The Legacy of 9/11

Introduction

On September 11, 2001, a series of coordinated attacks were carried out at the World Trade Center in New York City and the Pentagon in Washington, DC, leaving approximately 3,000 dead in the immediate aftermath. The attacks were carried out by 19 hijackers who took control of four commercial airliners—two struck the World Trade Center, one struck the Pentagon, and a fourth crashed near Shanksville, Pennsylvania, after a struggle between the hijackers and the passengers. Al Qaeda fell under immediate suspicion in the days following the attacks. Although the organization initially denied involvement, al Qaeda founder Osama Bin Laden claimed responsibility for the attacks in 2004, citing US support of Israel, the presence of US troops in Saudi Arabia, and US foreign policy toward the Arab world as motives for the attacks.

The legal effects of the attacks have been far-reaching during the past decade. In an international military response, President George W. Bush launched the War on Terror, and the ongoing use of military force has been the source of deep controversy in the international community. The US also undertook a series of domestic legal actions intended to expand the ability of US intelligence and law enforcement authorities to prevent future attacks. The most notable of these efforts was the passage of the Patriot Act and the expansion of federal surveillance authority. These legislative and executive actions have been both touted as necessary for domestic safety and decried as resulting in severe civil rights abuses.

As a result of military actions and increased efforts to combat terrorism, the US has detained and interrogated suspected terrorists at the Guantanamo Bay military base in Cuba—sparking allegations of torture and political and legal conflicts over the status of detainees held at the facility. The potential prosecution of these detainees also created tension between civilian and military authorities, especially in regards to the creation of a new body of military commissions to handle the trials and the habeas corpus rights of the accused terrorists.

The War on Terror

In the wake of 9/11, Bush declared a "War on Terror," sparking US anti-terrorism efforts in the Philippines, Djibouti, Kenya, Ethiopia, Somalia, Lebanon, Yemen, Pakistan, and wars in Iraq and Afghanistan. On October 7, 2001, the first military action in the War on Terror was launched against the Taliban government of Afghanistan, which was believed to be harboring and supporting al Qaeda. This, according to Khan, could provide a justification for "India ... to wage war against Pakistan: Israel against Syria, Lebanon and Iran; the United Kingdom against the supporters of the Irish Republican Army; Spain against the backers of the Basque independence; Russia against the patrons of Chechnya." He also warned that the War on Terror would be "long and bloody," as US military efforts impacting civilian populations radicalize a new generation of extremists.

Shortly following the launch of military operations, several al Qaeda cells were captured in Afghanistan and the Taliban government was removed. Despite these initial gains, regional instability persisted. Free elections were held in 2004, electing then-interim president Hamid Karzai to a full term in office. Since this time, the Karzai government has attempted to deal with problems including corruption, discrimination against women, electoral malfeasance and other human rights abuses. In an analysis of the Afghan criminal justice system, JURIST contributor Sahr MuhammedAlly found that it contains "a lack of professional capacity and resources for judges, lawyers, police and prison officers; physical infrastructure devastated by years of war; and institutionalized corruption." Combat operations were still ongoing in Afghanistan on the tenth anniversary of September 11, 2001, although Bush's successor, President Barack Obama, marked 2014 as the date of withdrawal of combat troops.

The US has frequently been criticized for its actions in Afghanistan and elsewhere during the War on Terror, including various allegations of torture, mistreatment of prisoners, and other human rights abuses stemming from the Afghanistan War. Several American soldiers have been charged with unlawful killing of Afghani civilians. The American Civil Liberties Union (ACLU) sued former US Defense Secretary Donald Rumsfeld on behalf of eight former detainees who claimed they were tortured and abused by US personnel in Iraq and Afghanistan. However, the suit was ultimately dismissed.

The War on Terror, though a 13-nation coalition, did not enjoy universal international support. The ICC began investigating NATO troops due to allegations of war crimes in Afghanistan in 2009. Spain has consistently been critical of the War on Terror, arguing in 2005 that the US should be prosecuting suspected terrorists through civilian courts rather than military action.

