beyond our precedent and experience.

To meet that test each of us must understand as Lincoln understood that "as our case is new, so we must think anew and act anew."

I respectfully submit we will fail that test if we relapse into the tired responses of those who parrot stereotypical views of "law and order" or "civil liberties."

Now with the imminent danger of September 11 seemingly receding, we revert to taking our cues from those we find politically comfortable. In the debate over the use of military tribunals, for instance, it is, for many, enough to know which side of the issue John Ashcroft is on and which side of the issue Pat Leahy is on.

As Harvard's Professor Phillip Heymann has said, one cannot address the question in broad categories without more facts. Heymann (who opposes the use of military tribunals) reached his conclusion because factually he found the approach wholly unnecessary for security and counter to our national traditions of justice, not because "in the abstract" he favors liberty over security.

"In the abstract" is the place we can no longer be. As lawyer citizens with a profound responsibility to ensure a legal system that retains the faith of Americans by preserving safety consistent with the least sacrifice of liberty, it is irresponsible not to be engaged in an extensive and open minded search for the legal means to address the risks of "catastrophic terrorism." To quote Lincoln again, "If there ever could be a proper time for mere catch arguments, that time surely is not now."

As others have pointed out, we have had experience in dealing with crime, experience in dealing with war, and experience dealing with disasters but we are now confronted with a challenge that contains aspects of all three. The law of military tribunals, the precedents arising from cases of ordinary law enforcement, and archaic statutes addressed to 19^th century epidemics are unlikely to be easily applied to the legal issues inherent in confronting terrorists whose aim is to destabilize a society's confidence in its fundamental structures.

As lawyers we share an almost religious faith that nothing is more fundamental than the Constitution. But that is a faith that is not shared as deeply by most Americans. More to the point, if as attorneys our confidence in the Constitution is a product of an unexamined faith, we may find ourselves and the Constitution as marginalized as those who mechanistically invoke their own religious beliefs as a response to the crisis we face.

It would be well to remember that at the outset of the Civil War (the nearest historical parallel we have to confronting real issues of internal security and civil liberties), there was a widely shared view that the United States Constitution - then only 70 years old - would not survive the crisis. That certainly was the European view, where in 1861 Parisians told the story of a bookseller who upon receiving a request for a copy of the United States Constitution replied" "I do not deal in periodical literature."

From its first day the Civil War became the supreme practical test of the Constitution's adequacy. As historians have noted, the Civil War "jumbled peace and war zones in a manner confusing to a generation that had learned from simpler texts."

Lincoln, of course, did not wait for those living "in the abstract" to catch up. As one historian observed:

"The arbitrary arrests, the suspension of habeas corpus, and the impositions of martial law flowed from the Constitution's recognition of the employment of force in certain situations. No rule existed to gauge when the moment had arrived to exert force. Judges were not better fitted than the President or Congress to anticipate events or to know remedies."

Yet what is noteworthy, in retrospect, is the "persisting agreement that the Constitution mattered;" the search for readings of the Constitution that would harmonize power and liberty; and the insistence that the discrepancy between what had to be done and what could be done constitutionally be kept as narrow as possible.

We are a generation that has learned from "simpler texts" - and simpler times.

Speaking for myself, at least, faith in the capacity of our Constitution to meet the challenge of democracy was easy to come by. Because at some unspoken, unexamined level I believed that what I held most dear - which included the Constitution - was untouchable.

But here is a lesson from the next generation in the words of a 16 year old whom I know well - and who on September 11, 2001 was working as Page in the United States Senate.

It is unbelievable to see this. A bright flash of orange flickers across the screen, and smoke pours out, twisting up the world Trade Center tower like a vine. I feel sorry but not alarmed yet. I don't suspect that it is a danger to me. . . .

I go out through the lobby to start setting up the senator's desk. I love being on the floor in the morning, everything is clean and quiet, none of the chaos that comes later is there yet. . . .

. . . I walk into [the Hart Senate] office building where a group of men and women in black are talking seriously and in such low voices that it's almost a murmur. . . . As I walk out of the room, I see people running down the stairs. I don't know what is going on. An intern . . . with wide eyes grabs my arm. "You've got to get out of here. The Pentagon has been bombed!"

I jog down the stairs. [My] footsteps echo and sound like falling books. People are passing [me], but no one stops to say anything. I can't see the intern any more or her friend. I feel scared and helpless. I stare blankly down at the envelopes for a moment, wondering if I should deliver them or not. My thoughts are not clear at all. I go to the phone and call the cloakroom. "Who's this?" a staff member answers, "Katie? Where are you right now?" "Hart senate building." My words sound fragile, as if my breath is blowing them away before they can be heard.

"God," they say, "You have got to get out of there fast. Go back to your dorm. Don't stop." I hang up and stand there a moment. The police officer barely glances at me. Suddenly, he freezes. He bends his head into the radio. "A plane has been spotted heading this way. Christ, it's a red alert." I start to run. A security guard waves me on. I pass someone I know from the Capitol. "RUN!" he shouts. "Don't stop. . . ." Sirens are wailing . . . it's surreal. I am waiting to wake up.

I reach Webster Hall and go to the basement. We wait, and then I hear that I have to leave. I get in the car, and we slowly inch through traffic. Then . . . we are out of Washington. I collapse against the window and listen to the crying of the sirens. We are not untouchable and I am seeing this for the first time in my entire life.

If we have not yet reached the crisis where one "should utter nothing for which they would not willingly be responsible through time and in eternity," we surely are at a point where complacency in deed or thought is inexcusable.

I am not certain we have fully grasped that lesson. But I know someone who has.

Between the knowledge that we are not untouchable and the appointment we all must keep is where we each must live. And there - if as lawyers we are true to our past and worthy of our future - is where we still find liberty's spirit.

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