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Make no mistake about it. I want to support my government — my country — in the wake of last week’s horrific terrorist attacks. But like many, I feel a sense of unease that transcends the fear that my loved ones or I will suddenly perish in a terrorist attack. I fear for my country in a more fundamental way. Already CNN, MSNBC and the major networks are trying to write a prime-time script for a story that does not follow any known plot line, and does not have any stock ending. Already, we have been treated to chapter one, “America Under Attack,” and chapter two, “America United,” as if the incredibly complex tangle of emotions this nation — and indeed any one individual — feels about these horrible events can be neatly summarized into segments of a TV miniseries. I fear for my country, not so much because of what terrorists may do to us, but because of what we may do to ourselves. I fear for my country because many of my countrymen trade in platitudes, and seem incapable of the complex thought that is a competent attorney’s stock in trade: the ability to draw distinctions, to challenge fundamental assumptions and to understand an opponent’s motivations. I fear for my country because so many of my countrymen want simple, unambiguous answers free of the “lawyer talk” that clouds the issues, but in fact reflects the underlying complexity of the Constitution and world politics. I fear for my country because we forget our history so quickly. I fear for my country because even William O. Douglas voted with the majority in Korematsu v. United States. I fear for my country because, in this vague undeclared war against terrorism, we might destroy the very thing we are trying to save: a free and open democratic society grounded in constitutional principles. Lawyers are on the front lines of this domestic struggle. If our government, bowing to public pressure, seeks to drastically curb civil liberties in conducting this new “war,” it will be lawyers who fight back. This battle, unlike the search-and-destroy missions for terrorists, will not be popular. But, of course, it is most necessary to defend civil liberties when it is most unpopular to do so. I suspect that the lawyers who challenge our government’s tactics in this war on terrorism will be branded unpatriotic or worse. But that is the true patriot’s dilemma: whether to defend the Constitution, and the principles it embodies, or to forsake them in pursuit of some greater (albeit transitory) “good” our government has defined. This unholy war will test the limits of our constitutional system under circumstances the Founding Fathers could not have imagined. The doctrine of “original intent” will be meaningless in this debate. The Founders could not have imagined a world with quarter-mile high skyscrapers housing entire Colonial cities that are threatened by thousands of potential bombs floating through the sky each day. But, regardless of the context — and no matter how foreign that context is to the world the Founding Fathers inhabited — history tends to look kindly on those who champion the Constitution in times of crisis. This crisis is unlikely to prove the exception. Bill Hancock is a San Francisco appellate lawyer.

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