September 13, 2016

Fifteen Years After 9/11 Legal Complexities Remain

By Deborah Pearlstein, Associate Professor of Law, Benjamin N. Cardozo School of Law

*This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001.

Professor Deborah Pearlstein

September 13, 2016 ACS Blog - When ACS asked whether I might contribute to its blog symposium marking the 15th anniversary of the attacks of 9/11, I thought immediately of the many works I have already seen trying to assess what has happened to national security law or to the separation of powers more broadly, in the years since the attacks.  A great many of these writings have aimed to tell linear stories of the lessons that the U.S. response to the attacks have taught or reinforced, about the nature of the U.S. government in times of conflict – courts defer to the executive in wartime, for example or executive power only grows in wartime. Others have focused on characterizing thematic changes in the substantive law, identifying a categorically “new normal” in which war never ends and neither (therefore) does the application of the law of war, in which lethal targeting and detention without trial are uniquely permitted.

Yet the complex reality of the past 15 years has repeatedly challenged the notion that we might accurately tell a singular thematic story of the current legal age. Take the expectation that wartime will feature repeated bold assertions of executive power, assertions no other branch will move to rein in, with the effect that the power of the U.S. executive only increases over time. There are indeed repeated, important historical examples of wartime executives making broad claims of power and little question that both post-9/11 presidents have at times done so too. President Bush claimed, for example, that the president’s power as commander-in-chief could not be constrained by a federal statute criminalizing torture. Making an argument of different magnitude in one sense, President Obama, likewise, sought to evade federal War Powers Act requirements of congressional authorization for the continued use of U.S. military force in Libya by arguing that, notwithstanding a then deepening U.S. air war in Libya, the United States was not engaged in “hostilities” within the meaning of the Act. 

Read more on the ACS Blog. 

It is not the case that courts always defer in wartime or executives always seek and invariably receive greater power or that war, the modern counterterrorism war, could never end. The story is more complex and its details going forward depend very much on what we choose.