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August 09, 2019

As the rule of law erodes, ABA Forum points to perils when lawyers stay silent

For five years beginning in 1933, the Nazi regime in Germany systematically purged Jewish lawyers and jurists from the legal profession. For the most part, non-Jewish lawyers there remained silent as more than 4,000 of their Jewish colleagues lost their livelihoods.

A decade later in the United States, the administration of President Franklin Delano Roosevelt began rounding up as many as 120,000 Japanese Americans from the West Coast, sending them to internment camps throughout the country. For the most part, the country’s lawyers, including civil rights groups and the American Bar Association, remained silent.

These two World War II-era episodes of gross injustice intersected Thursday afternoon (Aug. 8) at the ABA Forum on the opening day of the 2019 ABA Annual Meeting in San Francisco. The program, titled “And Then They Came for Us: The Perils of Silence,” explored the fragility of the rule of law and why lawyers have an obligation to speak out when governments enact laws that violate human and civil rights.

The program’s title played off the name of the 2017 award-winning documentary, “And Then They Came for Us,” (watch trailer) which tells the story of Japanese Americans interned during World War II purportedly for fear of spying for Japan. The 50-minute film, shown at the program, also followed the case of Fred Korematsu, who was tried and convicted for refusing to be detained. In 1944 in a 6-3 decision, the U.S. Supreme Court upheld that decision.

But in 1983, a U.S. District Court judge in California reversed the earlier verdict based on new evidence in the case. Years later in upholding President Donald Trump’s travel ban in June 2018, the Supreme Court repudiated its 1944 decision.

After the documentary, three panelists explored the complicity of both non-Jewish lawyers in Germany in the 1930s and the established bar in the U.S. in the 1940s in fostering the civil and human rights violations. Their verdict: guilty in both instances.

San Francisco lawyer Dale Minami, the 2019 recipient of the ABA Medal, recounted how the ABA leadership, major civil rights groups and the progressive National Lawyers Guild remained silent during the Japanese internment. Minami represented Korematsu and two others in successfully challenging their detention in federal court.

“If the lawyers are going to be silent, then we are going to have a major problem,” Minami said of one of the lessons learned from Korematsu case.

The U.S. Supreme Court upheld the detention of Korematsu and effectively tens of thousands of others in 1944 based on the authority of President Roosevelt’s executive order rounding up Japanese Americans. The irony of the situation was not lost on the panelists. One of the advocates for rounding up these Americans was then California Attorney General Earl Warren, who forged a 9-0 verdict in the 1954 school desegregation case, Brown v. Board of Education, and who became what many consider as the most important chief justice of the U.S. Supreme Court in the last century.

Lorraine Bannai, a professor of law and director of the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, said the internment showed “there were lawyers who did not live up to their ethical obligations” although some did protest and quit government service. Prosecuting lawyers, she added, “suppressed, altered and destroyed evidence” that influenced a federal judge’s decision years later to re-open the case.

John Barrett, professor of law at St. John’s University in New York, a scholar of the Holocaust era and biographer of U.S. Supreme Court Justice Robert Jackson, outlined how the Nazis, starting in 1933, made incremental changes that undermined the rule of law in Germany. Nazi crimes that eventually led to the Holocaust, he said, “started in much smaller moments” and benefited, similar to the U.S. experience a decade later, when people were convinced it was worth “surrendering liberties for protection.”

This can happen, he added, when “powerful people who could have been voices (of reason) don’t speak loudly enough.”

The panelists noted that historically the purge of Jewish lawyers in Germany and the round-up of Japanese Americans in the U.S. followed the laws of that country and, in a formal sense, were consistent with the existing “rule of law.” But they quickly added, the rule of law is much more than a formality.

“The rule of law is a label for the forms that we use and the skills that we have to the way we pursue them,” Barrett said, noting the rule of law per se does not determine content. Rather he added the “choices of content – political, civic and moral -- matters.”

Added Minami about implementing a fair rule of law: “You can’t just do it through the law. The strongest forces are political.”

The ABA Annual Meeting continues through Tuesday (Aug. 13).