Guantanamo Bay: Military Commissions and Enemy Combatants

During the course of the War on Terror, the US military detained hundreds of individuals as "enemy combatants"—a label the US government used to denote their legal status as unlawful combatants without protections under the Geneva Conventions. With military conflicts first in Afghanistan and later in Iraq, the number of persons captured inside and outside of combat zones with alleged links to terrorist organizations, particularly al-Qaeda, increased dramatically. Detainees were first transferred in January 2002 to the military detention center at Guantanamo Bay, Cuba.

Initially, the Department of Defense sought to try detainees as war criminals through military commissions as opposed to the courts-martial mandated under the arguing the military commissions lacked jurisdiction and violated the Geneva Conventions. In August 2005, Commission Order No. 1 [PDF] revised and delineated commission procedures, and later that year Congress passed the Detainee Treatment Act of 2005, which placed limitations on the jurisdiction of federal courts in reviewing the military commissions. In June 2006, however, the US Supreme Court ruled in Hamdan v. Rumsfeld that the government lacked the authority to establish the commissions because they failed to comply with Article 36 of the UMCJ by unjustifiably deviated from the rules for courts-martial. The court also found that the commissions failed to comply with Article 3 of the Geneva Conventions.

Congress responded to the court's decision in Hamdan by quickly passing the Military Commissions Act of 2006 (MCA), which established the current military commissions system and removed jurisdiction from every "court, justice, or judge ... to hear or consider an application for writ of habeas corpus filed by ... an alien ... detained as an enemy combatant." In Boumediene v. Bush, the US Supreme Court overturned MCA provisions stripping federal courts of habeas corpus jurisdiction, finding that detainees at Guantanamo must have habeas corpus rights under the US Constitution. In October 2008, the US District Court for the District of Columbia adopted the definition of enemy combatant provided in a 2004 Order Establishing Combatant Status Review Tribunal [PDF], meaning detainees must have directly supported hostilities against the US or its allies. Finally, in March 2009, the US Department of Justice (DOJ) dropped the term "enemy combatant" from its legal lexicon and established a new criterion for detention that "does not rely on the President's authority as Commander-in-Chief independent of Congress's specific authorization" under the Authorization for the Use of Military Force passed by Congress in September 2001.

However, conflict over the legal status of detainees abroad continues. In May 2010, the US Court of Appeals for the District of Columbia Circuit ruled that Boumediene only applied to detainees being held at Guantanamo and that detainees held at Bagram Air Force Base in Afghanistan cannot bring habeas corpus challenges in federal courts.

Guantanamo Bay: Attempted Closure

President Obama advocated for the closure of the Guantanamo Bay detention facility and civilian trials for the alleged 9/11 conspirators since his election in 2008. Despite initial progress and attempts to release or transfer detainees to third party countries, as of the tenth anniversary of September 11, 2001, the facility remained open, with over 170 detainees still being held there.

Soon after the US presidential election in November 2008, reports revealed that Obama's advisers had already begun working on a plan to hold criminal trials in federal courts for a large number of Guantanamo Bay detainees. In his first week in office in January 2009, Obama took steps to close the detention facility and directed military prosecutors to pursue a 120-day continuance in military commission proceedings against five alleged 9/11 co-conspirators, including Khalid Sheikh Mohammad (KSM). Later that week, Obama issued two executive orders to close Guantanamo within one year. The orders also instructed Secretary of Defense Robert Gates to immediately halt military commission proceedings pending a comprehensive review of all Guantanamo detentions under the supervision of the Attorney General.

Initial congressional efforts to oppose Obama's Guantanamo plan failed. In May 2009, the US Senate voted 54-45 to defeat an amendment to an appropriations bill that would have prevented Guantanamo detainees accused of involvement in 9/11 from being tried in federal courts. Obama defended his stance that detainees charged with violating American criminal law should be tried in federal courts "whenever feasible" by citing the convictions of Ramzi Yousef, Ali Saleh Kahlah al-Marri, and 9/11 conspirator Zacarias Moussaoui in civilian courts.

