Compiled by Sarah Willrich.
Articles
Natalie K. Orpett discussed the torture of detainees following 9/11 and why it still matters today. She explained why existing legal measures have failed to provide justice for victims and accountability for perpetrators. Though the initial shock has faded, Orpett argued that the United States’s failure to confront its legacy of torture exposes a fundamental failure of law—and that the same “pretense of legality” is now enabling abuses against immigrants and other detainees today.
The consequence is that those who perpetrated and enabled the torture have suffered almost no repercussions, and those who were victims of torture have seen no real justice. All of which is itself a clear signal that the law failed. What is the law for, if not to punish wrongdoers and provide redress to those whom they injured?
Of course, that doesn’t help the case for those who think of 9/11 and its aftermath as a historical artifact. To them, I say this: when a legal system has systematically failed to metabolize lawless, unconscionable government conduct, there is something wrong with that system. If we don’t figure out what, how will we combat lawless government conduct in the future—or now?
The 25th Anniversary of the 2001 AUMF
Jack Goldsmith asserted that the 2001 Authorization for the Use of Military Force (AUMF) has outlived its usefulness. He explained that the gradual expansion of the president’s Article II authority has eroded the practical need for an AUMF. At this point, Goldsmith argued, reforming the 2001 AUMF would have little effect and that only Congress can meaningfully rein in the president’s war authorities going forward.
Article II as interpreted by the executive branch thus provides everything a president needs to use force against any threatening terrorist organization, including all of the al Qaeda-associated and successor forces for which the AUMF is now invoked. Put another way, if Congress abrogated the 2001 AUMF tomorrow, the president would have all of the authority he needs under Article II to continue using force against all current terrorist threats around the globe.
Presidents will surely continue to invoke the 2001 AUMF against legacy terrorist organizations for path-dependent and prudential reasons. But they don’t need to, for the legacy organizations, or for future threatening terrorists or terrorist organizations that rise up.
Daniel Byman identified five analytic mistakes regarding 9/11: the U.S. failed to recognize 9/11 as an exceptional event rather than a harbinger of worse attacks to come; officials underestimated how much sustained counterterrorism pressure could diminish the threat; they failed to appreciate how unusual pre-9/11 Afghanistan was as a terrorist safe haven; they overlooked deep divisions among jihadist groups; and they overestimated the U.S.’s ability to reshape political systems in the Middle East.
These mistakes point toward a more sustainable strategy. Policymakers should avoid hyping the threat: Terrorism is real, but not all terrorists pose the same threat. Some are unskilled, and most are focused on local enemies, not the United States. To address the threat as it exists, counterterrorism capabilities should be consistently resourced because expertise, intelligence relationships, and community trust cannot be surged quickly when danger rises.
The United States should also exploit terrorist weaknesses, especially jihadist infighting, and keep pressure on genuine havens through intelligence, cooperation with local governments, support for local forces, and limited strikes when necessary. But not every haven is another 1990s Afghanistan; that was the exception, not the rule.
25 Years of Mass Surveillance is Enough
Cindy Cohn and Bruce Schneier weighed the costs of 25 years of expanding mass surveillance since 9/11 and argued that it’s time to reverse course. Cohn and Schneier explained that the increasing surveillance of every American by the government and, increasingly, private companies is both practically harmful for society and legally unsound. They suggested that Congress should consider comprehensive changes to privacy law.
More generally, ubiquitous surveillance carries a real societal cost. The chilling effects are real and pervasive, and they tend to fall hardest on the most marginalized members of society. Moreover, social progress requires the ability to experiment in secret. It’s hard to imagine a society progressing morally to the point of accepting and legalizing things like marijuana use or gay marriage if the earliest signs of that shift are snuffed out because of overzealous surveillance.
Peter Beck, Seamus Hughes, and Camden Carmichael discussed terrorist recidivism and what can be done to prevent it. They warned that without a comprehensive plan, more repeat attacks are likely to happen. The authors argued that commitment to extreme ideologies is often worsened by social isolation, which efforts to prevent recidivism can inadvertently reinforce.
Research has shown that extremists disengage from violence as their social role and sense of identity evolve. As extremists, their beliefs are intertwined with an urge to act, and taking action is part of who they are. Someone who takes pride in doing everything and anything for a cause doesn’t want to be accused of sitting on the sidelines. But when former extremists find a different identity—through education or employment opportunities, new relationships, or social circles—it provides an opening, allowing them to self-justify disengaging: ‘Why carry out a terrorist attack when I just got a new girlfriend or hired for a job with great coworkers?’
The opposite is true when strong stigma exists against a former extremist, because it reinforces the role of a terrorist as their place in society. When relationships and opportunities spurn someone, they’re likely to shift back to what they found comfort in before, even when it’s as extreme as supporting a violent ideology.
America’s Driver’s License Breach is a National Security Disaster
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren** **discussed a new dark web service that was selling access to identification documents such as U.S. driver’s licenses, the military’s disabling of ad identifiers to prevent service members from being tracked, white hat hacks, and more.
Identity verification services are necessary to help to prevent fraud, but are also a point of vulnerability when security is poorly done. The sheer volume of sensitive data these services handle means that they should be subject to strict regulation and oversight.
We’re realists here at Seriously Risky Business, though, and recognise that there is no chance of swift government action. In the short term, we can only hope that significant financial consequences will help encourage these firms to shore up their security. Law firms are already lining up class action suits against IDScan, but a little federal government attention from the FTC wouldn’t be unwelcome either.
Podcasts
Lawfare Daily: The Trials of the Trump Administration, September 11: Benjamin Wittes sat down with Beck, Anna Bower, Eric Columbus, Molly Roberts, and Roger Parloff to discuss an Afghan legal permanent resident deported less than two months after case is filed in the Alien Terrorist Removal Court, updates in the Grand Conspiracy, a judge allowing the Pentagon to fire Stars and Stripes journalists, developments in President Trump’s attack on mail voting, litigation over the use of SAVE data for elections, and more.
Announcements
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To commemorate the 25th anniversary of the Sept. 11, 2001, terrorist attacks on the United States, Lawfare has published a series of pieces in which editors and contributors examine how 9/11 remains—or doesn’t—embedded in current legal and policy frameworks. Read the collection here.
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