Dinner Speech

_________

Stephen Breyer
Associate Justice
Supreme Court of the United States

__________

Summit of World Bar Leaders
sponsored by
The Association of the Bar of the City of New York,
The City of London Law Society,
The Paris Bar and
The Tokyo Bar

Harvard Club
New York, New York
November 10, 2001

Thank you for the invitation to speak this evening. I am grateful for the opportunity to be in New York. Being here helps me understand what New Yorkers have experienced in the last two months. Two weeks ago, I visited the site of the World Trade Center, where I, like you, experienced a range of emotions. I saw what the near worst of human nature can do. I was moved deeply by the memorials, the flowers, the letters, the teddy bears, the photographs, and the groups of relatives of victims moving through the smoke of the ruins to visit those shrines. I wanted to say to each policeman and fireman whom I saw thank you for doing what you have done and are doing. And when I saw the relief workers, the construction workers, the clearing and the resettling, I realized that they and we will re-create order out of devastation and chaos. The events of September 11 will continue to bring us together as we learn how to respond.

Being here at an event sponsored by the Bar Association of the City of New York is also an honor. This Association has always served both the profession and the public. It helped during the Civil Rights struggle. It helped during Viet Nam. It helped in the aftermath of TWA's flight 800 disaster. It is helping today, most recently by providing the services of nearly 2500 lawyers to help the victims of September 11. I understand that New York lawyers have opened three intake centers where they help small businesses and individuals overcome various legal problems including, for example, trusts, wills, powers of attorney and others. The Association is, as Roscoe Pound once said of the legal profession itself, characterized by a "spirit of public service." This meeting is also sponsored by the London, Paris, and Tokyo bars and includes representatives from bars around the world. The fact that they are here illustrates the growing legal interdependence of our societies. Throughout the world our profession stands for law, reason, and civilization - the very antitheses of the force and fanaticism we have just seen.

I had intended to speak at length about that growing legal interdependence. We all learn from it. Only recently, for example, Lord Woolf introduced a set of judicial reforms in Britain that draws from the French experience with expert witnesses and American experience with case management. We in turn will learn from British experience with those reforms. I shall leave this and similar subjects, however, for a later time and instead shall give a different speech. Just as the New York lawyers have been directly helping their New York neighbors so in your capacities as national and international lawyers you might wish to undertake certain national and international legal tasks as part of a long term effort to respond to September 11.

I turn to this topic for two reasons. First, as members of the legal profession, we all look for ways to help. The Association has already done so. I simply add, tentatively and suggestively, to the profession's agenda. Second, the public is not always aware of how lawyers can and do help in these circumstances. It believes lawyers are typically involved in contentious advocacy. That was most recently illustrated by a cartoon in the New York Times showing a group of trial lawyers parachuting into Afghanistan. The caption read "our most feared weapon." Lawyers, however, can work cooperatively, focusing on detail, and creatively finding ways to bring together those who would engage constructively in common tasks.

I shall list four areas where this kind of constructive legal work may prove helpful.

I shall initially mention an area that may sound dull and technical but will likely prove important to any long run effort to deal with the kind of international attack we have seen - building institutions that can respond effectively to a new world order. We built institutions nearly from scratch during World War II. And today we must either modify those institutions or build new ones so that we can better coordinate the work of agencies within the government and so that we can make better use of the expertise of those who work outside of government. Lawyers, including professional associations such as yours, can play a partial but important role in helping such efforts succeed.

That is because achieving coordination within the government, and among state and federal governments, let alone among nations, is far more difficult than many believe. The obstacles, in part, are legal. The President no longer has the authority to re-organize the federal government at the stroke of a pen. Nor are there many federal statutes that directly give the President authority that he could delegate to another person. Indeed few federal statutes give the President direct authority to tell government agencies to do anything. Instead they typically say "the Secretary shall . . . ," "the Agency shall . . . ," or "the Board shall . . . ," not "the President may . . . ."

Of course, the President, or someone with access to him, can tell, or suggest to, Presidential appointees what they should do. State officials, including Governors, will usually listen to the President and try to help. But Presidential time is limited; political constraints reserve use of his personal authority for priority matters; and the reality of coordination often consists of mundane details invisible to the White House. Hence, coordination is not something even a President can easily order. It is a function of long term institutional relationships, both within the federal government and within our federalist system. And designing those relationships so that they encourage cooperation calls for knowledge of law, administration, government and politics. What this means is that legal expertise and practical governmental experience is highly relevant.

