Bumper Crop

Divining the Meaning of 9/11

Pedestrians flee Manhattan by walking across the Brooklyn Bridge.  
Pedestrians flee Manhattan by walking across the Brooklyn Bridge.
 

Azizah al-Hibri GR'75, L'85
Professor of Law, University of Richmond Founder and President, KARAMAH: Muslim Women Lawyers for Human Rights Member, U.S. Commission on International Religious Freedom
We were full of hope and inspiration. You could say these were "the Sixties" of interfaith activism. We crossed political lines. We crossed ethnic lines. We crossed social lines. We stood together and promoted religious virtues of cooperation, civility and understanding. We did this together in churches, mosques and synagogues.
Nothing seemed to stop us from fulfilling the American ideal of a harmonious interfaith society... until the planes hit the skyscrapers, and everything fell apart, even our interfaith dreams. In the aftermath, the fact was lost that many Muslims died at Ground Zero along with other victims. Islam became a dirty word and all Muslims became suspect. I remember the traumatized Muslim women who sought counseling after sudden law enforcement raids on their homes in Virginia. In an art class, one of them painted a blurred red, white and blue flag. When the counselor asked why was it blurred, the woman answered: "Because of my tears." Her friend began using paper cups and plates because she did not know when "they would come back and take us." The raids did not uncover any troubling information, but scores of Muslims were scarred forever. Others were deeply touched by acts of kindness, like the human chain formed by their non–Muslim neighbors who surrounded a mosque to protect it from vandalism. Now that the clouds may be slowly parting, might we not reconstruct our dream of a happy and harmonious interfaith world, one that truly honors the First Amendment of our Constitution?

 

Anita A. Allen
Henry R. Silverman Professor of Law and Professor of Philosophy
After the events of September 11, 2001, there was a lot of talk in the ethics community about America having been "remade" as a nation more conscious of the need for security and less smug about our moral stature in the world. In the wake of 9/11 we could better see the importance of personal values and character: for not only had a handful of men lacking a moral compass taken down major businesses and employers like Enron and WorldCom, a handful of such men took down hubs of America's economic prowess and military might – the World Trade Center and the Pentagon. Yet the heroism on board the aircraft that crashed in the Pennsylvania countryside on 9/11, thwarting another vicious attack on Washington bespoke America's moral core. 9/11 pulled us together, created a sense of common purpose, recommitted us to fair, open, sacrificial democracy. The tenor of our involvement in Iraq, both some of how we got there and some of what we did when we arrived, was cause for concern about American values. The election of an idealistic, young African American president in 2008 symbolized the "Yes We Can!" character and freedom to which we aspire. Ten years after 9/11, some might say we seem to be losing our way, individually and collectively. Nothing like a major anniversary to renew flagging optimism.

David Aufhauser L'77
Former General Counsel, U.S.Treasury, and Former Chair of the National Security Council Policy Committee on Terrorist Financing Partner, Williams & Connolly
9/11 confronted the U.S. with fractured, transnational nonsovereign threats. In al-Qaeda's dogma of nihilism, any target was game – a train station in Madrid, London's bus and metro system, Bali's restaurants, Times Square and, of course, the twin towers. Moreover, any form of weaponry became an acceptable means to demonstrate the limits of our national defense and international power. The popular view is that the U.S. legal response was characterized by a concentration of intelligence and investigatory resources in the Executive Branch with corresponding jeopardy in the area of civil liberties. But what is frequently overlooked was our immediate realization that much of what needed to be done was beyond the ken of government, i.e., you can't bunker every shopping mall, school or transportation terminal. So the government dispersed (some might say imposed) powers and responsibilities upon gatekeepers – corporate citizens in the areas of finance, communications and technology whose private actions now serve the national defense. Indeed, perhaps as a kind of ironic symmetry, today much private action is taken to meet the new non-sovereign threat that we confronted on September 11, 2001. One quick example. In September 2005, the Treasury Department published a proposed rule under the Patriot Act stating that a small bank in Macao – Banco Delta Asia – had assisted North Korea in proliferation activity. Treasury did not go final on the rule for two years. But it didn't have to. The international banking community treated BDA as a leper as soon as the scarlet letter of the proposed rule was issued and it soon closed because of the multilateral action of private actors. In a world of non-state actors – multinationals, NGOs, Balkanized media and universal banks – homeland security rests on the judgments made by private parties, as much as does on guys with badges.

