Sunday, September 18, 2011

The Legal Landscape Ten Years After 9/11

This recent panel at Duke Law School features Duke Professors Curtis Bradley, Charles Dunlap and Neil Siegel, and me.

Monday, September 5, 2011

When we say that 9/11 changed something, what are we saying?

We are beginning a week of reflection on the events of September 11, 2001.  Some 10th anniversary events will be memorials, remembering those who perished that day.  Other events will seek to make sense of what 9/11 did – to New York, to the United States, to the world.  So often remembered as a day that “changed everything,” academic panels will be held and op-eds written about just what 9/11 changed, and what it didn’t.

But what does it mean to say that 9/11 changed something?  There is often a slipperiness in the causality.  It is sometimes assumed that the terrorist attacks set certain historical events into motion.  But if we see 9/11 as causing the politics, culture and military actions that followed, then we are giving the airplanes that slammed into buildings a powerful determinism.  We are assuming that al Qaeda did not just slaughter thousands, but drove American politics for the next decade.

The post-9/11 era has sometimes been compared with the Cold War era to understand the way security concerns can impact rights.  The Cold War era shares another feature with the post-9/11 years: a murkiness about causality.  Although library shelves are filled with studies about what the Cold War did, just how the Cold War acted in history is sometimes left to the imagination.  The Cold War is sometimes evoked as if it were a climate system – as in the “Cold War climate,” but this climate somehow nebulously drove politics and culture.  Sometimes the Cold War is treated like a “hot” war, but without attention to its different military characteristics.  Sometimes it is simply a time-span, but nevertheless retains its causal character.

Diplomatic historians devote themselves to running down the details and understanding how the domestic and global puzzle pieces fit together.  But legal scholars often employ the Cold War as a category without this precision.

Similarly, 9/11 is seen as setting into play a series of events, without attention to whether we need a causal stopping point.  This builds in an assumption that there was a direct and inevitable line from the terrorist attacks to the Global War on Terror, and to the way American domestic and military policies were formulated. This accords Osama bin Laden more power that he actually had.

The assumption that 9/11 directly caused post-9/11 American policy also obscures one of the experiences of September 11 itself: the profound confusion.  When the second plane hit the South Tower of the World Trade Center, the terrible shock was coupled with fear and anxiety, and the question of what on earth was going on.  President George W. Bush provided an answer:  the nation was at war.  The wartime frame provided the president with a powerful way to rally the nation.  Americans came to see 9/11 as the opening of a wartime, but this displaced competing arguments at the time about what 9/11 was, and how the nation should respond.

On this 10th anniversary, we should see 9/11 as a crisis that enabled a political moment.  In the face of this crisis, American leaders made choices.  The most important choice of all was how to frame the terrorist attacks – to call the crisis a war.

Al Qaeda succeeded in a devastating attack on September 11.  What the terrorists did not and could not do was to determine American policy and politics for the next decade.  Even if 9/11 changed the way Americans thought about the world, it could not determine the actions we would take in its aftermath.  It did not deprive American leaders of choices.

Cross-posted from Balkinization.