9/11: A Decade Later and a World Apart
American Bar Association News Service
By Alexandra Buller
TORONTO — As the 10-year anniversary of 9/11 quickly approaches, preeminent national security experts explored how the legal landscape has changed since then during the program “9/11 a Decade Later and a World Apart” on Friday at the ABA Annual Meeting in Toronto.
The tragic events of 9/11 have raised dramatic and unprecedented issues implicating virtually every area of law and have effects that extend way beyond the United States’ border. “What happens to the United States happens to the world,” said Salli A. Swartz, chair of the ABA Section of International Law, which sponsored the program.
The consequences of 9/11 with respect to border control and immigration have even affected the long-standing mutually beneficial relationship between the United States and Canada. Although the two countries have a strong relationship due to significant trade and the free flow of goods and ideas, security experts still find the need to ensure both borders are protected.
“I agree there needs to be a free and open flow of goods and ideas, but they must be consistent with effective border protection for the U.S. and Canada’s sake,” said Ivan Fong, general counsel of the U.S. Department of Homeland Security.
But 9/11’s reach went far beyond border protection.
“9/11 was a major catalyst and accelerant for change,” explained John J. Sullivan, former deputy secretary of the United States Department of Commerce, noting the significant economic consequences of 9/11, which he says the U.S. economy and many businesses are still observing today. “There are 150,000 fewer jobs in the airline industry today than there were in August of 2001,” Sullivan said. “9/11 almost destroyed our airline industry,” he added. Additionally, Sullivan explained that the United States is still bearing the costs of 9/11 due to the national security policies and new national security institutions that have been established.
Panelists also suggested that 9/11 was not only a catalyst for change in terms of the economy, but there were significant institutional and structural changes to national security policy as well.
“The most significant Bush administration response to 9/11 was the decision to treat the terrorist attack as an act of war, which permits the use lethal force,” said John B. Bellinger, former legal adviser to U.S. Secretary of State Condoleezza Rice who was in the Situation Room on that Tuesday morning. “Unlike domestic terrorism, we’re fighting people where we can’t use the same civil remedies,” he added. Although many people believed the Bush administration policies would have been jettisoned when President Barack Obama came into office, Obama maintained many of the same policies. “After grappling with these issues, Obama even found that you couldn’t fight terrorism that comes from abroad with our domestic laws,” he continued.
Fong also explained, “The most significant outcome of 9/11 is not just the laws passed, but the way government approaches terrorist attacks.” He continued, “Most of the changes are things you don’t see,” noting there’s an emphasis on sharing information between government departments, on engaging the public on relevant issues and encouraging the public to be prepared for a disaster.
“It’s important for the private sector to help the response to a disaster, by being prepared,” Fong noted. “There needs to be a core competence and plan for manmade or natural disasters, to allow for resilience in the affected area,” he explained.
Fong also discussed how law enforcement and the federal government are more focused on trying to prevent attacks than just responding to them, by using intelligence through various practices. “The information isn’t always perfect, but it has drastically improved our security,” he said.
Despite the success discussed by the panelists, the tools and tactics used to collects information to prevent attacks raise many privacy and civil liberty concerns. Listing full-body scans at airports, “pat-downs” by TSA, cell phone monitoring and the Patriot Act as top offenders, moderator Swartz asked panelists if the threats to civil liberties and privacy were getting more intrusive and if they were worth it.
All panelists and most of the audience of lawyers at the event agreed that the tactics for prevention are worth it.
“I think it’s worth it,” said Jamie S. Gorelick, who was on the federal commission that investigated the 9/11 attacks. “The fear after 9/11 was so palpable,” she continued. “You need a sense of security at a minimum in order to have a commitment to civil liberties,” adding that Americans have a bedrock value commitment to civil liberties.
“I believe it has been worth it,” agreed Fong, while noting there is much work that still has to be done. “Threats continue to persist and evolve from abroad and from domestic, homegrown terrorists.”
Although he believes in advancing the tools to keep up with evolving threats, he said all significant security decisions get made with input from committees designed to take the rule of law and civil liberties into consideration. “There are checks and balances in place,” he said. “We don’t believe in security above all—we believe in security to protect American ideals,” Fong explained. “If we go too far we’ll lose what we’re trying to protect,” he added.
Panelists also warned of threats politicization of the United States poses to national security and liberty concerns.
“The saddest thing since 9/11 is the political polarizing that began after the attacks and it is the worse that it’s ever been,” Bellinger said. “National security is being used as a wedge for both the far left and the far right.”
At a time when Congress is more antagonistic than ever, Bellinger urged, “We need to regain the middle ground on these national security issues.”