After dropping off my daughter at school this morning, I heard the radio station play the excerpt of F.D.R.’s address to Congress on December 7,1941. Listening to that aristocratic nasally alliteration intoning about a day that “shall live in infamy,” made me think about how our generation reacted to the attacks on 9/11. Would history judge Guantanamo Bay, the extraordinary renditions, the torture interrogations in the same light as FDR’s imprisonment of American citizens in concentration camps based upon their race?
Looking back in time from 2017 to 1941, the use of Executive Order 9066 to imprison tens of thousands of innocent American citizens, depriving them of their homes, businesses, destroying their life, liberty and property seems blatantly wrong. The nearly half-century it took for the United States to admit error and make reparations to the remaining elderly survivors seems too little and much too late. It’s a no-brainer for me. Executive Order 9044 was a racist act ordered by a government and President who either were reacting to the fear and hysteria following an attack or callously manipulating a tragedy. Maybe a little of both.
But has our reaction been any different?
Today, in the post 9/11 world, an entire generation of lawyers earn their living as “national security” specialists and the military industrial complex described by President Eisenhower is overwhelmingly devoted to the same issue. Has this “national security generation” done any better than the “greatest generation” did in its reaction to an attack on the American homeland?
As easy it is to condemn the errors of 1941, it may appear similarly easy to condemn the errors in the wake of 9/11. But there is a difference for me. I know lawyers who wrestled with the legal issues in authorizing extraordinary rendition and I know a little bit about the pressures they were under. When I served as counsel to the Attorney General of the United States, the day-to-day pressures of trying to do the right thing amidst a flood of constant crises was enormous. I was out of government just before the 9/11 attacks, but I have a sense of what kind of pressure there was following an attack that killed thousands of American citizens on a beautiful autumn morning. Adding to that pressure would have been the fact that these thousands of dead were mostly civilians.
The lawyers in government had to make decisions because the government had to act. Some of those decisions were likely wrong. But some were right. And many of them were brave. The JAG Corps lawyers who blew the whistle on torture and refused to participate took extraordinarily courageous and – at the time – unpopular stands. They did what lawyers are supposed to do. The lawyers who tried to formulate just policy in a climate of terrible anger and anguish did what lawyers are supposed to do too. They tried to apply reason in the face of fear. The errors that they made, the wrongs they tried to right, the protections they tried to provide will be the evidence upon which history will judge us – the national security generation.