 

Chandra Bhatnagar L'01
Senior Staff Attorney, Human Rights Program American Civil Liberties Union
opportunity to reflect not only on the impact of the horrific event, but also upon our government's response to the tragedy which has been largely in violation of many basic civil rights and civil liberties. In the past decade in the name of "keeping us safe", we have witnessed serious and ongoing human rights abuses with minorities, women, immigrants and the accused among those populations who have borne the brunt of the violations. Former President George W. Bush severely damaged long–respected traditions of privacy and the requirements of the rule of law through the implementation of a program of illegal warrantless wiretapping. In 2008, Congress worsened the situation by passing the Foreign Intelligence Surveillance Act Amendments Act (FAA), which permits the government to get annual court orders that United States – even if an American citizen is on one end, and even if that person is not suspected of doing something wrong. This unconstitutional spying continues under President Obama. Another policy that raises grave human rights concerns is the "targeted killing" program. According to news reports, President Obama has authorized a program that contemplates the killing of suspected terrorists – including U.S. citizens – located far away from zones of actual armed conflict. If accurately described, this program violates international law and, at least insofar as it affects U.S. citizens, it is also unconstitutional. Another troubling policy has been the embrace of military commission trials at Guantánamo by the Bush Administration and the Obama Administration (albeit with some procedural improvements). Over 100 prisoners remain locked up in the Guantánamo prison, over two years after President Obama promised to close the facility. In court, the administration has fought the release of detainees against whom the government has scant evidence of wrongdoing. Worse, the administration has embraced the theory underlying the entire Guantánamo detention regime: that the Executive Branch can detain militarily – without charge or trial – terrorism suspects captured far from a conventional battlefield. We must remain cognizant of civil liberties violations and human rights abuses committed by the U.S. government "in our name" and remind ourselves that throughout history those abuses have never made us more secure and are always looked upon in hindsight as a source of shame and failure. As Benjamin Franklin famously stated, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

William Burke-White
Professor of Law, Former Member of the Secretary's Policy Planning Staff, U.S. Department of State
September 11 shifted the fundamental assumption on which U.S. policy had rested since the end of the Cold War. During the 1990s, the U.S. enjoyed relative security from external threats; our security could be guaranteed at our own borders. On September 11, America's vulnerability became all too clear. Yet, unlike the threats of the Twentieth Century, new threats stemmed not from states but from amorphous, often invisible terrorist networks rooted overseas but potentially operating anywhere. In this new environment, U.S. security came to depend on the stability, effectiveness, and cooperation of other states – whether enforcing their own domestic laws, preventing the spread of weapons of mass destruction, or apprehending terrorist suspects. In the decade since 9/11, the U.S. has tested two very different models of this external assurance of American security. To oversimplify, one model has sought to transform foreign governments – forcibly if necessary – to ensure both their capacity and willingness to participate in these efforts. The second model has sought to build a global architecture of cooperation to achieve the same goal. Both models have proved to have their limitations; the decade ahead will likely see continued shifts and experimentation. But, the real danger is that while orienting our foreign policy to address the threats of 9/11, we will overlook the challenges presented by rising powers, economic statecraft, and energy security.

