FLORIDA SUPREME COURT Justice Major Harding, right, recently presented Stetson law student Steve Morgan, left, with a $1,000 award and traveling trophy for his essay on legal professionalism in the aftermath of the September 11 attacks, which won The Florida Bar’s Standing Committee on Professionalism’s Second Annual Essay Contest. Morgan’s paper, “Professionalism in Times of National Crisis,” focused on the legal ramifications of the September 11 attacks. “It is a ‘call to arms’ for the legal profession,” Morgan said. “I hoped to raise the consciousness of my colleagues as to the extent of our involvement in this new war, and the need for new ways of thinking about our profession if we are to help our nation win.” Pictured with their father from the left are his daughters Katie Morgan and Jennifer Kimberger, who is a 2002 Stetson law graduate.
By Steven C. Morgan
Stetson College of Law
The taped broadcasts of NYPD emergency radio frequencies on September 11, 2001, brought home a poignant reminder of the requirement for professionalism in times of crisis. The initial confusion was apparent as radio dispatchers attempted to establish the positions and locations of various responding units. The radio voices of emergency units of every description were apparent, from robbery detail to fire support units, marine units, mobile command posts, and port police. A captain with Rescue 2 located on Broadway and Vessy Street with 18 men reported he had established a command post. Another voice calmly broke through the chaos to request buses for transport of walking wounded. An anonymous voice reported that the West Tower was being evacuated. Shortly after that report, all uncommitted units were ordered to report to a command post at Broadway and Vessy. Another unit calmly reported having to move a triage center since the West Tower was being evacuated and there was a nearby gas leak. A chilling transmission broke the air as a fireman warned of numerous bodies and debris falling from the towers. Confusion and destruction were everywhere, yet in that confusing jumble of voices, small groups of men and women were responding, doing their jobs, saving thousands of lives while risking their own. They each acted as professionals do in a crisis, methodically doing the tasks they were trained to do as their commanders built the command and control infrastructure required for responding to the unthinkable.1
It was their training and discipline, the cornerstones of any profession, that got these emergency professionals through the ordeal, and ultimately helped save thousands of lives. While this tragic lesson is yet to be fully understood, it can be appreciated and perhaps used to good effect by other professions as this nation continues to cope with the aftermath of September 11.
In times of crisis, professionals must rise to the challenge and provide that spark of leadership that will mean the difference between success and failure. This has been shown throughout history, but how does a professional know what to do in time of crisis? Most would probably tell you it is primarily a matter of training and discipline that will determine how one will react under stress. While moments of such utter confusion as the September 11 attack are few and far between, the fundamentals of training and self-discipline served as a basis for the emergency professionals’ response. It was obvious that when the crisis arose, the habits and routine were so ingrained as to be almost automatic. Training kicked in and carried them through where otherwise they might have mentally shut down in shock and confusion.
The profession of law is currently at the forefront of many battles yet to be fought in our nation’s war on terror. As legal professionals, we must display the same degree of professionalism and duty that was so valiantly displayed that fateful day. Our own training and discipline will be an essential key to the success or failure of this war in so many different ways. Already we have seen the battle lines drawn over such readily apparent legal issues as the implications and impact of the newly passed domestic security measures and the use of military tribunals.2 However, these critical issues are merely the tip of the iceberg. Consider the following challenge a member of our profession recently faced.
Early in our nation’s counterattack against the Al-Qa’ida in Afghanistan, a small group of senior staff officers, in a darkened United States Central Command (USCENTCOM) operations room, studied real-time photo surveillance from a “ Predator ” drone aircraft. The drone had located and identified the personal vehicle of a known Al-Qa’ida terrorist, bin Laden’s second in command, Mullah Omar. This technological marvel safely and quickly allowed USCENTCOM to target a key enemy leader, yet the effort quickly went awry. A military attorney’s opinion concerning the rules of engagement and Law of War persuaded the commander not to attack the Mullah’s vehicle convoy.3 For several agonizing minutes, the staff watched as one of the main figures responsible for the deaths of thousands of U.S. citizens was allowed to drive away to live and fight again. Today, months later, that very decision has led several hundred Marines and Special Operations personnel to undertake an extremely dangerous manhunt for the same Mullah.
