Twenty years later: Law School faculty reflect on 9/11’s impact on the law

In recognition of the 20th anniversary of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon, University of Pennsylvania Carey Law School faculty share their insights into how 9/11 has impacted the law, particularly in their areas of expertise:

Henry R. Silverman Professor of Law and Professor of Philosophy Anita L. Allen:

The 9/11 attacks lead to rapid enactment in just over a month of major new Federal Legislation, the USA Patriot Act (2001). Privacy advocates warned that the statute compromised paramount information privacy and unduly empowered government surveillance. Others argued that it was far too easy for terrorists to escape detection and apprehension under pre-9/11 policies. The Patriot Act amended the Electronic Communication Privacy Act and other existing laws to increase the scope of search warrants and court orders, to facilitate collection of information and items from individuals, internet service providers, schools, financial institutions and libraries, and to make it easier for criminal law enforcement and national security officials to communicate about foreign intelligence surveillance matters. Many Patriot Act measures remain with us, long after the emergency of 2001. The fact that change came so quickly and permanently after 9/11 raises a general concern about whether special caution is needed when legal regimes affecting fundamental liberties are modified in response to tragedy and crisis. Hopefully medical privacies set aside to fight the global pandemic will not permanently recalibrate the balance between public health and the ideal of a private life.

Quattrone Center Research Fellow Seema Saifee:

As the nation honors the thousands of victims of the September 11 attacks, whose images remain burned in our collective memories, human rights advocates, everyday citizens and (hopefully) government officials reflect on how our nation responded to those attacks, a response that has burned our legacy.

That response was unprecedented. Under guidelines loosened by the Department of Justice, the FBI was authorized to open investigations into individuals absent any suspicion of criminal activity. FBI agents baited Muslims to spy on neighbors and congregants, by dangling the specter of immigration consequences, and planted informants in mosques. Joining the spying was local law enforcement. The NYPD “mapped” Muslim businesses, communities and students’ associations, including at the University of Pennsylvania, keeping tabs on Muslim students’ protected speech and religious observance, and even infiltrating their social outings, without any suspicion of wrongdoing. The breadth of this dragnet has fundamentally changed policing today as local law enforcement now deploys its vastly expanded post-9/11 surveillance capabilities to monitor peaceful protests and respond to street crime, subjecting ordinary people to near-constant surveillance.

The United States’ response did not end there. As the longest war in American history has now reached its end, the United States’ withdrawal from Afghanistan calls into question the legal basis for the continued “law of war” detentions in Guantanamo. Shortly after the September 11 attacks, using a “global war on terror” frame, President Bush asserted the unilateral power to capture anyone from anywhere in the world and hold them indefinitely without any legal or judicial review. Nearly 800 Muslim men were kidnapped abroad, largely by bounty hunters, many far away from any battlefield, and sent to Guantanamo. The vast majority would never be charged with any crime. The highest levels of the U.S. government authorized the use of torture, in violation of international human rights and domestic laws, as the CIA began a secret detention, interrogation and extraordinary rendition program whose “enhanced interrogation techniques” included “rectal feeding.” Insiders who later exposed the torture and once-secret surveillance programs (risking their careers and futures) were aggressively prosecuted, while those who inflicted and authorized them continue to evade accountability. After the men imprisoned without charge or trial in Guantanamo won the constitutional right to challenge the legality of their detention in Article III courts, and over 60% of the habeas petitions heard on the merits were granted by the district court, habeas “winners” remained confined when the federal appeals court decided that it had no power to remedy even an unlawful detention. When President Obama was inaugurated, his administration would continue to defend this holding. And, 20 years later, the embattled September 11 military commissions, convened to prosecute five men actually charged in connection with the 9-11 attacks, have yet to produce a single trial.

As we reflect on the past 20 years, we are challenged to re-imagine how our nation might better have responded to the September 11 attacks than through the reflexive use of suspicionless surveillance, bombs, torture and cages. It is impossible to capture the human, moral, and democratic costs.

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