Howard Chang
Earle Hepburn Professor of Law
Earle Hepburn Professor of Law In the summer of 2001, ambitious plans to address the problem of illegal immigration by liberalizing access to employment-based visas appeared to be a priority on the national political agenda. With the support of both labor unions and business interests, President George W. Bush seemed poised to guide these liberalizing reforms through Congress as essential elements of comprehensive immigration reform. The terrorist attacks of September 11, however, placed these plans on hold as the public suddenly came to view immigration policy through the lens of national security concerns. Congress quickly adopted a series of restrictive amendments to our immigration laws, including expansions in the exclusion and deportation grounds related to terrorism, designed to make it more difficult for terrorists to enter and remain in the United States. Restrictionists, however, now invoke the threat of international terrorism as a reason to oppose any liberalizing reforms, and when efforts at comprehensive immigration reform resumed in 2006 and 2007, legislation that would have liberalized access to visas died in Congress. The irony is that the immigration reform would not undermine national security. Each of the hijackers who struck on September 11 entered the United States legally on non-immigrant visas; most of them used tourist visas. None of them needed or used an immigrant visa, nor did they need or use any visas for temporary workers. Thus, liberalized access to either immigration visas or visas for guest workers would not make it easier for terrorists to enter and attack, given the availability of tourist visas and other visas for temporary visitors, including those actually used by the terrorists who carried out the September 11 attacks. Yet the pall that those attacks cast over the prospects for comprehensive immigration reform lingers to this day as an unfortunate legacy of September 11.

Cary Coglianese
Edward B. Shils Professor of Law and Professor of Political Science Director, Penn Program on Regulation
The United States responded to the horrific attacks on September 11, 2001, by making numerous changes to its airline security regulation. Anyone who travels regularly knows of these changes, including the creation of the Transportation Security Administration (TSA), the federalization of screening personnel, and requirements for cabin door locks – not to mention new procedures for photo identification, body scans and pat-downs, and checked bag screening. For those who follow regulation, the challenges the government faced implementing these legal and administrative changes have also been familiar. It took several years before all checked baggage could be screened and still longer before domestic cargo could be inspected; to this day, cargo on international flights entering the U.S. is still not fully inspected. Despite the fact that weapons still do slip past screeners and other security vulnerabilities remain, the TSA's screening efforts have generated lawsuits and public resistance about privacy invasions and discrimination. Ten years ago, late night comedians temporarily suspended their broadcasts following September 11th; today TSA screeners find themselves the butt of television comedy. In the immediate wake of September 11, 2001, many Americans wondered why their government had failed to guarantee their safety; the intervening decade has provided at least a partial answer by revealing the profound challenges that regulators confront when dealing with complex, dynamic problems. Regulating well is seldom easy, and although airplanes may well be safer today than ever before, the United States' experience with security regulation in the last ten years has only revealed more clearly how challenging the regulatory task can be.

Stephen A. Cozen C'61, L'64
Chairman, Cozen O' Connor
As the 10th anniversary of the terrorist attacks of September 11th are upon us, I feel a sense of disappointment and regret directed toward our institutions of government. My reasoning is quite simple: As has been recognized by the 7th Circuit Court of Appeals in the Boim case, the biggest terrorist threat we have comes from those who provide financing of and give material aid and support to terrorist organizations. Neither the State Department nor the courts have been the least bit helpful in attacking this root problem. We know from WikiLeaks that while the State Department was telling the September 11th victims not to worry about their denial of access to our civil justice system because the Kingdom of Saudi Arabia was cooperating with our government to eradicate support for al-Qaeda, the Kingdom was doing exactly the opposite and the State Department knew it. When one couples the disingenuous public statements of the State Department with a politically motivated decision by the Second Circuit in the terrorist litigation we have prosecuted in the Southern District of New York, which reinterpreted the Foreign Sovereign Immunities Act and its exceptions, to say things which the Congress never intended, which can only now be remedied by new legislation modifying, amending and making clear that U.S. citizens damaged in the United States by the acts of funders, aiders and abettors of terrorism can be sued in our courts, there is great disappointment and regret.

Joe Daniels L'98
President/CEO, National September 11 Memorial & Museum at the World Trade Center
On the day of the 9/11 attacks I lived in lower Manhattan with my family, and I still do today. Nearly 10 years ago I witnessed an unprecedented horror as well as unequaled courage and heroism. I'm proud my neighborhood, city and nation remained resilient in the weeks, months and years that followed. After all we experienced and endured, to see how far we have come, and to be given the opportunity to play a major role, not only in the reconstruction effort, but also in honoring and remembering the nearly 3,000 victims, brings this full circle for me.

