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There are some moments in life that simply take one’s breath away. The morning of Sept. 11 was one such moment. It had been a while since our country shed a common tear. It had been a while since we confronted a tragedy so emotional, unequivocal and heart-wrenchingly unifying. For one brief moment, our nation stood in place, stunned. Then, as is the nature of Americans, we collectively rolled up our sleeves and undertook the work at hand. Everyone had a part to play in our country’s new challenge. But one of the most important roles has been that performed by the legal profession. As the backbone of our system of justice, the organized bar rose to the occasion in a variety of ways, providing needed services both to average citizens and to our government leaders. Within days of the attacks, the ABA established a Web site to provide information and resources to lawyers and the public at large. I also appointed, with the Board of Governors’ approval, the Task Force on Terrorism and the Law that ultimately became the most important voice of the legal profession. The task force did what the ABA always does best: It assembled working groups of the finest intellectual talent available and dissected the intricate and somewhat arcane issues that the country now faced. Chaired by Robert Clifford, the task force became an invaluable resource, performing countless hours of research and investigation and providing guidance both formally and informally to members of Congress and the Bush administration on all major pieces of legislation related to homeland security. From supplying technical assistance to the managers of the victims’ compensation fund, to advising members of Congress on the nuances of the anti-terrorism legislation, to offering thoughtful leadership on issues such as immigration, surveillance and international law, the task force demonstrated how relevant and important the ABA is. Meanwhile, on another front, the ABA’s Young Lawyers Division (YLD) and the Federal Emergency Management Agency (FEMA) partnered to provide legal assistance to the victims of the attacks. By Sept. 19, a FEMA-YLD disaster legal services call center was set up in Stamford, Conn., with a toll-free call center staffed by volunteer lawyers. More than 2,000 calls were fielded from people who needed legal assistance to put their lives back together. And as a nation’s sympathy turned into a flood of donations, the ABA Section of Taxation developed a mass media campaign which helped consumers to identify legitimate charities worthy of their contributions and to explain the rules that needed to be followed to deduct those contributions. This public outreach to educate consumers involved a dedicated Web site as well as a significant communications campaign in every major media market in the country, and allowed millions of Americans to donate with confidence. LEGAL ADVICE TO RESERVISTS By December it became apparent that the military would be calling up reservists to a level not seen since the Gulf War. Just as we did back then, the organized bar stepped into action and provided assistance and support to the military’s legal assistance network. With lightning speed, the ABA developed a free, intensive training program for lawyers who volunteered to provide pro bono assistance to reservists in the premobilization stage. More than 8,000 lawyers from across the country participated in the training and were able to assist countless reservists who suddenly faced two simultaneous pressures: their duty to country and their obligations to family. The post-Sept. 11 world affected everyone in our legal profession, from the first-year associate to the highest court in the land. Justice Anthony Kennedy, for instance, was inspired to bring his passion for our country’s first principles to our nation’s young people. Accordingly, he developed a classroom program called “Dialogue on Freedom” and partnered with the ABA to bring the exercise to cities across the nation. To be sure, all of these activities required a tremendous effort on the part of the ABA’s leadership and staff. The association also committed significant financial resources. But, in a sense, this was the easy part. Most difficult, at least emotionally, was bringing to the fore issues we knew wouldn’t garner universal support and praise. By speaking out about due process and civil liberties, we knew we would be severely criticized in some quarters and misinterpreted in others. Clearly it was difficult publicly to raise concerns when the Department of Justice (DOJ) announced new regulations allowing for eavesdropping on conversations between lawyers and detainees (even those not charged with a crime) without any prior judicial approval on the questionable grounds of reasonable suspicion. But it was important that the legal profession be heard. These regulations are troubling and, ironically, completely unnecessary because of law enforcement’s long-recognized right to obtain probable- cause warrants which authorize the monitoring of conversations of detainees. The tried and true method of “probable cause” surveillance is allowed frequently and does not abrogate the constitutional rights of men, women and children who are presumed to be innocent. DOJ’s regulation not only undermines attorney-client privilege, it raises other, equally troubling questions. Does the Constitution really permit eavesdropping that has not been judicially approved? Will detainees really discuss anything of import with their attorneys having now been alerted that their conversations are being monitored? And if we nevertheless obtain some really good information, will the courts permit its use? A FOCUS ON DUE PROCESS The ABA also raised concerns about the original promulgation of the October military order creating military tribunals. The ABA, despite some ferocious negative press and lambasting from various political groups, held firm to its principle that due process was the most effective way to the truth. This was later affirmed by the Bush administration’s own subsequent filing of clarifying regulations issued in March. And today we face the troubling issue of American citizens, dangerous and amoral as they may be, locked away in permanent detention without access to lawyers or any semblance of due process. The ABA is taking a hard look at the “unlawful combatant” issue and intends to contribute to the debate. Overall, these have been extraordinary times and as lawyers, we face extraordinary challenges and responsibilities. But never has there been a better opportunity to participate in the public forum. Never has there been a better time to renew one’s sense of citizenship and public service. Never has there been a better time to be an American lawyer. Robert E. Hirshon, the 125th president of the ABA, is a shareholder in Portland, Maine’s Drummond Woodsum & MacMahon.

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