In September 2009, a US military judge granted the government's request for a 60-day continuance in the military trial of five accused 9/11 conspirators: KSM, Ramzi Bin Al Shibh, Walid Bin Attash, Ali Abdul-Aziz Ali and Mustafa Ahmed Al Hawsawi. Obama then signed the Department of Homeland Security Appropriations Act of 2010, allowing for Guantanamo detainees to be transferred to the US for prosecution and, among other provisions, requiring certain information about each transferred detainee to be disclosed to Congress, including costs, legal rationales and possible security risks.

Facing pressure to meet the administration's self-assigned January 2010 deadline, Attorney General Eric Holder officially announced in November 2009 that the government would pursue federal charges against KSM and the four other accused 9/11 conspirators detained at Guantanamo in the US District Court for the Southern District of New York.

However, the Obama administration missed the January 2010 deadline. Following the 2010 mid-term congressional election, Congress halted plans to close Guantanamo with both the US Senate and the House of Representatives giving final approval to a defense spending bill blocking Guantanamo detainees from being transferred to the US. In January 2011, the closure of Guantanamo was further delayed when Obama signed the Ike Skelton National Defense Authorization Act of 2011, which barred the use of funds to transfer detainees into the US. In April 2011, the Obama administration abandoned its plan to try the accused 9/11 conspirators in federal courts as Holder announced that the defendants would be tried before a military commission.

JURIST Guest Columnist Jonathan Hafetz argued in April 2011 that the failure to close Guantanamo Bay is an unwelcome step in justifying arbitrary detention and torture:

The irony is that the United States is much further from closing Guantanamo now than it was after Obama's post-inaugural pledge.

Congress deserves much of the blame. On top of previous legislation obstructing detainee resettlement, Congress has now barred the use of military funds to bring detainees to trial in the United States. This measure not only ensured the demise of the administration's plan to prosecute KSM in federal court. It also signaled the degree to which a vital tool in fighting terrorism--criminal trials--could be sacrificed on the altar of political expediency. As Attorney General Eric Holder acknowledged in announcing the KSM-reversal, both America's security and values are best served by federal prosecutions of suspected terrorists.

Obama, however, bears responsibility as well. The administration did not lay the necessary political groundwork for the federal prosecution of KSM and his co-defendants, failing, for example, to enlist the key powerbrokers in New York, where the trial was to have taken place.

More generally, the president never capitalized on his post-election momentum to operationalize his promise to close Guantanamo. Instead, he created a multi-agency task force to conduct a year-long study of detainee cases. Without effective leadership from the White House, a fierce backlash filled the political vacuum. Before long, the tide had turned, and what had once been a political challenge became a political impossibility.

However, JURIST Guest Columnist Andrew Puglia Levy, an attorney in Washington, DC, who served in the US Department of Homeland Security from 2006 to 2009, argued in June 2009 that there are significant risks to bringing some Guantanamo detainees to the US for trial because the Obama administration's legal options for holding them here are limited and problematic:
Although trying detainees in Article III courts is President Obama's prerogative, and although doing so may be the appropriate route for some cases, this strategy must acknowledge the real risk that alleged terrorists could be acquitted or could receive short sentences. ...

It is impossible to predict with certainty the result of any trial, let alone those involving such novel circumstances. Many of the detainees at Guantanamo Bay were captured in connection with combat overseas. For those whom the Administration decides it can try, their cases therefore come with the myriad challenges associated with turning battlefield encounters into successful federal cases, including the admissibility and availability of evidence and ensuring the protection of classified sources and methods.

