The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office. After the stunning failures of the preceding Administration, Obama’s inauguration in November 2008 was greeted with euphoria. Obama’s bearing, approach and outlook seemed to offer a “just in time” rescue for national security policies run aground. Now, as the day-to- day reality of governing sets in, it is increasingly clear that the nation will need every bit of the new President’s heralded thoughtfulness and calm. Obama seems an excellent example of Ernest Hemingway’s definition of courage as “grace under pressure.” Even without considering the economic debacle confronting the world and its impact on global markets, the national security concerns confronting the United States as the world’s leading power are daunting.
If, as de Tocqueville observed, everything in America eventually becomes the province of lawyers, it should not be surprising that the conduct of lawyers has become a salient aspect of the war on terror. While terrorists typically express contempt for the rule of law, lawyers in a democracy should know better. Unfortunately, crises sometimes push lawyers from their traditional roles as advocates and counselors into less auspicious roles as enablers of overreaching. The legal response to the attacks of September 11 has highlighted the ethical pressures imposed on lawyers in crisis situations. The contributors to this symposium focus on two important subjects: (1) the ethical issues triggered by the recommendations of government lawyers on treatment of detainees (the so-called “torture memos”), and (2) the debate over the ethics of the government’s placement of restrictions on civilian defense lawyers representing alleged terrorists in government-dominated fora such as military commissions. The torture memos represent a conflict between the lawyer’s role as advocate for a client’s position and the attorney’s role as advisor offering an accurate account of the law as it exists. Symposium contributors argue that lawyers in the Office of Legal Counsel of the Department of Justice are advisors charged with the latter role. They argue further that these attorneys failed in that obligation.
In Grutter v. Bollinger, law student amici provided significant support for the University of Michigan’s use of race as a factor in law school admissions. Although Grutter did not specifically refer to any of the briefs submitted by law students, the Court’s reliance on diversity interests echoed the students’ emphasis on the educational benefits of a diverse classroom and the instrumental benefits of a diverse legal profession. On the whole, the Court’s analysis in Grutter broke relatively little new ground, since it closely followed Justice Powell’s endorsement of diversity as a compelling interest in Regents of the University of California v. Bakke twenty-five years earlier.
