To mark the tenth anniversary of the September 11, 2001, terrorist attacks on the United States, there will be an array of special television and radio broadcasts, and national and local newspaper and magazine reports. In addition, many websites and other online sources have gathered historic material for the occasion, and a few new books have been issued to commemorate the tragic events of that day and the nation’s response to 9/11’s acts of terrorism.
It is certainly appropriate and fitting for the nation, and our leaders, to pause and remember those who lost their lives on that horrific and tragic day, when terrorists wrought death and havoc on America with their surprise attack.
In addition, this anniversary raises some key questions: What has 9/11’s lasting impact on America been? And, more particularly for those of us who are interested in legal issues, what has 9/11’s impact on American law been?
9/11’s General Influence on America: A Variety of Foreign Perspectives May Shed Some Light
With the thought that the foreign-based media might provide a more detached point of view on 9/11 than America’s media could, I have been following the retrospective analyses of 9/11 at its ten-year mark that have been offered by The Guardian (of London) and by Al Jazeera’s English edition. While these news organizations are offering their own views, they have primarily relied on the views of selected American commentators with unique credentials to discuss 9/11. (This is, perhaps, not surprising given that Americans have been so deeply affected by 9/11.) For example, The Guardian assembled a panel of eight commentators, most of whom are not well-known, but all of whom offered thoughtful insights about 9/11’s general impact, as they see it. Below, I have briefly encapsulated each of their viewpoints (with apologies for the inevitable lack of nuance in summarizing comments on such an emotionally and politically fraught topic):
Martin Kettle, a Guardian editor who lived in the USA for four years immediately before 9/11, feels that our country has returned to the political trend that pre-dated 9/11. He points out that the issues then were as they are now: taxes and the size of the federal government. Thus he finds that 9/11 had little lasting impact on American politics.
Andrea LeBlanc lost her husband on 9/11 and has been active on behalf of those 9/11 families who do not believe more war and violence to be the best response to terrorists. She feels that we have forgotten our founding principles of justice, our humanity, and the fact that violence begets more violence. In addition, she feels that we’ve forgotten the enormous human and economic tolls that our persistently violent responses toward terrorists are taking.
Hadley Freeman, a Guardian features writer who was in New York City when the attacks occurred, takes specific issue with right-winger Glenn Beck, who is promoting a “9/12 Project”—oblivious to the fact that no one who lived through 9/11 would want any part of 9/12, which in fact was another very bad day—particularly for New Yorkers, if not for virtually all Americans.
Wajahat Ali, a writer, attorney, and American Muslim, says that the nineteen 9/11 terrorists not only killed innocent people but also hijacked a religion. The result, he says, was to provoke unnecessary wars, and to create still unresolved and uncalled-for problems for all peace-loving Muslims.
Michael Ratner, an attorney and the head of both a non-profit constitutional ligation center in New York and a European human rights center, believes that Bush’s wars against terrorists have resulted in a legacy of lost liberty for Americans—who, Ratner contends, unfortunately, for the most part do not seem to care about preserving their freedoms.
Peter Preston, a former Guardian editor and now a columnist, finds little changed by 9/11, except that a once great nation has continued its grind toward failure because of conservative thinking. Such thinking, Preston argues, has created everything from the hodgepodge of bureaucratic agencies that make up the Department of Homeland Security to a nation that irrationally rejects science as a basis for decision making.
Carie Lemack lost her mother on 9/11 and was active on behalf of the 9/11 families who demanded that the 9/11 commission study the tragedy, and implement their recommendations. She finds little has changed because of 9/11, and so she has tried to make sure that we do not have another such attack.
Paul Pillar, a former senior CIA counterterrorist officer and now a professor at Georgetown University, notes that notwithstanding all the reorganization of the intelligence community—which was blamed for the attacks despite its remarkable prescience in predicting a 9/11-type attack—any open society like ours remains vulnerable to such attacks, and while there have been marginal fixes, a major terrorist attack still may happen again.
These highly abbreviated summaries of the Guardian’s panel do not do the panelists justice, but they do make the point that views about the impact of 9/11 on America vary widely. Still, there is a common threat that ought to be more widely recognized, and it relates to American law.
When I checked Al Jazeera, I found another set of views, such as those of Christ Shaffer, the head of a progressive public relations firm, who thinks post-9/11 Americans have become “a harder people. Less forgiving. More on edge. No longer our brother’s keeper. More fanciful.” And MIT professor Noam Chomsky, who believes that we have become lawless in pursuit of our nation’s self interest since 9/11.
In short, describing the effect that 9/11 had on America is a bit like the proverb of the blind person describing an elephant based on which part he has happened to touch. The counterpart in the case of 9/11, is commentators’ being affected by how they have personally been touched by the events.
