The Class of 9/11 Rethinks the Law

A former member of Alberto R. Gonzales’ White House staff recently described the “powerful sense of mission” he and other young conservative lawyers felt as they strained to find legalistic justifications for using extreme interrogation techniques against Guantanamo detainees after Sept. 11. The “torture memos,” from which the administration has backed off, were their response to the necessities of a post-9/11 world in which the executive branch had to be liberated from the legal constraints of anti-torture laws and international human rights conventions.

Their zeal feels completely foreign to me. But it was supposed to feel foreign: The world had changed, and they thought law needed to change with it. In their eyes, the terrorist attacks had created a paradigm shift -- one that rendered obsolete accepted wisdom regarding the scope of executive power and the balance between liberty and national security.

Whatever the merits of the lawyers’ arguments, there can be no doubt that the “9/11 effect” will exercise a grip on the law -- in particular, on constitutional law -- for some time to come. Indeed, a new generational perspective may be taking hold.

Every generation of judges, scholars and lawyers tries to bequeath to the next generation its understanding of legal traditions and necessities. It is inevitably only partly successful, because the next generation inexorably revises the traditions it receives and constructs new ones in light of its formative experiences.

Consider the generation of lawyers that counted among its leaders constitutional scholar Alexander Bickel. His views of the legal world were informed by two experiences -- both arising from the history that shaped the generation to which he belonged.

Bickel emigrated to the United States from Romania in 1939, when he was 14. Within five years, the Nazis had killed 60% of the Romanian Jews. The repellent ideology of “Mein Kampf” had destroyed the whole Jewish world in which Bickel had grown up.

The epochal clash between Franklin D. Roosevelt and the U.S. Supreme Court over New Deal legislation also unfolded in the 1930s. The court’s old guard had tried to squelch Roosevelt’s economic reforms in the name of freedom of contract. But in the eyes of Bickel, “freedom of contract” ideology had impeded recovery from the Great Depression, at great human cost.

Bickel derived a single overarching lesson from these experiences: He came to despise sweeping abstractions and ideologies as the engines of policymaking, whether legal or political. For the Bickelian generation, the proper purpose of law and of courts was not to definitively adjudicate right from wrong, or to impose the courts’ will. Instead, courts should simply mediate between contesting litigants to solve particular disputes. In many cases, this meant that they had to step aside and let legislatures and executives do their work.

Bickel would craft one of the most important constitutional law books ever written, “The Least Dangerous Branch,” in which he explained the virtues of a “passive” judiciary. Such a judiciary would decide even great issues -- such as race discrimination encountered in Brown vs. Board of Education -- in small steps.

No wonder that the 1960s generation, which sought sweeping, ideological change, dissented strongly from Bickel’s approach. For this generation of lawyers, Brown vs. Board of Education was a triumphant statement of legal morality.

If the courts were the least dangerous branch, this generation thought, they ought to get a lot more dangerous -- fast. These lawyers optimistically placed their faith in the power of courts and of law to right old wrongs and impose a new moral order on the nation. And in a host of Warren court decisions, they were not disappointed.

Ultimately, though, their optimism was challenged, even eclipsed, by Vietnam and Watergate. The skepticism these scandals spawned has been with many of us who grew up during that time -- and with lawyers, especially -- ever since.

I happened to catch “All the President’s Men” on cable last week, a movie that to someone of my vintage still feels deeply important and relevant. I came of political age in an era marked by dirty tricks and campaign slush funds, a secret war in Cambodia and Laos, COINTELPRO and other illegal domestic spying, enemies lists, shredded documents, widespread obstructions of justice and a slew of executive branch denials, all of which turned out to be false.

In my house, as in millions of others, the world was divided into heroes like Sam Ervin and villains like Richard Nixon. Bred into my bones was the idea that governments, even democratic ones, are capable of enormous wrongs and enormous lies -- and that subverting democratic governance requires neither an army nor particular genius, but simply the concentration of power into the hands of too many true believers.

These experiences created in me a presumptive skepticism toward claims of executive power and privilege; a wariness of government’s increasing power to surveil its own citizens; a belief in the possibility (and necessity) of an activist, principled, nonpartisan judiciary to rein in executive excesses, among other things.

For the current generation of young lawyers, Vietnam and Watergate are intellectual abstractions. It saw sexual, not political, scandal -- Justice Clarence Thomas’ confirmation hearings, with Anita Hill’s accusations, and the Paula Jones/Lewinsky revelations that led to President Clinton’s impeachment and acquittal.

What did this generation distrust and fear? The answer may be: nothing. Until Sept. 11. It grew up in peace and prosperity.

Sept. 11 shattered all that. How could members of this generation not be tempted to use the law to protect themselves and their country by any means necessary? Their experience testified to the damage terrorists can do to the nation -- but not to the damage the nation, and its presidents, can do to people in and outside our country.

It is too soon to know whether the events of Sept. 11 will have the power deeply and broadly to shape the next generation’s view of the law. But as the torture-memo incident brought starkly home, there is a new worldview in the making.