Reflections On 9/11

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.

87 thoughts on “Reflections On 9/11”


    September 11: A Day of Death and a Decade of Constitutional Crisis

    Thursday 15 September 2011

    by: Shahid Buttar, Truthout | Op-Ed

    While our nation’s founding fathers were imperfect beings and left much to be desired, they anticipated our contemporary constitutional crisis. Nearly 250 years before our politicians began trading “essential liberty to obtain a little temporary safety,” the founders did their best to prevent future crises from destroying the republic they created. But in the decade since the 9/11 attacks, our political leaders have done precisely that, leaving the contemporary United States a pale shadow of the “land of the free” we continue to hail at baseball games.

    It is the sub par work of our current leaders – including Presidents Bush and Obama, the justices of the Supreme Court and Congressional leaders from both major parties – that has unraveled our constitutional fabric before our eyes. But it is we, the people, who have allowed fear to drive our political decisions. As the checks and balances between our divided powers have eroded, the executive branch continues to grow more powerful, regardless of who holds the White House.

    In the “Federalist No. 10,” James Madison explains the diffusion of power across multiple institutions to enable checks and balances among them. His theory was that a democratic republic cannot legitimately suppress political differences, but can at least prevent them from undermining the system by encouraging enough “factions” that no one could dominate. Madison envisioned political factions as crabs in a bucket, dragging each other down before one could oppress the rest.

    But checks and balances routinely fail today.

    Courts defer to executive claims that old news already reported by journalists could undermine national security if discussed in a court. Congress has not only abdicated its oversight responsibilities by passively failing to check executive power, but actively reinforces it at nearly every turn. And where local jurisdictions have tried to protect the civil rights of their residents from a long-secret FBI scheme to create a national biometric ID system, the federal juggernaut has rolled on, dividing and conquering a confused public by vilifying vulnerable communities (in this case, undocumented immigrants).

    Among the federal and state executives, legislatures and judiciaries and the executives and legislatures of local municipal entities, there are at least eight branches of government that govern the lives of any given American. Yet, just two political parties hold (for all intents and purposes) a duopoly on the thousands of offices across those eight branches.

    How are branches of the federal, state and local governments supposed to check each other when many are composed of individuals who share the same political allegiances? Few admissions reflect greater fecklessness than hearing Democratic members of Congress repeatedly decline to reintroduce civil rights legislation they have long supported, simply because the Obama White House opposes it. And fewer judicial decisions reek of corruption more than the ruling by Supreme Court justices appointed by Republicans – who were responsible for placing the Bush administration in office in the first place – insulating Cheney’s energy task force from statutorily required disclosures that could have stopped the disastrous war in Iraq.

    Congress holds a constitutional responsibility to check and balance the executive branch. But rather than use its oversight tools to correct overzealous policies, Congress has reinforced executive abuses at nearly every turn.

    Bipartisan Congressional votes amid little debate hid evidence of detainee abuse in fall 2009, authorized dragnet domestic surveillance by the National Security Agency in 2008, entrenched the FBI leadership in summer 2011 and reauthorized the Patriot Act three times over the past two years despite a rising tide of civil rights violations. Even where courts have been outspoken – for instance, defending the rights of detainees jailed without trial – Congress has gone out of its way to statutorily reinforce a regime of arbitrary detention incompatible with the nearly thousand-year history of habeas corpus.

    Instead of independent institutions exercising their checks and balances, our government is composed of parties combining forces across those institutions to block those checks and balances. And while our leaders have paved the way for today’s constitutional crisis by endorsing executive privilege and power, we, the people, have fallen asleep at the wheel by accepting the corruption that now passes for business as usual. The legacy of 9/11 is far more terrifying than terrorism: it is the perversion – in only ten short years – of a 200-year-old republic once hailed as “the land of the free.” (end excerpt)

  2. Excerpt from the Democracy Now program that I provided a link to in my previous comment:

    AMY GOODMAN: Can you talk, Senator Graham, about the 9/11 Commission and the suppressed pages of that commission, what you believe is in them, and if it links to the Saudi royal family?

    BOB GRAHAM: The suppressed pages were in the Congressional Joint Inquiry. We worked diligently throughout 2002 to gather as much of the information as we could and to make recommendations. We had an 800-plus-page report, one chapter of which, which related primarily to the role of the Saudis in 9/11, was totally censored. Every word of that chapter has been denied to the American people. One of the reasons that I wrote a novel, Keys to the Kingdom, was because I felt that that was a means of beginning to tell the American people some of the things which they have not been able to be told because of the degree of cover-up that has surrounded the Saudi activities in the United States prior to 9/11.

