JURIST Guest Columnist Susan Herman of Brooklyn Law School says that the lingering fog of the 9/11 attacks has clouded our perceptions, blurred our legal categories, and perhaps also compromised our judgment…

For a month after September 11, 2001, I walked out of my house in Brooklyn and smelled the smoke. Even while the air was still acrid, people agreed that 9/11 had “changed everything.” In those early days, we all felt that to be true but we didn’t really know what it meant.

I have two thoughts to add to the chorus of fifth anniversary reflections about how “everything” has changed, focusing on law, my own field.

Categories and the law

Among the structures shaken by the ripples of 9/11 are the categories on which much of our law depends. For example, before 9/11, the law dichotomized rules for war and rules for peace. A threat to the safety of Americans was treated under one set of procedures if the threat was posed by a soldier of a foreign state and under quite another set of procedures if the threat came from an individual or group considered criminals. 9/11 left us struggling with the question of which paradigm is a better fit for treating suspected terrorists. That dichotomy poses a thorny choice post 9/11. Are we at war and should we therefore invoke the law of war with respect to matters like detention and interrogation of suspects, or procedures for deciding who actually is a terrorist? Or should we treat suspected terrorists as criminals in the civil courts or under the rules we would apply to our own military personnel in courts-martial?

Underlying our struggles with these difficult questions is the more profound question of whether our categories have failed, rendering this dichotomy and the choice it poses useless. How should we respond if the “war on terror” does not fit neatly into either of our preexisting categories, war or criminality? What deeper questions should we be asking if not the formal question of whether this is war or peace? What civil process is worth preserving and importing if we want to create a new, third category instead of trying to operate under our earlier dichotomy?

A second victim of this challenge to our previous axioms about the categories on which law is based has been the separation of powers/checks and balances among the branches of the federal government. The law (the Constitution in particular) set out roles for each branch of government in order to provide checks and balances with respect to important decisions about matters like detention, treatment of non-citizens, and rules governing surveillance. But the President argues that 9/11 has necessarily unsettled our expectations about the role of the other two branches, both as a matter of prerogative and as a consequence of our need for secrecy. The President acted unilaterally to change the rules governing surveillance, for example, on the theory that Congress could not, as a practical matter, be formally involved in deciding on the scope of permissible surveillance. Because the factual background of our actual surveillance activities, the administration argues, needs to remain secret, Congress cannot fulfill its legislative function because the process of legislation is inherently public, therefore threatening to our security, and therefore impossible. The administration also frequently argues that the courts should not be involved in checking executive decisions about matters like conduct of surveillance or extraordinary rendition, for similar reasons. Litigation, the administration says, is not feasible where “state secrets” would have to be revealed to the court and perhaps the parties during the course of the litigation. So the administration claims the right to act unilaterally, not just because of our underlying maxims about the prerogatives of the executive branch or our conclusions about whether we are at war, but because it is ostensibly not possible, as a practical matter, to include the other branches in decision-making without increasing the risk of harm.

The Supreme Court has fought to preserve the essential role of the courts in a remarkable series of cases — Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld. But the scope of those decisions, including the question of their relevance in cases where the administration argues that a need for secrecy precludes litigation, is far from clear. And Congress has barely begun to scrape the tip of the iceberg in considering what its own role should be with respect to setting rules for surveillance, or procedures for military commissions. Decisions about checks and balances, always difficult, have been made geometrically more difficult by questions about the extent to which earlier rules still apply.

A third example: It has become a commonplace that post 9/11 the law of search and seizure should be subject to reevaluation so we can make wise decisions about how we balance our concern for privacy with our desire to uncover terrorist activity. But the changes in our very approach to questions about the permissible scope of surveillance go beyond any possible recalibration of that balance. Before the fall of 2001, the law of surveillance created two distinct paths for search and seizure procedures, depending on whether or not the purpose of the surveillance was to gather foreign intelligence or to conduct a criminal investigation. The Patriot Act collapsed those categories to allow the administration easier access to surveillance aimed at doing both. The law of surveillance also distinguished searches and seizures within the United States from searches and seizures abroad. Although we do not know the details of the National Security Agency surveillance (secrecy again), it seems that, maybe due to advances in technology, that line may be considerably more fluid than we previously thought. Fourth Amendment law, furthermore, required the courts to distinguish reasonable expectations of privacy from unreasonable searches and seizures. The administration now argues that the courts are not competent to decide whether an expectation of privacy is reasonable under circumstances where, again, the courts cannot know what information is being acquired in the “war on terror” or how it is being used and so cannot evaluate costs and benefits.

The law of federalism provided that the federal and state/local governments operated within certain spheres, and under established hierarchies. But in Joint Terrorism Task Forces, federal officers may be interfering with state/local law in indeterminate ways. And in New York City, Chief of Police Ray Kelly has created his own international networks with which federal agents dare not interfere.

Perhaps most importantly, the distinction between legal responses based on fear and those based on reason seems blurred. Although there have certainly been other times in American history when fear has triumphed over reason, the immediacy of the threat of harm has never seemed greater. Some argue that politicians are fanning our fears for their own partisan purposes. Some acknowledge that they prefer laws that make them feel safe, regardless of whether the laws can actually be expected to have that effect. One person interviewed about airport security measures was told about a new x-ray technology — perhaps it was facial recognition software — that according to experts was not actually effective. He replied that he would prefer for such technology to be used for airport screening even if it was not effective because it made him f
eel safer. How can, or should, law operate in the fog of fear?

Processing 9/11

In light of the events of the last five years I also wonder how lawmakers can make decisions about law before culture has had an opportunity to work through how we actually feel about the issues law entails. At first, 9/11 was news 24/7 as we focused on immediate personal tragedies, Herculean clean up efforts, and early attempts to consider what we might do to prevent similar catastrophes. Very quickly, 9/11 began to become history. And within a few weeks or months, 9/11 became a fount of law. On September 18, Congress authorized the President to use force to counter terrorism, and on October 26, with remarkable unanimity and little debate, Congress passed the USA PATRIOT Act, which confidently described itself as “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” By then, 9/11 had also become politics.

It is only five years later that 9/11 has become national art. The first few wide distribution movies about the events of that day, about United Flight 93 and the fates of individual firefighters, appeared to a chorus of discussion about whether it was too soon to tell stories about 9/11. These films and the network TV series ABC planned on the road to 9/11 seem to have provoked more bitter and widespread controversy about their timing and content than the legislation of fall 2001 provoked in the fall of 2001.

It is remarkable that dramatic legislation about terrorism could be so speedy and so unanimous while artistic representations have been so slow to emerge and so hard fought. It is only quite recently that Congress has shown any inclination or ability to reexamine the legal responses of the fall of 2001, perhaps because enough time has passed that it is becoming possible to ask somewhat more dispassionate questions. The report of the 9/11 Commission and other histories are still quite recent. Can our legal responses be stable or reasoned when we are still so unsure about how to tell the story of 9/11 through history or art?

Maybe five years from now the fog will have lifted enough that we will be able to understand more about our immediate and long term responses to the challenges 9/11 poses to lawmakers. Maybe five years from now, we will have found our way to more reasoned and stable laws.

Susan Herman is Centennial Professor of Law at Brooklyn Law School and General Counsel of the American Civil Liberties Union
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