ON SEPTEMBER 11, 2001, acts of war were unleashed on the United States by a stateless international enemy which we know as al Qaeda. Actually, al Qaeda formally declared war against the United States during the late 1990s, but most of the American public did not pay much attention. That changed, of course, when aircraft slammed into the World Trade Center, the Pentagon, and a field in western Pennsylvania.
In the hours and days after the air attacks of September 11, several fundamental facts became apparent. First, the enemy deliberately avoided wearing uniforms or declaring itself. To the contrary, the terrorists masqueraded as students or other civilians and exploited the mobility and freedom of our society to leverage their assault. Second, there was every reason to believe that the enemy had some kind of witting or unwitting support network within the United States, which furnished al Qaeda operatives with resources such as fraudulent documents, places to live, and transportation. Whether the sources of documents, resources, and funds knew what the terrorists intended or not, the existence of these support networks created the potential for future terror attacks. Third, there was no simple way to distinguish between the vast majority of well-meaning foreign visitors and U.S. residents, and those very few but very dangerous individuals who had the intent and capacity to do great harm. This was not merely searching for a needle in a haystack--it was searching for a needle disguised as a stalk of hay.
Finally, and perhaps most significant,
the American people realized that we were at war. To be sure, this was not a war in which our adversaries operated in massed formations within a discrete geographic area. But it was (and is) a war by any meaningful definition of the term. The attack of September 11 not only caused an unparalleled loss of American civilian life, but it culminated an ongoing campaign against Americans of several years' duration. That campaign included bombings of our embassies in Africa, an aborted attack on the USS The Sullivans, and a successful attack on the USS Cole.
After September 11, no one could mistake al Qaeda for a mere gang of lawbreakers. For they chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision.
Because this was a war on American soil, national defense required a domestic as well as an overseas response. And, as is invariably the case in the midst of a crisis, that response was necessarily formulated with very imperfect information about the scope and imminence of the threat. Americans knew that the threat was not over--that the terrorists had no intention of declaring a cease-fire. What we did not know was the timing, location, and scope of the attacks yet to come. We did not know whether the assaults of September 11, as awful as they were, were a prelude to a disaster of even more tragic proportions. (As a matter of fact, even now we do not know. We cannot be sure what is to come and what we have succeeded in averting.)
In this dynamic and dangerous moment--shrouded in the proverbial fog of war--the government approach to domestic security was based on three goals: (1) enhancing our intelligence capability to predict what might happen next; (2) preventing those who could be identified as an active threat from carrying out their deadly missions; and (3) disrupting the networks and institutions from which terrorists might draw sustenance and support.
At the same time, and of equal importance, the leaders of our domestic security effort understood a principle that the attorney general himself repeatedly articulated: We must think outside the box, but not outside the Constitution. Put another way, everyone involved in formulating the response to the challenge of September 11 was acutely aware that this effort would be subject to the verdict of history, in the same way that we have rendered that verdict on the actions of our forefathers when they stepped forward to defend the country during times of peril.
I cannot, of course, render the historical judgment on the actions of the generation with which I served. I do, however, think that those who would write even a rough first draft cannot fairly do so without comparing the steps taken in our own time with our nation's past actions in facing domestic threats.
In the wake of September 11, the government quite self-consciously avoided the kinds of harsh measures common in previous wars. The exclusion and detention of American citizens of Japanese ancestry who resided on the West Coast in World War II is only the
most infamous example. During the nineteenth and well into the twentieth centuries, the government responded to domestic violence with a panoply of extraordinary measures, including suppression of criticism; separate treatment of noncitizens; arrests and searches without warrants; and preventive detention.
HOW, then, do we evaluate the domestic security measures the government has undertaken in the last two years? There has been criticism leveled at information-sharing enhancements under the USA Patriot Act; against the establishment of military commissions; against the denial of bail to several hundred aliens who were in violation of federal immigration or criminal laws; and against the detention of enemy combatants, including U.S. citizens. How do these stack up against the historical record?