I am not willing to second-guess the opinion of the USCENTCOM attorney, especially since attacking the Mullah was the military commander’s ultimate decision to make. Rather, I use this example to highlight the need for training in our profession that must face up to the new realities of modern warfare and terrorism. Needless to say, it was an interesting twist to see the attorney face the wrath of a reportedly furious Secretary of Defense.4 Normally it is a rare thing indeed for such split-second legal decisions to be required of an attorney.
Effective training is the first sign of professionalism and often becomes the fallback position in a crisis. Our profession has done a commendable job of training lawyers for action in the courtrooms and boardrooms of America, but obviously, a new era has begun. Our current legal training, with its focus on precedent and hindsight, must somehow be adapted to assist in this new reality, where the battle is in real time and the consequences potentially monumental. The threat of weapons of mass destruction in the hands of lunatics and hardened terrorists must give us pause to reflect on what our role, as legal counselors, will be. It is time our profession fully addresses the need for “operational legal training.” Increasingly, lawyers will be called upon to provide real-time advice, with far-reaching legal, military, and political implications. Such advice must be made available to military and law enforcement on-scene commanders both at home and abroad. It is my opinion that our professionalism will be stretched to the limits under these circumstances, and without appropriate training, we cannot be successful in a future crisis.
We must be prepared to answer the call of this new legal environment where the cool contemplative nature of the law we now practice is replaced by the pressure of life and death decisions that can affect millions of lives in a single heartbeat. If the legal profession does not provide the guidance and the training to those who must execute the operational plans of tomorrow, if we do not educate and guide the police and government officials whose lives and careers are on the line, we cannot call ourselves professionals. Nor can we leave it to happenstance, the whim of the uninformed, or the clamor of the media. We cannot duck this issue and we must pursue the answers with vigor and speed! Otherwise, we may remain justifiably branded with the words of Alfred Tennyson when he wrote in his poem “Aylmers Field” — “Mastering the lawless science of our law. That codeless myriad of precedent, that wilderness of single instances.” 5
The second attribute of the professional that shone through the dust and chaos of September 11 was discipline, the discipline to follow orders in the face of danger, and to press on in the face of what appear to be insurmountable odds. The faith that your small part in the organization is but one link in a strong chain that will prevail when everyone performs his role as trained. Here, too, the legal profession may draw on vital lessons learned in our professional lives.
In this new legal environment, there will be many in our profession who will face hardship, perhaps even danger, as we come to grips with this new enemy. This enemy respects no law and obeys no code. At best, our enemy considers western ideals of law and order mere stumbling blocks in its path to self-destructive glory, at best a myopic and outdated system to be exploited and used for propaganda effect. Those legal professionals who oppose them will face intimidation and threats of the highest order for themselves and everyone involved in the prosecution. Every judge, every attorney, juror, bailiff, clerk, and court reporter will need to have the courage and strength to press on in the face of this danger.
Legal practitioners must also have faith in themselves and their fellow professionals in times of crisis. They must rely on the professionalism of hundreds of others to ensure not only the effectiveness of the process, but also, in this new environment of terror, the personal safety of everyone. We must also strive with every decision and action to remain true to our oath to uphold and defend the Constitution we hold so dear. To stray from that oath will hand the terrorist his objective as clearly as if he had toppled the government with a nuclear weapon. Faith in the legal system must be the hallmark of our profession. However, do not doubt that our trust will be sorely tested as we are forced to consider completely new legal dilemmas that, in the worst case, may involve the survival of our very form of government. Consider the following hypothetical:
A suspected terrorist is on trial in a federal court in Virginia. The defense counsel is a highly respected and knowledgeable practitioner with a wife and child residing in New York City. The FBI receives information from the National Security Agency that certain unnamed cohorts of the defendant have entered the country and are planning a deadly biological attack in New York City. This information is classified top secret. Disclosure could jeopardize the life of a well-placed informant high in the Al-Qu’ida network and worse, disclosure could alert the terrorists, possibly allowing them to evade capture. The FBI desires immediate access to the defendant for additional interrogations that may prove essential to the capture of the terrorists. However, the FBI is loath to divulge the details to the defense because it also knows that the family of defense counsel is under possible surveillance by the terrorists. Any hint that a breach of security has occurred could scare the at-large terrorists, costing the FBI the chance to prevent a disaster. How do we propose to handle such matters in our profession? Are the procedures in place to protect everyone involved, including the rights of the suspect, while at the same time helping prevent a disaster? I know my faith in the system would be sorely tested were it my family at risk and doubtless such conflicts of interest could become commonplace. Now is the time to answer these questions, not in the heat of the battle. Let us hope such a scenario never comes to pass, but our profession must be proactive if we are to be prepared when the crisis arises. The debate should not be solely among the talking heads of the media; it needs to be addressed in our professional journals and among our legal scholars as well.