Widespread allegations of detainee mistreatment as well as... released Justice Department memos, which set forth the legal justification for enhanced interrogation techniques, only make these cases more vulnerable. They provide traction for defense arguments that detainee statements were coerced, and they could undermine jurors' overall confidence in the government's case. ... Military commissions are one viable alternative to trials in federal court, in part because they can more easily incorporate procedural and evidentiary rules to lessen some of these challenges. ...

Despite the Obama administration's abandonment of its plan to try the 9/11 suspects in federal courts, the administration continued to push for other terror suspects to be tried in the US. As a result, a heated debate always surrounded the proper place to try terrorism suspects.

The Patriot Act and Civil Liberties

Under the auspices of combating terror, the Bush administration took many steps following 9/11 that according to some have curtailed civil rights. Chief among these was the passage of the USA Patriot Act of 2001, which was signed by Bush on October 26, 2001. The original legislation contained 10 titles authorizing the government to conduct a wide range of activities aimed at preventing future terror attacks.

Title I contained provisions expanding funding for counterterrorism operations, allowing for military assistance in situations involving weapons of mass destruction, and expanding the president's authority to seize the assets of any "foreign person, foreign organization, or foreign country" found to have participated in an attack on the US. Title II increased the authority of intelligence agencies to conduct surveillance against suspected terrorists. Title III dealt with bank rules, counterfeiting and smuggling, with the intention of preventing money laundering and the financing of terror organizations. Title IV enhanced security on the US-Canadian border, prevented people who had been involved with organizations endorsing acts of terrorism from entering the US and requiring the detention of any foreign citizen in the US who is engaged in activities threatening national security. Title V authorized the use of National Security Letters requiring communications companies to comply with requests for subscriber information and billing records. Title VI provided aid to the families of police and firefighters killed during the 9/11 attacks. Title VII addressed information sharing intended to counter terror activities taking place across more than one jurisdiction. Title VIII addressed attacks on public transit systems, expanded the reach of prohibitions on biological weapons and criminalized the harboring or concealment of a person suspected of committing an act of terrorism. Title IX gave the head of the CIA increased responsibility and authority over foreign intelligence information. Title X contained miscellaneous provisions dealing with charity fraud, providing assistance to first responders and authorizing funds to the Drug Enforcement Agency to conduct police training in south and central Asia. Many of these provisions were originally set to expire at the end of 2005. However, at the urging of the Bush administration, Congress passed legislation extending most of these expiring provisions, which was signed by Bush in early 2006, with some being extended yet again in 2011.

The Patriot Act has been the cause of significant controversy since its passage. Among its earliest and most vocal critics has been the American Civil Liberties Union (ACLU), which has brought several lawsuits challenging the constitutionality of the legislation. In 2004, a judge for the US District Court for the Southern District of New York ruled that the section of the Patriot Act allowing authorities to demand financial records from companies in terrorism investigations was unconstitutional. The court concluded that the section bars any effective judicial challenge because the government does not need to show a compelling need for the information, and the act does not provide process for challenges to police action.

One of the most significant cases brought by civil rights groups, however, was Holder v. Humanitarian Law Project. In 2005, a judge for the US District Court for the Central District of California ruled that the provision of the act forbidding assistance to known terrorist organizations was overly vague, in violation of a 2004 ruling on the same provision. The lawsuit was filed by the Center for Constitutional Rights, which expressed concern about the possibility of the act being used to punish humanitarian aid workers in Sri Lanka or Turkey. This case was eventually heard by the US Supreme Court in June 2010. The court ruled 6-3 to uphold the constitutionality of the material support ban. The court held that it did not violate plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment. In support of the Fifth Amendment argument, the plaintiffs had alleged that the statute's prohibition of particular types of material support, such as training and expert advice, was unconstitutionally vague. In rejecting this, the court found that the terms of the list were not like terms that had been struck down previously by the court for having subjective and ambiguous meanings. In rejecting the plaintiffs' First Amendment claims, the court found that the statute did not criminalize the mere association with groups designated as terrorist organizations, and that even though in some instances the law interfered with free speech, this was "carefully drawn" to cover "an urgent objective of the highest order," the combating of terrorism.