First, in our time, we have seen no government suppression of dissent or criticism. Unlike John Adams or Woodrow Wilson, George W. Bush has not prosecuted those who argue against the administration, nor has the government seized newspapers or banned them from the mails, as did Lincoln.
Second, although the Patriot Act enhanced intelligence-gathering capabilities, it did not do so outside or in violation of the framework of existing Fourth Amendment doctrines. To be sure, many of these provisions were aimed at streamlining the process of judicial review, or the exchange of lawfully obtained information. But nationwide search warrants or technological extensions of traditional pen register principles do not alter the actual scope of Fourth Amendment protections, or the standards for obtaining warrants. Even the so-called "sneak and peek" warrant--which allows agents to delay notification that they have searched premises under a judicial warrant--applies settled Fourth Amendment doctrines. Every warrant authorizing electronic surveillance, for example, allows delayed notification; otherwise, notice to a suspect that his house or office is bugged would defeat the very purpose of the surveillance.
Third, the president has established military commissions that parallel the commission established by FDR to try Nazi saboteurs caught in this country. But no one has yet been tried by a commission, and--unlike in World War II--no American citizen, by presidential order, will be subject to a commission. Most significant, the Bush administration made it clear in issuing the order that the administration anticipated courts would exercise habeas jurisdiction over commission defendants, although that jurisdiction may be limited as a matter of law. In this regard, the president rejected the view initially espoused by Roosevelt, that such commissions were wholly beyond the reach of the courts.
Fourth, there has been no evacuation or preventive detention of American citizens or of aliens based on ethnic heritage. Even in the immediate wake of September 11, the policy of the government was to seek to detain aliens only based upon evidence of a violation of criminal or immigration law that provided a basis to deny bail. Of course, individuals were detained for immigration violations in the period following September 11. These persons were identified not by ethnic background, but for some specific investigative reason. For example, individuals found in an apartment with a telephone number listed to one of the hijackers might be detained if there was a legal basis to do so. This is far different from the mass detentions of aliens and citizens of Japanese descent during the Second World War.
Finally, the government has detained enemy combatants. Almost all of these were captured on the battlefield in Afghanistan, reflecting the customary and well-accepted practice of incapacitating enemy soldiers overseas. But in one instance, a U.S. citizen apprehended in the United States has been detained as an enemy combatant. Obviously, this is not detention on the scale practiced in the Civil War. Nevertheless, of all the measures undertaken in the last two years, I venture to say that this is the most controversial. That is not because the individual decision was unjustified, but because it is possible to envision abuse of the power to detain persons in the United States. How does one define an enemy combatant so as to distinguish between operational agents of terrorism on the one hand, and people who are merely ideologically antagonistic to the government on the other hand? What is the role of judicial review in circumstances where the evidence may include highly sensitive classified material? How long can combatants be held when we are fighting a war of extended or indefinite duration?
This last area will be that which requires the most creative legal thinking. Right now, much of the definition of the rules is being undertaken by the courts, in a more or less ad hoc manner. But we may need to think more systematically and universally about the issue of combatants. Two years into the war on terror, it is time to move beyond case-by-case development. We need to debate a long-term and sustainable architecture for the process of determining when, why, and for how long someone may be detained as an enemy combatant, and what judicial review should be available.
What we can say is that the government's actions after September 11 reflected a consciousness of history and of the historical moment. Excesses of the past were not repeated. A balance was sought and, I hope, achieved.
That balance was struck in the first flush of the emergency. If history shows anything, however, it shows that we must be prepared to review and if necessary recalibrate that balance. We should get about doing so, in the light of the experience of our forebears and the experience of our own time.
We are at a transition point in the evolution of legal doctrine to govern the armed conflict with terror. How history will judge what has been done is for our successors to determine. The triumph is that our successors will be alive and free to determine that history.
Michael Chertoff, a judge of the U.S. Court of Appeals for the Third Circuit, was the head of the Justice Department's Criminal Division from 2001 to 2003. This article is adapted from remarks he delivered October 10 at the University of North Carolina at Chapel Hill law school.
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