Just as important is government's ability to draw upon the skills and knowledge of those outside government. In World War II the British Foreign Office employed Isaiah Berlin to write observations about the American political mood; the British code-breaking effort, the ULTRA Secret, relied on the work of mathematicians from Cambridge, Oxford, and Newham College; and the American intelligence agencies actively recruited lawyers to work on the Japanese encryption project, MAGIC. (Secretary of War Henry L. Stimson wrote that lawyers were "best qualified" for the job, having "experience with organizing and synthesizing numerous facts and complicated issues associated with major law cases.") In fact, Justice Powell, then an American intelligence officer, was assigned to work with the British on the ULTRA secret. Today we are aware of a similarly urgent need to harness the expertise of those outside the government who know about medicine, about psychology, about security, about terrorism, about communications, about religion, about foreign cultures - so that, as in World War II, we can bring the outside specialist's more expert knowledge to bear upon the practical problems of terrorism.

That need is particularly urgent because in many technical areas public distrust of government, reflected in diminished incentives for public sector careers (compared to private or academic sectors' diminished prestige, pay, working conditions) has led to a gradual exodus of many mid-level and higher-level officials who, two generations ago, might have made government a permanent career. Take the legal profession for example. At one top law school the percentage of graduates entering government (or equivalent) careers has fallen from nearly 15% to about 3% over the course of a generation.

This decline in the number of individuals willing to enter the public sector has coincided with an increase in the legal and institutional obstacles which create public/private or public/academic barriers. Consider the kinds of laws that can apply to those from academia or the private sector, who wish to help the government - where more than short-term participation or emergency advice is desired. They include: 1) anti-salary supplement laws, which mean the disappearance of what was once called the "dollar-a-year man;" 2) disclosure laws, which require complex calculations and public statement of every dollar earned or possessed by the individual, spouse, and minor children; 3) post-employment restrictions, which can forbid an individual who has once worked for the government from later working on any matter present in the government department during his government employment; 4) conflict-of-interest laws, which can prevent an individual from accepting even a lunch from a group interested in (and which perhaps itself can help by knowing about) the government work at issue; 5) advisory committee laws, which can make many of these other laws applicable to an outside expert who seeks to help the government part time; 6) sunshine laws, which can expose the outside expert to undesired public, perhaps politically-based, criticism; 7) security laws, which can keep from the expert the facts necessary to provide useful advice.

Requirements are complex, sometimes uncertain, often burdensome, frequently time-consuming, and not always consistent, as different Branches of government can impose different obligations upon the same individual. For example, the Secretary of Agriculture (some have claimed) may not be able to accept lunch from a group of farmers whom he wishes to address about farm policy, the relevant statute being somewhat unclear in this respect. Some advisory committee rules may impose too heavy a disclosure requirement in light of the committee's purposes and composition. Academic and private sector employees may be willing to sacrifice somewhat to help the government, but they are unlikely to want to pay too heavy a price - one, for example, that significantly limits their future career possibilities or substantially erodes their savings - in order to work for the Government in a mid-level or part-time position.

Hence, there is a task ahead that is typically legal - a task of facilitating. It does not involve sacrificing the important principles that underlie those laws. Rather it involves reconciling 1) the important need to bring outside expertise to bear upon our national problems and 2) the principles underlying the ethics and security related laws. It involves an understanding of the relevant institutions, government, academia, the private sector. It involves comprehensive review of the relevant rules and regulations and an ability to translate them into "plain english" so that those whose expertise is needed in government can understand the legal ramifications of public service. It involves focusing upon detail and modifying the rules, or unreasonable interpretations of them, where necessary to facilitate interchange - the kind of cooperative work across institutional boundaries - that a long term response to the attacks will demand. The Association has engaged in this kind of task before, drafting a Code of Ethics for the legislative and executive branches, responding to New York's fiscal crisis in the 70's by improving local finance law, and convening commissions to advance the national debate on federal campaign finance reform, drug law reform, and effective arms control (a committee in which the association's current president participated). It may wish to do so again.