  3. Former Senator Bob Graham Urges Obama to Reopen Investigation into Saudi Role in 9/11 Attacks
    Democracy Now, 9/15/2011

    Former Florida governor and senator Bob Graham is calling on President Obama to reopen the investigation into the Sept. 11 attacks after new information has emerged about the possible role of prominent Saudis in the 9/11 plot. According to recent news reports, a wealthy young Saudi couple fled their home in a gated community in Sarasota, Florida, just a week or so before Sept. 11, 2001, leaving behind three cars and nearly all of their possessions. The FBI was tipped off about the couple but never passed the information on to the 9/11 Commission investigating the attacks, even though phone records showed the couple had ties to Mohamed Atta and at least 10 other al-Qaeda suspects. Graham joins us to discuss the news he’s called “the most important thing about 9/11 to surface in the last seven or eight years.” As the former chair of the Senate Select Committee on Intelligence, a post he held on September 11, 2001, Graham chaired the Congressional Joint Inquiry into the attacks. He’s just written a novel called “Keys to the Kingdom,” which follows a fictitious former senator and co-chair of the 9/11 congressional inquiry who is murdered near his Florida home after he uncovers an international conspiracy linking the Saudi Kingdom to Osama bin Laden and al-Qaeda. Graham says he chose to write the novel after his 2000 non-fiction book, “Intelligence Matters,” was heavily censored.

  4. As one of America’s greatest judges, Learned Hand, once cautioned, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” -David Cole

    After September 11: What We Still Don’t Know

    David Cole

    September 29, 2011


    But most disturbing, from the standpoint of resurrecting the rule of law, the administration has refused to confront honestly the nation’s past wrongs. As President Obama entered office, he sought to make a clean break with his predecessor. But at the same time, he has insisted that we look forward, not back. His administration has refused to conduct the criminal investigation that the Convention Against Torture requires wherever there are credible allegations that a person within our jurisdiction has committed torture. His Justice Department vetoed the recommendation of its own Office of Professional Responsibility that lawyers John Yoo and Jay Bybee be referred to their bar associations for disciplinary action in view of their having failed to provide candid legal advice in drafting the “torture memos.” The administration has sought to derail efforts in Spain to investigate US responsibility for torture of Spanish citizens held at Guantánamo. And President Obama continues to oppose even a high-level commission to investigate and report on the nation’s departure from the rule of law and descent into torture, abduction, and disappearances.

    Obama appears to believe that such an investigation would be divisive, and might undermine his efforts to portray himself as above partisan wrangling. But division is a fact of life in Washington these days. And being above the fray is not an unmitigated good; some things are worth fighting for. A legal and moral accounting of the wrongs we have done should be high on the list.

    Because so much was done under the veil of secrecy, much remains unknown about the extent of the illegality. Mark Danner’s publication in these pages of the Red Cross’s report on the abusive interrogations of “high-value” detainees provides a glimpse at the horrors US agents inflicted.4 But we do not even know how many people US officials have abducted, rendered, disappeared, tortured, or killed. We do not know the extent of the injuries suffered, and still being suffered, by those we abused. We still know relatively little about the mistreatment of most of the Guantánamo detainees. We have not apologized to even a single victim—not even to those, like Canadian citizen Maher Arar and German citizen Khaled al-Masri, who were targeted for renditions and torture based on misinformation, and have been cleared of any wrongdoing themselves.

    Meanwhile, our former president in his memoir has proudly proclaimed that he personally authorized waterboarding—a practice we prosecuted as torture in the past when it was used against our troops. The former vice-president recently replied affirmatively when asked whether waterboarding should “still be a tool” of interrogation. Failing to condemn such blatant wrongdoing in some official way leaves an open wound both for the victims and for the integrity of our system, and implies that the tactics were neither lawless nor immoral. The rule of law may be tenacious when it is supported, but violations of it that go unaccounted corrode its very foundation.

    All of which only underscores the continuing need for an engaged civil society committed to the ideals of liberty and law. The past decade suggests that the rule of law may be stronger than cynics thought. It teaches that adherence to values of liberty, equality, and dignity is more likely to further than to obstruct our security interests. But it also illustrates our collective reluctance to confront our past, a reluctance that threatens to erode our most important values. As one of America’s greatest judges, Learned Hand, once cautioned, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” (end of excerpt)

Comments are closed.