After September 11, 2001, it is often said, “everything changed.” The shock of that day, on which nearly three thousand civilians were murdered, still reverberates, affecting politics, law, and policy here and abroad. But ten years later, it is worth asking what, precisely, did and did not change, particularly with respect to law, liberty, and security.
One of the most important lessons of the past decade may be that the rule of law, seemingly so vulnerable in the attacks’ aftermath, proved far more resilient than many would have predicted. President George W. Bush’s administration initially rejected the constraints of law as inconvenient obstacles on the path to security. But the administration was eventually forced to adapt its response to legal demands. The American constitutional system ordinarily relies on courts and checks and balances to impose legal restrictions on government officials. But in this period, with one significant exception, restraint of government was brought about neither by judicial enforcement of constitutional law nor by legislative checks on executive power, but by civil society’s demands for adherence to basic principles of human rights. Ten years and one administration later, the threats, both to our security and to our liberty, are far from over. But the experience of the last ten years shows the importance of maintaining public pressure for fidelity to our core principles as we enter the second decade of the “war on terror.”
Much has changed since September 11. The United States launched two wars, one against the country that harbored al-Qaeda, the other against a country that did not. The federal government undertook the largest bureaucratic reorganization since the New Deal, creating the Department of Homeland Security, the Office of the Director of National Intelligence, and the National Counterterrorism Center. The FBI shifted its focus from law enforcement to intelligence-gathering and preventing terrorism, aggressively employing informants and provocateurs to “flush out” would-be terrorists before they acted. Congress expanded the government’s authority to gather intelligence on people in the US and to prosecute even speech and association that allegedly gave “material support” to terrorist groups.
How much are we spending on counterterrorism efforts? According to Admiral (Ret.) Dennis Blair, who served as director of national intelligence under both Bush and Obama, the United States today spends about $80 billion a year, not including expenditures in Iraq and Afghanistan (which of course dwarf that sum).1 Generous estimates of the strength of al-Qaeda and its affiliates, Blair reports, put them at between three thousand and five thousand men. That means we are spending between $16 million and $27 million per year on each potential terrorist. As several administration officials have told me, one consequence is that in government meetings, the people representing security interests vastly outnumber those who might speak for protecting individual liberties. As a result, civil liberties…
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