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In Pursuit of Justice
“Justice, Justice Shalt Thou Pursue.” (Deuteronomy 16.20) This was the theme of an address by Seth P. Waxman, the former solicitor general of the United States, whom I had the honor to introduce at a recent event. As Waxman explained, pursuing “justice” is not to be confused with pursuing the “law.” This is not to say that law is necessarily hostile to justice, for that is surely not the case. Rather, Waxman’s point was that there is a great deal of interstitial space in the law within which justice can be pursued. He discussed a few examples to illustrate his point, two of which are related below.
One example was Brown v. Bd. of Education, where the Supreme Court held that school segregation was unconstitutional and that desegregation had to proceed “with all deliberate speed.” That language has been roundly criticized by many. In its briefs, the NAACP had argued for desegregation to proceed “forthwith,” meaning rapidly. However, at Justice Frankfurter’s suggestion, Chief Justice Warren adopted the “all deliberate speech” requirement instead, which all nine justices supported.
From where did Frankfurter get the key language? According to Waxman, “all deliberate speed,” while perhaps having its roots in an Oliver Wendell Holmes decision, was actually a suggestion of the solicitor general. As he put it, the solicitor general’s office understood that the legally and logically pure or ideal form of relief (i.e., an immediate end to segregation) was, unfortunately, unrealistic and that the “all deliberate speed” requirement provided a pragmatic route to the “justice” sought in Brown. In other words, the solicitor general showed the court a way to avoid having the “perfect” defeat the “good” or, in this case, the “just.”
Waxman provided another wonderful example of the pursuit of justice, one that seems particularly appropriate in the aftermath of 9-11. The example was a 1999 decision of the Israeli Supreme Court, which considered whether Israel’s General Security Service (GSS), which investigates individuals suspected of committing crimes against the country’s security, was authorized to apply even modest physical pressure during the interrogation process.
The court began: “The State of Israel has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding. Terrorist organizations have established as their goal Israel’s annihilation. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these grounds do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas, public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy.”
Given this introduction, one would have expected the court to sanction the use of at least modest physical pressure during the interrogation process. To the contrary, the court concluded that the law did not authorize the GSS to use any form of physical pressure during interrogations. It closed its decision with this statement: “This decision opens with a description of the difficult reality in which Israel finds herself security wise. We shall conclude this judgment by re-addressing that harsh reality. We are aware that this decision does not ease dealing with that reality. This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.”
I trust that our own Supreme Court, and lower federal and state courts as well, will keep these sentiments in mind as they rule on difficult legal issues created by our nation’s response to 9-11.
Daniel Klau is an appellate lawyer at Wiggin & Dana.