Post-9/11 Lawyers

AuthorTrevor C.W. Farrow
Pages167-193
[167]
Post-9/11 Lawyers
trevor C.w. Farrow*
Autumn in New York (September 2009)
Below: a breathtaking scope of destruction an d tragedy.
Above: an unexpected expanse of wide op en—free—blue sky.
All around: palpable emotions emanat ing from the diverse faces of fellow
onlookers.
What are we to make of all this?
INTRODUCTION
   from notes I made to myself during a visit to the World
Trade Center site in lower Manhattan. It was late on a clear September
Friday afternoon: al most eight years to the d ay after the terrorist attacks.
The city was busy as usual. The visitor centre was closed. Loca l pedes-
trian walkways were not. An unocial obser vation point was located
nearby in an adjacent building. While many people walked by without
moment, numerous others—me included—stood in silent amazement as
we looked out over the vast expanse of Ground Zero. Many dif‌ferent faces,
* I am gratefu l to Adam Dodek, Al lan Hutchinson, Stephen P itel, and Alice Woolley
for providing me wit h very helpful comments on a n early draft of th is chapter. I am
also gratef ul to Elena Losef for excellent re search assista nce.
    
[168]
presumably with many d if‌ferent backgrounds, stories, fam ilies, and cul-
tures of origin, and with many dif‌ferent emotional respon ses, all looked
on with a simila r palpable intensity.
Whether others there that day sh ared any of my thoughts, noted above,
I do not know. I assume they must have shared some; it would be virtu ally
impossible not to. Did they ask or answer my silent question in the sa me
way? Again, I do not know. For me, however, these were the observations
and the question that I could not avoid either that day or for the rest of my
visit. They are a lso the observations and t he question, to me, that ultim-
ately animate the topic of this chapter. Wh at I was thinking about th at day
amounts to the chal lenge that the recent history of that place has brought
into sharp relief. It is a chal lenge created for many stakeholders: families,
friends, politicia ns, policy makers, sec urity personnel, urba n planners
and dwellers, religious leaders and communities, a nd many others. And it
is a challenge created for lawyers: “ What are we to make of all thi s?” What
are lawyers—post-9/11 lawyers—to make of t he destruction and tragedy,
the unexpected feelings of (or desires for) freedom, and the pluralit y of
people directly or indirectly a f‌fected by that place? Framed through t he
lens of the theme of this book—being a law yer—“What are we to make of
all this? ” is the question that I take up in this chapter.
While there are ma ny ways to approach this question, I am going to
look at two. My f‌irst attempt at this question, largely from a descriptive
perspective, looks at how lawyers have engaged in the discussion of how
to properly balance individual and collective security issues with often
competing issues of civil rights and freedoms in light of the massive
destruction caused by, and anger and fear resu lting from, the events of
9/11. Balancing security and freedom is not a new exercise. The events
of 9/11, however, have signif‌icantly heightened the tensions that can exi st
between those two important values. As I stood at Ground Zero that day,
the juxtaposition of destr uction and space, of rubble below and clear blue
sky above, so clearly represented to me the juxtaposition of these often
competing values. Because of 9/11, that juxtaposition and balance have
been the focus of much thought and discu ssion in recent years. And there
is good reason to continue to work on and ref‌ine our thinking on this
question, on which I comment in the f‌irst par t of this chapter.
But in order to do so, we ultimately need to get at a more fundamental
question for lawyers, which existed pre- and now post-9/11. That is: how
are we to conceive of the role of the lawyer, in a rights-seeking, diverse so-
ciety in which we are fund amentally guided by robust notions of the public
interest, justice, substantive equality, and the rule of law? To me, that is

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