Legal responses to 9/11 still in flux

Legal system has been traumatized and transformed.

Just days after the terrorist attacks of Sept. 11, 2001, then-Supreme Court Justice Sandra Day O'Connor kept a long-standing commitment to help dedicate a new building at New York University School of Law.

She visited Ground Zero first, and told her NYU audience, "I am still tearful from that glimpse." O'Connor went on to predict that "the trauma that our nation suffered will and already has altered our way of life, and it will cause us to re-examine some of our laws pertaining to criminal surveillance, wiretapping, immigration, and so on.…As a result, we are likely to experience more restrictions on our personal freedom than has ever been the case in our country."

O'Connor got that right. Ten years later the American legal system, traumatized and transformed by Sept. 11, is still struggling to strike the balance between liberty and security, with both interests scoring victories and losses along the way. From detentions at Guantánamo Bay, Cuba, to the daily indignities of airport passenger searches, the terror attacks triggered "revolutionary change in our legal landscape," said Thomas McDonnell of Pace Law School, author of a 2009 book on the war on terror's legal impact.

"The difficulty has been articulating substantively what the restraints should be" on government post-Sept. 11 policies, said former Acting solicitor general Neal Katyal last week in his first interview since leaving the Obama administration. Regrettably, Katyal said, the job of setting guidelines has fallen to the courts because of sharp disagreements between the other branches. "One of the things I'm least happy about is the polarization of the debate."

Rancorous as the process has been, some protagonists in the battle say America's legal traditions, including its embrace of individual rights, have survived more or less intact 10 years on.

"The rule of law turned out to be more resilient than one might have expected," said Georgetown University Law Center professor David Cole, a sharp critic of post-Sept. 11 legal policies, especially during the George W. Bush administration. "In the midst of conflict, the U.S. Supreme Court stood up to the executive."

From the other side, John Yoo, a controversial architect of some of the Bush-era policies, also thinks the system has weathered the storm. "I do not think that the rule of law suffered because of 9/11, though the phrase means different things to different people." The University of California, Berkeley School of Law professor added, "We were confronted by a wholly new kind of enemy, and our legal system over time responded by adapting wartime principles to it."

O'Melveny & Myers partner Kenneth Wainstein, former head of the Bush Justice Department's National Security Division, said "we've lurched back and forth" in the past decade, but ultimately retooled the legal system to "bring the balance in sync with the threat we face today."

The debate continues

But that agreement does not mask the angry, finger-pointing debate that continues over the wisdom and constitutionality of the legal response to Sept. 11. After eight years of dissecting Bush's aggressive policies, the main target now is President Barack Obama, who ended some of what Bush started, but continued some as well.

Confronting Terror, a new book co-edited by Yoo and published in time for the 10th anniversary, contains essays attacking Obama policies from the right and left.

Yoo himself takes Obama to task for the "loss of focus on national security priorities." He urges Obama to "acknowledge his predecessor's role" in the demise of Osama bin Laden, asserting that Bush's policy of "coercive interrogation" produced intelligence that led to the capture.

In another essay, American Civil Liber­ties Union executive director Anthony Romero voices fear that Obama's continuation of some Bush policies and his broad assertions of executive power will "enshrine within the law policies and practices that support a dangerous notion that America is in a permanent state of emergency and that core liberties must be surrendered forever."

Georgetown's Cole also said, "I certainly would not suggest everything is fine. President Obama has come up short in a number of areas." Among other things, Cole cites the U.S. policy of targeted killings by drone aircraft.

"There has been a significant erosion of checks and balances in our system, and increasing assertion of executive power without oversight," said Sharon Bradford Franklin, senior counsel of the bipartisan Constitution Project. She points most recently to Obama's initiation of military action in Libya without congressional authorization.

"We often say the pendulum swings toward national security" in times of war, "and then it swings back," said Gregory Nojeim, senior counsel at the Center for Democracy & Technology. "This time it didn't swing back." Speaking at a Sept. 1 American Constitution Society conference, Nojeim spotlighted the increased use of "national security letters" by law enforcement to obtain third-party records about individuals without warrants.

Other flash points and shifts in the legal aftermath of Sept. 11 include:

• Torture and rendition of terror suspects, employed by the Bush administration, have been ostensibly stopped by the Obama administration. But Obama has endorsed the concept of indefinite detentions in some cases, said Pace's McDonnell, and the administration has argued for immunity from prosecution for officials involved in abuses.
• The Patriot Act, passed by Congress in the heat of post-Sept. 11 passions, has been tempered in reauthorizations to include new safeguards of civil liberties.
• Guantánamo detainees won due process rights from the Supreme Court. But Guantánamo is still open, despite Obama campaign promises, and hundreds of other prisoners are detained at Bagram Airfield in Afghanistan, where a federal appeals court ruled that habeas relief in U.S. courts is not available. And Obama has backed away from earlier plans to replace military commissions with trials in civilian courts.
• The state secrets privilege, invoked by the government to shield purported national security matters from litigation, has thrived under Obama, and the Supreme Court has sidestepped cases challenging its overuse. "There is too much secrecy in general," said Franklin of the Constitution Project. "Obviously, we have a need for some classification. But the tendency of government to overclassify, which predates 9/11 by decades, has really been exacerbated."
• The so-called "expectation of privacy," a key measure for judging the constitutionality of government intrusions, has weakened, if not vanished — the result not only of Sept. 11 but technological advances. Storing documents "in the cloud" instead of on hard drives, for example, will make it easier for law enforcement to obtain them without search warrants, said Nojeim of the Center for Democracy & Technology.

Privacy, in fact, may be the most persistent issue facing the legal system as the 10th anniversary of Sept. 11 nears.

Just last week the U.S. Court of Appeals for the 9th Circuit heard arguments over National Security Agency "dragnets" that sweep up information about the cellphone and Internet use of the general population.

High Court challenge

Even the Supreme Court, whose docket has been peppered with terrorism-related cases, will hear a privacy case this fall with echoes of Sept. 11.

Arguments are set on Nov. 8 in U.S. v. Jones, which asks whether prolonged GPS surveillance of a car by police, without a warrant, is a Fourth Amendment violation. The case was brought by a cocaine trafficker. But the Obama administration, in defending the practice, says a ruling against warrantless GPS surveillance would "seriously impede the government's ability to investigate leads and tips on drug trafficking, terrorism, and other crimes."

Will the courts and the legal system ever be free of disputes arising from the war on terror? Will the pendulum move?

The Constitution Project's Franklin hopes so. "Now that Osama bin Laden is dead, and there have been no further attacks at home, I would hope we can finally take the opportunity to reassess in a fundamental way all of these policies."

(Published by Law.com - September 5, 2011)