Lastly, I would like to address the need for professionalism when it comes to the public perception of the legal community in a crisis. Sadly, the image of the ambulance-chasing lawyer seems to remain deeply embedded in the public mind. A willing media has perpetuated this image far too often, but not always without some willing accomplice in our profession. In a time of national crisis, are we to be perceived as trustworthy advisors with an eye on justice for our clients? Alternatively, will we come across as money-grubbing, media-grabbing opportunists, willing to accommodate any outrageous claim with little regard for the implications of our actions? Again, I defer to the actions of other professionals on September 11, 2001. There was no rush of fire and police to the scene of the disaster at the Twin Towers just to see who could garner the most media face time. There were no shameless attempts by our military members to earn medals nor by civilians to grab high paying overtime. Rather, the mission and the lives of the victims were first and foremost at all times, sometimes even to the detriment of the rescuers as they too became victims or suffered grievous harm in the aftermath of the attack.
How will the public remember our profession’s involvement in the war on terror in the years to come? Will we meet the lowest common denominator in a rush for tort actions? Will we all be branded with the same old ambulance-chaser label because of the actions of a few? On the other hand, will we show restraint, compassion, and the self-discipline needed to show the world we are a proud profession, one to be trusted and admired for our willingness to seek justice for the common good? Doubtless, this battle line has already begun to shape itself as the first lawsuits are filed. The various state bars can and should provide leadership and counsel for the membership at large and assistance to the public in the legal profession’s determination to provide justice as well as success in the coming fight against terror. We might well look to the actions of New York Mayor Rudolph Giuliani as an example of the honor and dignity that can follow when the public’s perception is one of honesty and hard work in the face of crisis.
In conclusion, I refer you to a recent business best seller, Who Moved My Cheese? 6 In this cautionary tale of change in modern business, the mouse that succeeded was the one who was prepared to change and adapt to new surroundings. The other two mice were left behind, wondering what had happened to their stable, simple lives. Our profession must be prepared for change as well. Dramatic change has been thrust upon us in no uncertain fashion. Will we be prepared for this new legal environment? Will we equip new law students and current members of the Bar with the tools and guidance to fight the war on terror? Will we be professionals when it is hard to do so either financially or as a matter of professional ethics? It is our choice, and when the next crisis arises, we might consider the immortal words of Rudyard Kipling in his poem “If”:
“If you can keep your head when all about you Are losing theirs and blaming it on you; If you can trust yourself when all men doubt you, But make allowance for their doubting too; If you can wait and not be tired by waiting, Or, being lied about, don’t deal in lies, Or being hated, don’t give way to hating, And yet don’t look too good, nor talk too wise. If you can talk with crowds and keep your virtue, Or walk with Kings — nor lose the common touch; If neither foes nor loving friends can hurt you, If all men count with you, but none too much; If you can fill the unforgiving minute With sixty seconds’ worth of distance run — Yours is the Earth and everything that’s in it — And — which is more — you’ll be a Man, my son!7
1 www.Live365, “World Trade Center FDNY NYPD Scanner Radio Replay,” 09/11/01
2 Public Law 107-108 USA Patriot Act Dec 28, 2001 (Lexis L. Publg. U.S.C.S. 2001)
3 Seymour M. Hersh, Kings Ransom: How vulnerable are the Saudi royals?, The New Yorker, Oct. 22, 2001.
5 Alfred Lord Tennyson, “Aylmers Field,” (1864).
6 Spencer Johnson, Who Moved My Cheese?,G.P Putnam Sons, N.Y., (1998).
7 Rudyard Kipling, “If,” st. 1 and 4, Rewards and Fairies (1910).