In 2005, the ACLU filed suit in the US District Court for the District of Connecticut against US Attorney General Alberto Gonzales and FBI Director Robert Mueller challenging the constitutionality of the government's use of National Security Letters, which allow the FBI to demand a wide range of personal records of library patrons, including library records and the identities of public computer users, without suspecting the library user of any wrongdoing and preventing anyone in receipt of the subpoena from ever stating that the FBI made the demand. The federal court lifted the gag order, only to be overturned on appeal in the US Court of Appeals for the Second Circuit. Later, US Supreme Court Justice Ruth Bader Ginsburg rejected an emergency appeal seeking to overturn appellate decision.

In March 2006, Bush signed legislation renewing the Patriot Act, making several sunsetting provisions permanent, extending two provisions until 2009, and incorporating a number of new rights protections. Bush approved two separate bills: the Patriot Act Improvement and Reauthorization Act of 2005 and the Patriot Act Additional Reauthorizing Amendments Act of 2006, a series of amendments to the renewal legislation reflecting a compromise agreement to incorporate more civil liberties protections. Prior to reauthorization, JURIST Guest Columnist Susan Herman argued that the statutory scheme suffered from a "dangerous lack of balance," rendering it unconstitutional. JURIST Guest Columnist Wendy Keefer, on the other hand, argued that the reauthorized legislation achieved balance between security and civil liberties as well as among the branches of government.

Some of these alleged civil rights abuses have been acknowledged by the government. In March 2007, the DOJ apologized for illegal activities after a critical report on Patriot Act investigative practices revealed that the FBI broke and misused laws in the process of obtaining personal information from telephone companies, internet service providers, banks, credit bureaus and other business personal records. FBI Director Robert Mueller said that FBI agents had improperly used so-called "exigent letters," under which communication carriers, relying on the FBI's representation of "emergency situations," are directed to provide personal information with the expectation that grand jury subpoenas would follow. Following these admissions, JURIST Contributing Editor David Crane called for Mueller's resignation.

In September 2007, a judge for the US District Court for the District of Oregon ruled that two provisions of the act dealing with physical search and electronic eavesdropping were unconstitutional. Brandon Mayfield, an Oregon attorney, was arrested and detained for two weeks in May 2004 after the FBI mistakenly concluded that his fingerprints matched those found on a bag containing detonators used in the 2004 Madrid train bombings. Mayfield challenged the provisions which amended the Foreign Intelligence Surveillance Act and allowed investigators to search his home and office. The judge held that the search had violated Mayfield's Fourth Amendment rights against unreasonable search and seizure.

In May 2011, President Obama signed a four-year extension of the Patriot Act. The bill passed the US Senate 72-23, and shortly after passed the US House of Representatives by a vote of 250-153. Controversial provisions renewed include those allowing the government to use roving wiretaps on multiple carriers and electronic devices and allowing the government to gain access to certain records relevant to its investigations. The "lone wolf" provision enables investigators to get warrants to conduct surveillance over targets not connected to any particular terrorist group.


JURIST Calls for Commentary
Timeline

5/26/11: Obama signed four-year extension of the Patriot Act

5/2/11: US forces killed Osama Bin Laden in a firefight in Pakistan

4/4/11: Holder announced 9/11 conspirators to face military trials

1/9/11: Obama signed bill barring transfer of Guantanamo detainees to US for trial

12/22/10: Congress approved bill preventing US trial of Guantanamo detainees

8/16/10: US Senator introduced Guantanamo habeas corpus bill

6/21/10: Supreme Court upheld law criminalizing material support for terror organizations against First Amendment challenge

11/13/09: Holder announced federal trials for accused 9/11 conspirators

11/06/09: US Senate defeated proposal to prevent federal prosecution of 9/11 suspects

 ...[more]

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