Below is today’s brief essay in the Los Angeles Times that is part of a series called Reflections on 9/11. I was asked that day after the attacks to write a column for the newspaper, which ran on September 13, 2001. As I wrote the piece, I could still see smoke rising from the Pentagon. The plane in Washington hit just behind my car a minute or so after I passed the Pentagon on my way to work from Alexandria. On that day, my greatest concerns were two-fold: a change in the definition of war and the expanded use of assassination. Unfortunately, my worst predictions were exceeded by the Bush Administration and later the Obama Administration. It is shocking to think that this was ten years ago. The images and feelings remain so vivid. My car was forced into a curb by a careening car that morning and I had to replace my tire as the smoke bellowed from the Pentagon. The thought of all the innocent people lost in Washington, New York, and Pennsylvania remains an open wound for so many of us. The sheer savagery and inhumanity of the attacks shocked the conscience — a feeling only magnified later when Bin Laden was shown gloating over how he personally advised the terrorists on the best place to hit the buildings. The cautionary piece on September 13th was not meant to take away from the legitimate and collective anger that we felt — and still feel. However, it was already clear within two days of the attacks that Bush officials were going to seek the radical expansion of presidential powers and were already referencing our civil liberties as an impediment to our safety. My heartfelt sympathy to all who lost friends and family on that day.
In his September 13 Op Ed (“Cries of “war” stumble over the law”), Turley warned against the government seeking “greater flexibility” in responding to terrorists by treating criminal attacks “as a matter of war.” “Our system,” he wrote, “requires that legal means be used to achieve legal ends. We decide those means and ends within the general confines of the Constitution.” How has the founding document fared?
As the smoke was still rising from the Pentagon and World Trade Center, it became quickly evident that some of the greatest damage from the September 11th attacks would not come from without but from within our nation.
There was an almost immediate effort by Bush officials to change the definition of war. Rather than declare war on Afghanistan (where Bin Laden was sheltered), President George W. Bush wanted to declare war on terrorism. It was no rhetorical triviality. Bush decided to invoke the heightened constitutional powers of a wartime president by declaring war on what was a category of crime. Because there could never be a total, final defeat of terrorism, this “war” would become permanent – as would the heightened powers of the president.
Ten years later, the country remains “at war,” with President Barack Obama expanding many of the national security powers of his predecessor and, in the Libyan war, claiming his own re-definition of war: “a time-limited, scope-limited military action.”
Of course, the ominous signs in 2001 were realized in a myriad of other ways, from the establishment of the first American torture program to the widespread use of targeted assassinations, including operations killing American citizens. Ironically, I wrote then of the possibility of a new law that could govern the use of assassination, one that would deny a president unilateral authority to kill individuals and would reduce the need to invoke war powers. Instead, the Bush administration claimed full wartime authority as well as radically expanding the use of assassination as an unchecked presidential power. The claim of unilateral presidential authority to kill even United States citizens has been embraced by Obama.
What ultimately fell on that terrible day proved to be some of our most important constitutional structures. Tragically, it is a degree of damage that cannot be claimed by Al Qaeda alone.
Jonathan Turley is a law professor at George Washington University.