Jacques deLisle
Stephen A. Cozen Professor of Law
In a narrow and immediate sense, the aftermath of 9/11 was good for U.S.-China relations. In an effort to secure Beijing's cooperation on United Nations Security Council resolutions and in anti-terrorism efforts more generally and as a consequence of the U.S.' focus on international terrorist threats and the wars in Iraq and Afghanistan, Washington put less emphasis on issues that had been perennial sources of friction in relations with Beijing, ranging from trade to human rights. But a positive tone in U.S.- China relations is not necessarily good for the U.S.' China-related interests, especially in the long run. Although we have become accustomed to thinking of 9/11 and terrorism emanating from strains of radical Islam as the major change in international affairs in the last decade, the rise of China is more important. The dominance of anti-terrorism in U.S. foreign policy – including the wars it spawned – since 9/11 has weakened the U.S.' ability to address the rise of China in several ways. First, it has distracted U.S. policymakers from focusing on the consequences of China's ascension and China's foreign policy agenda – something which has been greatly welcomed among those in Chinese policymaking circles who see the U.S. as a potential adversary or imagine a U.S. plot to contain China's rise. Second, the U.S.' post-9/11 wars and other anti-terrorism expenditures have reduced the resources the U.S. has available – and, perhaps more importantly, the resources China thinks the U.S. will have available – to address and engage China's rising military and economic clout. Third, throughout much of the decade, American military intervention in Islamic countries and the dominance of anti-terrorism agendas in U.S. engagement with Southeast Asian states diminished U.S. soft power, relative to China's, among China's near-neighbors – although this situation recently has improved with shifts in U.S. policy and China's shift to a more assertive, even aggressive, stance on the South China Sea and other regional issues. Finally, the U.S.' response to 9/11 has diminished the U.S.' ability to press American goals to change China's behavior. American critiques of the Chinese regime's human rights behavior face rebuttals that invoke Abu Ghraib, Guantánamo, the erosion of civil liberties in U.S. law, and so on. And Beijing invokes U.S.-driven U.N. resolutions and the "global war on terror" to defend its measures targeting alleged "terrorists" in China's restless Muslim northwest and even in Tibet.

Kenneth R. Feinberg
Special Master, September 11th Victim Compensation Fund Founder, Managing Partner, Feinberg Rozen, LLP
The September 11 Victim Compensation Fund was a unique response by the United States government to an unprecedented historical tragedy. It is rare indeed that a compensation fundentirely financed by the taxpayers – is made available to the innocent victims of a tragic event. When I was asked by the attorney general of the United States to design and administer such a program, I never anticipated that a decade later I would again be called upon by the Obama Administration to implement another somewhat similar alternative to the conventional tort system. This time, it was an environmental tragedy arising out of the explosion of an oil rig in the Gulf of Mexico. As a result, millions of gallons of oil spewed into the Gulf and BP agreed to pledge $20 billion to compensate all eligible victims. BP, not the taxpayers, agreed to establish the compensation program. But, like the 9/11 Fund, a voluntary compensation process was created that would permit some 300,000 individuals and businesses to avoid going to court. Programs like the 9/11 Fund and the BP Fund should not be viewed as precedents for fundamental changes in the traditional tort system; instead, they should be viewed as unique responses to unprecedented tragedies. They are one-off programs, unlikely to be replicated.