Still, there is something of a consensus that 9/11 has had its most negative and lasting national impact on American law. Of course, the suffering of the families who tragically lost loved ones has been terrible and should never be minimized. But in looking for 9/11’s likely historic effect on our country as a whole, I share the view that it is American law that has most deeply experienced an ongoing negative impact from 9/11.
9/11’s Effects on American Law
In response to 9/11, Congress apparently felt that it could legislate away terrorism, so there was an outpouring of supposed legal solutions: endless legislative proposals and a rash of new statutes enacted or amended. During the past decade, literally thousands of new laws have been proposed, with several hundred adopted.
For example, by my count, not fewer than 134 new laws were added in response to 9/11 during the first fifteen months following the attacks in the 107th Congress (2001-2), according to a Library of Congress post-9/11 catalogue of such laws. Under the circumstances, this was hardly surprising. But lawmaking is not much of a solution to anything, it turns out.
What has been surprising is how, in the name of fighting terrorists, the Congress (both Democrats and Republicans) and the Executive Branch (both the Bush/Cheney and Obama/Biden administrations) have pushed for laws that reach beyond all previous existing limits of constitutional propriety.
Take, for instance, the so-called Patriot Act, which has recently been renewed. The ACLU summarized the core problems with the Act: “The Patriot Act vastly and unconstitutionally expanded the government’s authority to pry into people’s private lives with little or no evidence of wrongdoing. Years after its implementation, there is little evidence to demonstrate that the Patriot Act has made America more secure from terrorists. But there are many unfortunate examples that the government abused these authorities in ways that both violated the rights of innocent people and squandered precious security resources.”
More remarkable, still, has been the fact that many, if not most, Americans are not concerned about giving up the constitutional protections that place restrictions on law-enforcement techniques that invade their privacy when they perceive these actions as protecting them from terror attacks. Those who think this way should read Nothing to Hide: The False Tradeoff Between Privacy and Security by George Washington University law professor Daniel Solove, and they may have second thoughts.
Another aspect of the post-9/11 expansion of our laws beyond previous constitutional boundaries also requires Americans’ notice: The American government has been legitimizing and legalizing activities that most civilized nations define as “war crimes.” This redefinition, moreover, has been accomplished by blatant intellectual dishonesty—distortion of both the facts, and the law.
Edward Lazarus, a former U.S. Supreme Court law clerk, a former federal prosecutor, and my former co-columnist at FindLaw.com, reported as follows, in a September 15, 2006, column marking the fifth anniversary of 9/11: “One uncounted casualty of 9/11 has been the truth.” Among several examples, Lazarus mentioned, was the fact that notwithstanding all the evidence to the contrary, the Bush/Cheney Administration was still insisting “on the link between Saddam and al-Qaeda,” as justification for war in Iraq.
By the time Lazarus wrote his analysis, the 9/11 Commission had demolished that claim. Yet even now, at the tenth anniversary of the 9/11 attacks, Dick Cheney in his recently released memoir, In My Time, refuses to admit that he was wrong about the supposed Saddam/al-Qaeda link, and still claims that bogus link actually existed.
Apparently taking their cue from high administration officials, top lawyers in the Bush/Cheney Department of Justice wrote legal opinions that were riddled with misleading information. While they were later given a pass for their intellectual dishonesty, John Yoo and Jay Bybee authored a torture memo, typical of the problem, which was relied on to torture detainees, but that failed to acknowledge legal precedents that refuted their claims of authority to engage in “enhanced interrogation techniques” (read: torture). Sadly, distorting both the facts and the law to justify unjustifiable behavior may be a lasting legacy of 9/11.
A Tenth Anniversary Conclusion About 9/11’s Impact on American Law
Although there is little consensus about the general impact that 9/11 has had on the United States, I have found widespread agreement among attorneys, civil libertarians, historians, political scientists, countless former high government officials, and sitting judges that 9/11 has had a highly negative impact on American law. The good news is that many of the congressional actions that took effect after 9/11 have sunset provisions, so that they may one day expire. Other post-9/11 laws, unfortunately will remain on the books, ready for use—and abuse.
We must all hope that the permanent legacy of 9/11 is not lawmakers and government officials’ embracing the ends-justify-the-means approach that has occurred in dealing with terrorists so far, and continues even now, ten years after the fact. Should that be the case, and should this kind of approach become our standard, then we will have to conclude that this country has lost its conscience and its soul because of 9/11.
Having read countless books relating to 9/11, I can recommend only two, and one is free: The 9/11 Commission Report, along with the explanation of this undertaking by the co-chairs of the commission, Thomas Kean and Lee Hamilton: Without Precedent: The Inside Story of the 9/11 Commission. These are valuable works, and they contain the material from which we can all draw a well-considered assessment as to the true legacy of this deadly attack on America, ten years ago.