How Has 9/11 Affected American Constitutional Law? The Three Intersecting Cross-Currents that Have Affected Liberty, Security, and Government Accountability

By EDWARD LAZARUS

Friday, Sep. 15, 2006

The fifth anniversary of 9/11 has prompted intense reflection on America's response to this murderous attack, including its invasions of Afghanistan and Iraq, and on the nation's current state of preparedness when it comes to pre-empting future terrorist conspiracies.

Another topic worthy of consideration at this sober moment is the effect of 9/11 on American law and, in particular, on constitutional law, which is the spinal cord for the values and governmental principles by which we measure our exceptionalism as a nation.

On this issue, it must be said that the jury is still out. Many more anniversaries are likely to pass before we will know clearly whether the crashing of the Twin Towers ultimately caused lasting damage to the nation's legal fabric or, instead, reinforced and reaffirmed the best of our constitutional ideals.

We are now engaged in a bitter debate over the constitutional framework within which the struggle against global terrorism must be fought. And that debate, as I will explain, encompasses at least three independent cross-currents.

The Three Crucial Cross-Currents That Define the Post-9/11 Constitutional Debate

First, there is a reasonably familiar tug-of-war between civil libertarians and post-9/11 "terror-hawks" over how much individual liberty and privacy ought to be sacrificed in order to better safeguard the country from future attacks.

Second, there is a somewhat less familiar dispute over the power of the President to act independently from, or even override, the views of Congress in taking countermeasures against terrorist threats.

And, third, there is a frequently ignored battle over how much the public is entitled to know about how the so-called war against terror is being conducted, so that the electorate can hold its public officials accountable for the policies they have chosen to pursue.

These three issues are profoundly interrelated. The question of to what extent we should sacrifice a measure of civil liberty cannot be separated from the question of who gets to determine how much liberty is to be sacrificed. Nor can either of these questions be separated from the question of how much the public will be told about the sacrifices that are being made - presumably on the public's behalf.

This interplay makes assessing 9/11's effect on constitutional law impossible at the moment. It is just too soon to tell whether we will strike the right balance between security and liberty but also, at a deeper level, whether we will even have the information to even know what trade-offs our government is making in this regard, and to know whether those trade-offs are being made by Congress or by less accountable officials in the Executive Branch.

Must Constitutional Liberty Contract In Response to Heightened Security Concerns?

I have more sympathy than most progressives to Judge Richard Posner's argument that the concept of constitutional liberty is not static, but instead must be responsive to heightened threats to national security. Defending a free society may at times require the sacrifice of some freedom, commensurate with the nature of the threat.

Of course, the devil is in the details - details as to how much freedom one is talking about, and whether the sacrifice is fairly apportioned (rather than targeted at particular groups). But as a general matter, I put myself in the category of people who view 9/11 as a watershed event announcing a new, serious, and intractable threat to the American way of life - an event to which we must respond by sacrificing at least some of the civil liberties we previously enjoyed.

A curse of the Twenty-First Century promises to be the ability of an ever smaller number of people to kill or maim an ever larger number of people, through the ingenious use of explosives and toxins of ever-proliferating kinds. This ability, moreover, will be matched by the continued growth of extremist anti-democratic, anti-western groups with few, if any, qualms about using such tactics against far-flung civilian targets, especially in the face of semi-permanent military helplessness in traditional terms.

Blunting this threat has already required, and will continue to require, innovative investigative tactics -- some of which will surely involve an uncomfortable degree of government scrutiny of individuals and groups. To be sure, the Constitution places limits on how far the government can go in this direction. But the Supreme Court has interpreted the Constitution to require a balance - under which rights can sometimes be infringed when a government interest is sufficiently compelling - and it is a balance that must now be struck in the face of a particularly insidious and difficult to detect set of threats to our way of life.

The Issue That Has Overshadowed the Liberty/Security Trade-off: Presidential Power

Unfortunately, despite the terrible toll of 9/11, it has been impossible to focus clearly on this vitally important issue: the issue of how best to combat the threat of terrorism, consistent with our constitutional commitment to individual rights. That's largely because the Bush Administration has confused the discussion with its insistence that the President - and only the President - can have final authority over what tactics can and cannot be used to protect against terrorist threats, regardless of Congress's views. Indeed, according to the Administration, the President not only need not consult Congress before he acts, but he can also simply go ahead and violate Congressionally-approved and Presidentially-signed laws and treaties such as the Foreign Intelligence Surveillance Act and the Geneva Conventions.

The result has been tragic. It is an abomination that the Administration has used its claimed authority to justify torture, warrantless wiretapping, and indefinite detentions of those it labels "enemy combatants," despite clear prohibitions against all these practices in domestic and international law. (Treaties, under the Constitution, are as fully part of the law of the United States as federal statutes are, so international laws like the Geneva Conventions are domestic law, as well). In so doing, moreover, the Administration is forcing the nation to fight to preserve the system of checks and balances that undergirds our entire constitutional structure, just when we should be single-mindedly focused on how to safeguard the nation from multiple threats abroad. With America under attack from without, it makes no sense at all for us to host an attack on our Constitution from within. Yet the Bush Administration has as much as declared war on Congressional power.

Thus far, the Supreme Court has saved us from having, as a legacy of 9/11, a system in which the President is above the law in how he fights threats to domestic security. In the Hamdi and Hamdan decisions, the Court affirmed the fundamental principle that the President has no inherent authority to ignore or violate the law, even in furtherance of his view of national security.

Defining the Constitutional Legacy of 9/11: Supreme Court Decisions are Encouraging, But It's Too Soon to Tell

These decisions were no small achievement - and they make it tempting to say that the legal legacy of 9/11 (like that of Watergate) has been to show that our system works - that our constitutional tradition possesses a wonderful resilience and vibrancy, especially when it is most severely challenged.

Self-congratulation at this point, however, would be premature. The Supreme Court has ensured that Congress and the Executive will have to act jointly to determine the limits on investigative tactics, the detention and trial of suspected terrorists, as well as the many other issues which will arise in the post 9/11 world. But even the Supreme Court has little ability to ensure that our elected representatives - in Congress and the presidency -- engage in an honest debate over what the anti-terrorism rules ought to be, or to ensure that the public is given sufficient information to hold those public officials accountable for the decisions they ultimately make.

One uncounted casualty of 9/11 has been the truth. We have been, and continue to be, bombarded with out-and-out falsehoods. All evidence to the contrary, the Administration still insists on the link between Saddam and al-Qaeda. All evidence to the contrary, the Administration still says we don't torture. Similarly, we are fed misleading information exaggerating the usefulness of coercive interrogation techniques, and ridiculously inflated statistics about the supposed effectiveness of our efforts to discover and prosecute terrorists.

At the same time, the Administration seeks to withhold from the public as much information as possible about its controversial programs, and threatens news organizations who occasional manage to break through the wall of silence.

All told, the Administration has presented us with a triple-whammy: It pushes for a very substantial rebalancing between liberty and security; it seeks to do so unilaterally; and it does so while dissembling or withholding information on every front.

As a result, the legal legacy of 9/11 remains in limbo. In one direction, lies a nation that carefully and sensibly adjusted its heritage of freedom to meet a dangerous new challenge. In the other direction, lies a nation less free, less democratic, and perhaps also less safe. The choice is ours: Which will be the road not taken?


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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