September 28, 2011
Harvard Law School commemorated the 10th anniversary of the Sept. 11, 2001 terrorist attacks with a two-day conference of top-level advisers and experts to elucidate the changing legal landscape in the battle against terrorism.
The conference, "Law, Security and Liberty post-9/11," was held Sept. 16 and 17, and marked the launch of the new Harvard Law School-Brookings Project on Law and Security, a joint venture of HLS and the Brookings Institution. It was also the first public event to be held in the school’s new Wasserstein Hall, part of the new Wasserstein Hall, Caspersen Student Center and Clinical Wing building scheduled to open formally later this year.
President Obama’s top counterterrorism adviser, John Brennan, delivered a major address defending the Administration's counterterrorism policies practices, telling conferees that the U.S. must not let down its guard in fighting terrorist organizations on a broad front. But he stressed that all the administration’s counterterrorism actions are guided by a policy that they be conducted within the rule of law. The speech was reported on by a number of national and international media outlets. One conference attendee, Professor Martin Lederman of Georgetown Law, called Brennan's remarks the “most comprehensive single statement of the Obama Administration’s policies and practices with respect to al Qaeda and other terrorist threats.” (See sidebar.)
|Juliette Kayyem, Assistant Secretary, Department of Homeland Security, 2009-2011|
Participants and attendees from academia, government, and nongovernment organizations examined the impact the attacks and the resulting “war on terror” have had on domestic security, governmental power, international law, legal ethics, and U.S.-Muslim relations.
Project co-director Gabriella Blum, the Rita A. Hauser Professor of Human Rights and International Humanitarian Law at HLS, opened the conference by encouraging attendees to not only reflect on developments of the last 10 years but to look forward and apply lessons learned from a decade of counterterrorism efforts to the future.
While the conference gave Brennan an opportunity to articulate the Administration's views, it was attended by experts and top-level advisers from across the spectrum of political parties and recent administrations. “9/11 was more than just a remarkably tragic historic event,” said HLS Lecturer on Law Juan Zarate '97, senior adviser at the Center for Strategic and International Studies and who, from 2005 to 2009 was the deputy assistant to President Bush, and deputy national security adviser for combating terrorism. “It really was a moment in our history where we realized that transnational, non-state actors could have major geopolitical impact.”
The result, he said, has been “a maturation of the national-security paradigm” in which government agencies and law-enforcement bodies work cooperatively in an “all-of-government approach” to fighting terrorism. He said that a similar approach has taken place internationally with the establishment of “multiple platforms of cooperation” in which the U.S. partners with other nations to share intelligence.
On the domestic front, Philip B. Heymann, the James Barr Ames Professor of Law at HLS and director of its International Center for Criminal Justice, delivered a critical assessment of the war on terror’s impact on civil liberties. Americans have come to accept a number of changes—greatly expanded Presidential powers, the right to try suspected terrorists who are American citizens before military commissions, and expanded governmental surveillance powers—as a result of 9/11, he said.
“I think our liberties are considerable and people can act with a very considerable absence of fear, but the ground is shifting—and it’s shifting out of the consequences of fear,” he said. “It’s shifting because fear outweighs our concerns about living in a tolerably surveillance-free society.”
Several participants criticized some politicians for using the “war on terror” for self-serving political purposes.
“There are two things I never could have predicted on that awful morning in September,” said Ben Wizner, litigation director at the ACLU National Security Project. “The first is that terrorists would not succeed in making another major strike on U.S. soil in the decade to follow. The second is that, to a very large degree, many of our political leaders would behave as if they had succeeded.” The result, he said, is that “we have in effect enshrined a permanent state of emergency in our law and politics in which terrorist threats are not contextualized, in which core values can be set aside next to demands of national security.”
A large portion of the conference debate about the war on terror’s impact on international law and ethics focused on the acceptance of targeted killings as U.S. policy, including the apparent expanded use of drone aircraft.
|Yale Law School professor Stephen L. Carter and Kenneth Anderson, professor at American University's|
Washington College of Law
Kenneth Anderson, professor at American University's Washington College of Law, said that one of the lessons of 9/11 is that “we have to address the non-state-actor threat with the use of force in some circumstances. Counterterrorism for us has been a more successful strategy than we probably thought it would be 10 years ago largely through two things: One is the development of technology that has enabled more focused targeting, but more focused targeting through technology that allows us to not fight our way through on the ground through a counterinsurgency war to confront the save haven. That technology, which we think of roughly as our drone-strike capability, is enormously important.”
Anderson said that the current U.S. policy on targeted killings of non-state-actors has been put into place by State Department Legal Adviser Harold H. Koh ’80. “He has essentially put on the table that the category exists, that it’s going to be used, and the United States is not going to regard it as unlawful under international law,” Anderson said.
Perhaps fortuitously, the conference began on the same day a New York Times report suggested the emergence of a split between two camps of lawyers in the Administration over the legality of targeted killings of lower-level combatants. The author of the New York Times report, Charlie Savage, was in attendance at the conference, and gave one of the keynote addresses. Brennan used the opportunity of his own keynote speech to directly address Savage's story of earlier in the day, and Savage later filed a follow-up story reporting on Brennan's remarks -- giving the conference considerably more media attention than is typically received by academic gatherings.
Yale Law School professor Stephen L. Carter said there are genuine risks in the conduct of targeted killings because they are done in secret. “They say, ‘Trust us,’” he said. “But my view is that ‘trust us’ only works up to a certain point. As the war shifts more and more to other drones and other stand-off weapons where we take little risk, two things happen: One is that it drops more and more off our radar screen; two, to the extent that it’s there, we’re asked to place more and more trust in the public officials who have the intelligence that could tell us what led to this particular attack.”
Blum and fellow co-director Benjamin Wittes of the Brookings Institution said they were pleased with the conference. “It was a great group of people,” Blum said. “It’s a group of people who have a real interest in talking to one another. It’s not just a performance. They have a real interest in debating these questions and engaging each other and I think that makes it a much more satisfying experience for everyone.”