Eric Feldman
Deputy Dean for International Affairsand Professor of Law
Many like to speak of the post-9/11 world as if something elemental changed in 2001 that left an indelible mark on societies across the globe. In certain ways they are correct. For those directly harmed by the hijacked planes, the horror of terrorist violence will never recede. But even those who suffered no immediate harm were faced with a new geopolitics. Those living in the West awoke to the reality of their vulnerability. Citizens accustomed to broad civil liberties were forced to relinquish some of their freedoms for what they believed (or were told) was greater security. Governments realized how little they knew about the Muslim world, and made the study of Islam and Arabic a priority. Lawyers began to study Sharia, and anthropologists sought to better understand family and kinship relations in Islamic societies. In the West, and in what one might call the Rest, there was a sense that the world was at a precipice, with great apprehension about global stability accompanied by at least some degree of commitment to pursue new opportunities for engagement. Now, a decade after 9/11, it is clear that we have fallen short in our efforts to reframe global relations. George W. Bush, widely praised for his actions in the aftermath of 9/11, found himself just a few years later dodging a shoe thrown in disgust by an Iraqi journalist. American students, not sensing an opportunity, are in 2011 as likely to be studying Latin as Arabic. Every trip to the airport is a reminder of our diminished civil rights, yet there is little evidence that what we have lost in liberty we have gained in security. Economic and political instability are more common around the globe today than a decade ago. No progress has been made in crafting a rapprochement between the world's religious communities, nor have the enmities between long-feuding neighbors like India and Pakistan, or Japan and China, been healed. For the tens of thousands of individuals and families directly impacted by the attacks, 9/11 will always be a searing reminder of loss. But for the global community more broadly, the lessons of 9/11 have yet to be learned.

Susan Ginsburg L'86
President, US Civil Security LC Senior Counsel and Team Leader, 9/11 Commission
Does the U.S. secure borders strategy hurt or help? Unquestionably it is tougher for malefactors to enter the United States now than on 9/11; "security first" replaced a policy of promoting access. The cost is high: desirable visitors are excluded or deterred; legitimate U.S. travelers, visitors, and immigrants may be treated as criminal or terrorist suspects; U.S. citizens under suspicion may be blocked from flying home; and tough border security and immigration enforcement are poor substitutes for an effective immigration policy. We need a new strategy: securing the movement of people. After all, global movement is a antiquated. Yet, a decade later, a starkly different narrative has emerged. In scores of cases since 9/11, federal prosecutors and their law enforcement counterparts have successfully crippled al- Qaeda's financial network, snared homegrown extremists, and have squashed renewed plots by Osama bin Laden's cohorts targeting major U.S. cities. No less credit is due to criminal defense attorneys who have stepped forward, under the most trying of circumstances, to vigorously and impartially argue on behalf of those accused of conspiring to murder their fellow Americans. One of the darkest days in modern history – and what some had feared would present an impossible challenge to the rule of law – has instead proven the resiliency and effectiveness of the U.S. legal system. For those of us focused on the intersection of the law and society, there has rarely been a more critical era for study and scholarship.

Evan Kohlmann L'04
NBC Terrorism Analyst
Like many Americans, I have vivid memories of exactly where I was on September 11, 2001 when news broke of the terrible tragedy taking place in New York, Washington D.C., and Shanksville, Pennsylvania. I had arrived only days earlier in Philadelphia as a first year law student occupied with thoughts of a staid career in the corporate field. That sense of complacency was shaken when our Tuesday seminar on Civil Procedure came to an abrupt halt: two airplanes had hit the World Trade Center, and America was at war. In the tumultuous days that followed, the notion of placing hardened terrorists inside the confines of a courtroom seemed oddly antiquated. Yet, a decade later, a starkly different narrative has emerged. In scores of cases since 9/11, federal prosecutors and their law enforcement counterparts have successfully crippled al- Qaeda's financial network, snared homegrown extremists, and have squashed renewed plots by Osama bin Laden's cohorts targeting major U.S. cities. No less credit is due to criminal defense attorneys who have stepped forward, under the most trying of circumstances, to vigorously and impartially argue on behalf of those accused of conspiring to murder their fellow Americans. One of the darkest days in modern history – and what some had feared would present an impossible challenge to the rule of law – has instead proven the resiliency and effectiveness of the U.S. legal system. For those of us focused on the intersection of the law and society, there has rarely been a more critical era for study and scholarship.