I shall turn next to an important area where detailed, traditional legal work may help, namely that of civil liberties. Security needs escalate during wartime and potentially conflict with the desire to maintain personal freedom's peacetime limits. Constructive detailed legal work can be done to confine the potential conflict to areas where it is unavoidable.

This is not the first time that the United States has been forced to undertake such a balancing. Several examples from U. S. history, discussed in the Chief Justice's book about civil liberties in wartime, come to mind. Consider, on the one hand, the Civil War, and instances in which the conflict was serious. Abraham Lincoln suspended the Writ of Habeas Corpus, imprisoned elected legislators suspected of enemy sympathies, declared that those engaging in "any disloyal practice" would be subject to martial law, and had his Postmaster General ban five New York newspapers from the mails after a jury found they contained "vituperative criticism." Was the President right to restrict civil liberties so severely? Lincoln himself eloquently described the problem. As to habeas corpus, he asked, "Are all the laws but one to go unexecuted and the government itself to go to pieces lest that one be violated?" He added, "It has long been a grave question whether any Government not too strong for the liberties of its people can be strong enough to maintain its existence in great emergencies." The dilemma is clear.

On the other hand, we can contrast certain curtailments of civil liberties that took place during World War I. Congress, for example, enacted a statute that made it a crime to "advocate . . .forcible resistance to any law." Initially the Supreme Court unanimously upheld the conviction of Charles Schenck for printing leaflets urging resistance to the draft. But, when the Postmaster General banned from the mails a publication called The Masses because of four anti-capitalist cartoons, including one labeled "conscription" showing a figure grinding down figures symbolizing democracy, labor, and the family, Judge Learned Hand objected on the ground that the cartoon could not "be said to advocate" forcible "resistance to the draft." And when the Supreme Court affirmed a conviction based upon a pamphlet stating that "our entry into [the war] was determined by . . . J.P. Morgan's loans," Justices Holmes and Brandeis dissented.

Contrast as well the infamous instance during World War II when the government removed American citizens of Japanese descent from California and interned them in camps. The Supreme Court found the internment constitutional. The majority said that the military believed in early 1942 that the relocation was necessary, either to help protect the West Coast from Japanese military attack or to help protect the Japanese Americans from harm by their fellow citizens. The three dissenters, Justices Jackson, Murphy, and Rutledge, disagreed. They said that there was no justification as of 1942; and they added that, regardless, no one could reasonably claim that the internment was still necessary then, in 1944.

I agree with the dissenters and with Judge Hand, Justice Holmes and Justice Brandeis, and I suspect most of you do too, because I believe that these severe curtailments of wartime liberty were not necessary. I doubt that they were justified by any security need. By way of contrast the Civil War examples reflect greater security needs. I contrast these examples with the Civil War curtailments in order to suggest that one important legal task is to draft laws that simply avoid the civil liberties/security conflict.

Traditional legal skills, focusing upon detail, can help. They can seek precision in definitions, say of "terrorism" or "terrorist." They can examine the nature of the security threat and seek ways to tailor statutes so that they aim directly at that threat. They can focus upon the nature of any resulting civil liberties concern, asking whether that concern has practical importance or exists primarily in the realm of the theoretical. (Remember the Tennessee voter who voted against Barry Goldwater because he heard that Goldwater wanted to abolish TV. "No, it's TVA," a reporter told him. "Well, I'm not taking any chances."). They can suggest procedures designed to avoid the conflict, for example, through expedition of (rather than abolition of) judicial review. This kind of detail, -- definition, focus, tailoring, procedure, -- are grist for the lawyer's mill. However dull they may sound, in practice they can avoid the unnecessary conflict and in that way help to protect traditional civil liberties interests.

My third area shows that both the civil rights task and the institutional task have important international dimensions. We should expect to find many international cooperative efforts. Remember Justice Powell and the Ultra Secret. We can also learn much from experience abroad. After all many foreign nations, including Britain, France, and Japan, have had direct experience with terrorism, including bombs, nerve gas, and clandestine organizations. Foreign nations, too, have had to develop security techniques consistent with their own democratic traditions. And we have something to learn. Of course, foreign nations work within different legal systems and in different cultural environments. But still, the very factors that have made this meeting an international meeting suggest that those nations face similar problems. And those lawyers who understand the legal and cultural environments of both the United States and the foreign nation will best understand the details of the solutions reached in other nations and will contribute the most here.

