On September 15th, faculty, students, and members of the New York City legal community gathered to discuss the War on Terror’s effect on civil liberties and the erosion of American democracy at a panel discussion entitled “Ten Years of 9/11.”
After a brief introduction by Interim Dean Michael Gerber, Professor Susan N. Herman, Centennial Professor of Law and President of the American Civil Liberties Union, discussed her new book, Taking Liberties: The War on Terror and the Erosion of American Democracy (Oxford University Press, 2011). In particular, Professor Herman discussed how the terrorist attacks had been an occasion for the “repurposing of criminal law,” for example in the formation of the Patriot Act and criminal law surrounding issues of material support to terrorists, as well as the removal of barriers to unlawful search and seizure.
“A decade is a long enough time to allow us to step back and try to look at the whole picture of the costs and benefits of strategies that were forged during the panicky days right after 9/11,” she said. “What I aim to do in this book is to correct the lack of balance in our perceptions of the War on Terror by showing how innocent Americans have been prosecuted, incarcerated, blacklisted, watchlisted, conscripted as antiterrorism agents, spied on, and gagged.”
Using themes from Professor Herman’s book as a springboard, Professors Derek Bambauer, Maryellen Fullerton, and Nelson Tebbe, discussed post 9/11 laws effects on the Internet, immigration, and the free exercise of religion, respectively.
Professor Bambauer noted how the 9/11 attacks had acted as a pivot point for our use of, and thinking about, the Internet. He said that the attacks, and subsequent policy and legislative responses, had effectively ended thinking about the Internet as “a democratic panacea.” They posed hard questions regarding the conflict between idealistic views about the purpose and benefit of online information and the “realpolitik behavior” that has characterized most post-9/11 thinking surrounding Internet monitoring and regulation.
Professor Fullerton discussed the impact on immigration and asylum law in the United States. In particular, she emphasized that for every so-called “outsider” who wants to immigrate to the U.S., there is a citizen – an insider – already in the country who wants that person here. But the barriers to legitimate petitions for asylum and other immigrant statuses have increased markedly as a result of the Patriot Act and Real I.D., and the minimal criteria, most overly broad in nature, required to tag someone as a risk to national interests. She argued that the real cost of 9/11 for a healthy immigration policy had been in terms of the “progress that did not occur,” citing multiple examples of areas where the U.S. had been poised to instate a more equitable immigration process and these efforts ground to a halt.
Professor Tebbe discussed the difficulty of tackling religious issues of 9/11 head-on. He noted that most of the legal and constitutional protections of religion are neutrality rules, meaning that in order to stop a certain behavior towards a certain group on religious grounds, the behavior must be characterized as “deliberately non-neutral.” Because much of the rhetoric surrounding 9/11 has not explicitly focused on categories such as “Muslim” or “Islam,” but rather on “terrorism” by people who may happen to also be members of these other categories, it has been notoriously difficult to follow up on accusations of religious discrimination, even with strong anecdotal support.
“A puzzle of the post-9/11 era is why world events that so centrally feature religious freedom have not been litigated in the courts as questions of religious liberty,” Tebbe said. “Herman's stories show why this is a mistake. So many of the government's actions since 2001 have had a serious impact on the religious life of individual citizens, even though they could not have been shown to have been motivated by religion, as the legal rules require. In many other areas of constitutional law as well, Herman's book illustrates the gap between constitutional law and real freedom for real Americans.”
The consensus by the panelists was that the policy and legal climate after the 9/11 terrorist attacks had a host of unintended consequences in multiple areas of the law, and that raising awareness about how these consequences played out in the lives of “regular Americans” was crucial to understanding and fighting the erosion of civil liberties and democratic values.
Read more about Taking Liberties: The War on Terror and the Erosion of American Democracy.