Howard Lesnick
Jefferson B. Fordham Professor of Law
Most of the economic, cultural, and political changes that have occurred in this country in the last decade - the legitimation of endless rapacity in economic life and the resulting insulation of its consequences from political redress, the pervasive militarization of foreign policy and the growing ordinariness of "wars of choice," the largest patronage boondoggle in American history (aka the War in Iraq) , the near-total annihilation of independent journalism, disastrous turns in policy toward public education and immigration – probably would have occurred in some form had September 11, 2001, been just another day. Yet it seems hard to discount its tragic significances. Like historic assassinations, it seems a defining moment, a critical turning-point, burned into our national consciousness. Shooting an archduke, or a President may set in motion terrible things, but the act itself is all too ordinary; incinerating over 3,000 people who just happened to go to work that day is of a different order of thing. Pearl Harbor, after all, was a naval base. Speculations about causation seem beside the point. My daughter was walking across Washington Square that morning, and saw one of the towers fall. For an American, happily, that is a different order of things.

Harry Reicher
Adjunct Professor of Law
Different measures instituted following 9/11, both in the United States as well as elsewhere, have thrown into sharp relief potential tensions between different rights adumbrated in the Universal Declaration of Human Rights. Security measures often require a diminution in the freedom of the individual. It is often overlooked, though, that the right to live, and not have one's life peremptorily ripped away, is also a human right; indeed, it is the first of the rights listed in the Universal Declaration. It is also qualitatively and fundamentally different from all other rights: Once torn away, it can never be restored; the victim can never be compensated; and its deprivation ipso facto carries with it the loss of all other rights. Thus, when different rights are weighed in the balance, there is a strong argument for tilting the scales in favor of the right to live. A proper analysis then requires consideration of all other circumstances, to determine whether, in a particular instance, the balance should remain tilted in that direction, and it is worth compromising individual rights if doing so results in greater security, or whether it is unnecessary to derogate from the rights under discussion.

David Samson L'65
Chairman, Port Authority of New York and New Jersey Former Attorney General of New Jersey Founding Member of Wolff & Samson
America is, without question, safer today in its defenses against the threat of another terrorist attack than it was in 2001. The creation of the Department of Homeland Security and, more importantly, the integration of federal, state and local resources have made an enormous difference in our ability to employ intelligence, law enforcement and emergency management operations in ways that never existed before the horrific September 11 attacks. These organizational improvements, coupled with concomitant public awareness programs, have also engaged the private sector, so the business community is now a partner in our defense network. At the Port Authority of New York and New Jersey, we oversee the nation's largest and most complex transportation system – airports, vehicular and rail tunnels and bridges, port facilities – with responsibility for an integrated cargo operation, not to mention rebuilding the World Trade Center site. With hundreds of thousands of customers using our facilities daily, and with responsibility for the movement of goods, the Port Authority's facilities are among the most visible targets in the world. Accordingly, security has been a primary focus and the Port Authority has invested billions of dollars since 2001 in hardening our facilities against attack. Although this investment has come at great financial cost, requiring the re-ordering of priorities in infrastructure investment, our region's facilities are certainly safer. Finally, although we have ramped up our vigilance, it has been my experience we have not done so in a way that has deviated in a systemic way from those core values respecting the public's rights or expectations; by and large, although there have been incidents of profiling and other excesses, the implementation of our political decisions has successfully maintained the balance necessary and effective counter-terrorism policies with individual liberties.

David Skeel
S. Samuel Arsht Professor of Corporate Law
The morning the Twin Towers were destroyed, I was on my way to the law school to teach (I thought) my bankruptcy class. There hadn't been many noteworthy bankruptcies that year, but this would soon change. Enron collapsed a few weeks later, and its scandal-riddled collapse would be followed by Global Crossing, WorldCom and other companies. No one would have imagined those scandals on that unnervingly brilliant September morning, and still less would they have imagined the even greater collapses of Bear Stearns, Lehman Brothers, AIG and others seven years later. In retrospect, 9/11 stands like a line of demarcation between the old business and financial order that dated back to the 1930s, and a new order that is still emerging, even after two major pieces of legislation: the Sarbanes-Oxley Act of 2002, and the Dodd-Frank Act of 2010. It would be nice to say that 9/11 was the day that the "greed is good" ethos of the 1980s and 1990s ended, and was replaced by sensible regulation and a more nuanced perspective on markets and finance. But that wouldn't be accurate. We aren't there yet.