Compiled by Sarah Willrich.
Articles
Homeland Security 25 Years Later: Time to Rethink and Rebuild?
As part of Lawfare’s Sept. 11 essay collection, former Secretary of Homeland Security Jeh Johnson argued that now, 25 years after 9/11 transformed how the U.S. approaches homeland security, it is time to substantially reorganize it. Johnson proposed streamlining the many agencies and departments that make up the patchwork system into a single Cabinet-level agency that combines law enforcement, counterterrorism, cybersecurity, and aviation security while keeping certain immigration and disaster response functions separate.
The politically volatile immigration (or, as some would say, anti-immigration) mission has overwhelmed DHS. The component of our government originally intended to “keep us safe” is viewed in many communities primarily as a pariah, an enemy of the people, a heartless deportation machine to be reviled for family separation, masked men snatching people off the streets at night, and the killing of innocent civilians for which there has been no apparent accountability. Mayors and city councils in blue cities don’t want to work with DHS at all, to the detriment of public safety.
Twenty-five years after 9/11, it’s time to rethink homeland security.
The Changing Face of the Department of Homeland Security
Paul Rosenzweig traced how the Department of Homeland Security (DHS) evolved from a border security and counterterrorism initiative to monitoring domestic threats and finally to a sprawling immigration apparatus. Rosenzweig argued that though each shift was often justifiable, together they gradually resulted in a DHS that has lost sight of its original mission and its remaining public support.
So the Department of Homeland Security had to change to focus on a threat now embedded in, well, the homeland. But that brought new challenges. Where, initially, the Department of Homeland Security had looked at the conduct of foreigners, now a more substantial fraction of those under scrutiny were American citizens or lawful residents. The swing of the pendulum now began to have a real “bite” for everyday Americans.
The most salient problem in this change of focus was distinguishing the fine line between speech that is political and speech that is intended to incite violence and radicalization. America’s commitment to free speech makes regulation of violent rhetoric particularly difficult. As the Department of Homeland Security turned its focus inward, it, of necessity, began to redraw that boundary.
Ordinary Origins: How 9/11 Built Today’s Immigration Enforcement Machine
Chinmayi Sharma analyzed the origins of automated immigration enforcement, arguing that today’s immigration system has its origins in data-sharing approaches first conceived after 9/11. Sharma explained how systems once designed to prevent intelligence oversights have since quietly expanded into a massive ecosystem of data on millions of Americans.
And where government systems did not contain enough information, agencies bought it. The Privacy Act governs systems of records operated by or on behalf of an agency, but federal officials treated commercial data resellers’ databases as outside that rule because the vendors served multiple customers. By 2006, 91 percent of reported federal reseller use was for law enforcement or counterterrorism, and ICE was already DHS’s largest customer; agencies commonly bought address and vehicle information—where people were. The scale advantage was dramatic: in one 2005 test, a TSA contractor sent roughly 240,000 passenger names to three commercial providers and received more than 100 million records back. Interoperability could connect government silos; the commercial market could fill the gaps between them.
Justice in the 9/11 Case is Long Overdue
Michel Paradis and Nick Lewin discussed the plea agreements the 9/11 defendants detained in Guantanamo Bay reached with prosecutors, and that the government later backed out of. Paradis and Lewin argued that the agreements were the only chance at justice for both the defendants and 9/11 victim families, and they urged the Supreme Court to review whether the government can withdraw from the agreement.
Without these plea deals, no trial is anywhere on the horizon. It has been a quarter-century since the 9/11 attacks. And even if the military commissions can ultimately limp to the starting line of a trial, immense challenges remain. There is a very real chance that the years of motions and appeals that lie ahead will surpass the years of life these rapidly aging men have left to live. That presents a significant risk that these men will die without a final judgment of conviction—leaving them presumed innocent, at least in the eyes of the law, and denying families some sense of finality and closure.
The Unexpected Emergence of the EU as a U.S. Counterterrorism Partner
Kenneth Propp** **reviewed how, following 9/11, the U.S. and EU formed a series of agreements that altered precedent for transatlantic counterterrorism cooperation and international law. Together, Propp explained, the agreements greatly expanded U.S.-EU data sharing, created the expectation of mutual aid, and solidified the EU as a legal body to negotiate with.
The EU saw these twin agreements as a way of making Brussels more relevant in the transatlantic policy conversation on law enforcement and counterterrorism issues. The United States government agreed with this ambition, as was noted to the Senate: “[T]he U.S.-EU Agreements will enable the strengthening of an emerging institutional relationship on law enforcement matters between the United States and the European Union, during a period when the EU is actively harmonizing national criminal law procedures and methods of international cooperation.”
Through periodic joint reviews of the agreements, the United States, EU institutions and EU member states jointly assess past performance and discuss common implementation problems. While criminal law in Europe remains largely a member state affair, the EU over the years has come to play a genuine role in addressing transatlantic law enforcement challenges including terrorism.
Podcasts
Lawfare Daily: Sept. 11, 2001, 25 Years Later: Katherine Pompilio spoke with five members of the Lawfare team—Julia Curlee, Michael Feinberg, Natalie Orpett, Loren Voss, and Benjamin Wittes—to talk about how 9/11 shaped the U.S. national security apparatus and their careers. They examined what that apparatus looked like before 9/11, which of the legal and institutional structures built in response have outlived their original purpose, and what a younger generation should understand about the world those structures were built to answer.
Videos and Webinars
Lawfare Live** : The Trials of the Trump Administration, Sept. 11: **Wittes sat down with
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