Another, longer range, task is that of building effective international institutions. The Europeans, for example, have agreed to recognize a multi-national arrest warrant. Will they, will we, develop further formal arrangements in the area of international criminal law? If so, we shall face many questions, of jurisdiction, of institutional structure, of standards, of relationship to national institutions, including judicial institutions.

The current disagreement about the Rome Statute creating an international criminal court illustrates a few of the technical difficulties. The tribunal prosecutor can proceed against an individual only if the relevant national authorities are unwilling or unable to look into the matter; and an international appellate tribunal can review the prosecutor's decision to do so. Are these safeguards sufficient or do they leave the prosecutor with too much power? The tribunal has jurisdiction over "crimes against humanity" defined to include "torture," which, in turn, is defined to include the infliction of "severe . . . mental suffering" where part of a "policy" involving committing "multiple" acts "against any civilian population." Is this definition too broad?

These questions involve matters both of technical drafting and of policy. To what extent can the first of these, primarily a legal skill, help overcome disagreements about the second? I suspect it can help. And I mean to suggest that a lengthy continued effort to deal effectively with international terrorism will raise many such questions. Lawyers who know the field, who can find creative answers, who have become involved, will, of course, contribute effectively in that effort.

A final area where it is important to engage in constructive, detailed legal work concerns the compensation of victims. Obviously we want to avoid what happened in respect to asbestos, where vast numbers of cases filed in the courts, filled dockets across the nation, took twice as long as ordinary civil cases to resolve, often defied settlement, and too often resulted in too many receiving too little too late. In one instance 448 members of a class of 3,000 died before the class action was resolved. And some reports have suggested that only a surprisingly small portion of the funds received have gone to victims.

The challenge is to make certain that compensation is fair and speedy. Here, unlike asbestos, Congress seems willing to become involved. In fact, in the days following the September 11th attack, Congress passed the Air Transportation Safety and Stabilization Act, Title IV of which addresses victim compensation. The legislation directs the Attorney General to appoint a Special Master to administer a compensation program for individuals who were injured or whose family members were injured in the terrorist attacks. Individuals who participate in this scheme waive the right to proceed in any civil action to recover attack-related damages - including punitive damages. One can still easily imagine a range of difficult legal questions. How will statutory eligibility be verified? What is the appropriate level of compensation? Should the level differ depending, for example, upon the income of the victim and the number of dependents or should it be the same for all? Should the availability of alternative compensation be considered? What about receipt of charitable donations? How will disputes be resolved? The questions are legion. These kinds of questions have proved extraordinarily difficult to answer in the context of ordinary mass tort litigation. But here there seems a will to try to resolve them - in the interest of building an effective compensation system. Can this be done? Or will an idea of what would be "best" (which may differ depending upon one's point of view) stand in the way of developing a system that might prove reasonably "good?" That is a professional challenge.

Indeed, the four areas I have mentioned have in common the fact that they all raise professional challenges. They all grow out of the September 11 events, they all seem relevant to our response to those events, and they all ask lawyers to respond with the legal skills they best know how to exercise: an understanding of institutions, a focus upon detail, and an ability to work constructively with detail both to preserve competing principles and to achieve agreement that otherwise might not exist.

I mention those challenges to you this evening because of the unique circumstances that surround this conference. The international community has been shaken by the magnitude of the September 11th attacks, and New York has felt their impact the strongest. Our sense of security has been shaken, our freedom of movement reduced, and our faith in human kind compromised. Yet despite these terrible events, we have witnessed an outpouring of support as people from across the nation and across the globe have given blood, have volunteered by the thousands, sent donations and messages of support, donated food, and provided manual labor at Ground Zero. We, as citizens, are taking steps to rebuild our cities, to reorganize our government, and to reaffirm our values. Now, we as lawyers, must build institutions, open international dialogues, and create laws that respond to our changing needs. Our special legal and analytical skills provide us with a unique opportunity to contribute in a meaningful way - not only to overcome the events of the past but to prevent their repetition, not only to solve present problems, but to do so in a way that exemplifies and protects the democratic values that characterize our systems of law and which are now under attack. Those values are embedded in our laws' details where they are continuously practiced as part of our daily lives. And that makes all the difference. Your participation in this conference makes clear your own commitment to those values. And, as I said at the outset, I am privileged to have the opportunity to join you.