9/11 and the Road Not Taken


by Brian Foley
September 11, 2007

JURIST Guest Columnist Brian J. Foley of Drexel University College of Law says that on the sixth anniversary of the 9/11 attacks, we should remember that the US government has steadfastly refused to allow investigations that might locate individual blame for this massive security failure…

After major tragedies there are two investigative roads to take in trying to prevent a repeat: determining whether people or policies are to blame. Blaming people entails asking whether the disaster resulted from people failing to design or execute a proper preventive policy (“human error”). Blaming policy entails asking whether the policy failed either because the risk was not foreseeable, or because the harm simply cannot be prevented (“act of God”). Both roads should be taken.

After 9/11, however, the nation raced headlong into blaming policy alone. The prevailing view was stated by then-National Security Adviser Condoleezza Rice in May, 2002: “I don’t think anybody could have predicted that these people would … try to use an airplane as a missile, a hijacked airplane as a missile.” But such danger had been imagined, years earlier. For example, in 1994, terrorists hijacked a French airliner seeking to crash it into the Eiffel Tower. Tom Clancy’s best-selling novel Debt of Honor (1994) ends with a Japanese airline pilot crashing his 747 into the U.S. Capitol (pp. 985-86). President Clinton and his staff also understood that an airplane could be used as a missile after a suicidal man piloted a Cessna into the White House lawn, just below the president’s bedroom, in the early hours of September 12, 1994.

That policy, not people, was blamed was also suggested by how, after 9/11, no one appears to have been fired or disciplined, and no one resigned in disgrace. Indeed, some of those most closely responsible for our defense were actually promoted or rewarded. Dr. Rice became Secretary of State. General Ralph Eberhart, the head of North American Aerospace Defense Command (NORAD), which appears to have breached its duty to intercept hijacked aircraft on 9/11, kept his job and was later named head of the new Northern Command as well as NORAD. After having resigned as CIA Director, George Tenet received a Presidential Medal of Freedom in December, 2004.

The prevailing give-our-leaders-a-pass feeling was summed up by Rep. Jane Harman (D-CA), who said on CNN’s CROSSFIRE on December 10, 2001, when asked whether President Clinton shared blame for the attacks, “I think the blame game is a waste of time. This crowd was in power for nine months before 9/11. But I would prefer to say there were good people with inadequate tools. We are fixing the tools now, and we’ll fix the problem.” That the people were “good,” of course, begged what should have been a major question after 9/11.

Blaming policy alone prompted President Bush and Vice President Cheney, the following month, to personally ask then-Senate Majority Leader Tom Daschle to limit Congressional investigation into the attacks. They said that a wide inquiry would divert resources from the war on terror. The House and Senate Intelligence Committees did conduct a combined investigation, but the resulting report, Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, was limited to “review the actions of the Intelligence Community, and was limited to approximately one year’s duration.” Joint Inquiry Report, Part I, p. 1. The Joint Inquiry’s 20 recommendations dealt with policy matters concerning only the Intelligence Community. But how credible are recommendations that come from a committee wearing blinders?

Similarly, the decision to blame policy alone was evident in the preface to the 9/11 Commission’s report: “Our aim has not been to assign individual blame.” The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States xvi (2004). Indeed, the president and vice president initially refused to speak to the 9/11 Commission, as if to suggest there was no need to investigate any officials’ actions. They ultimately did meet with the Commission but insisted on being interviewed together, not under oath, and without having their testimony recorded or transcribed. Former President Clinton and Vice President Gore also spoke to the Commission without taking oaths but testified separately, and their testimony was recorded. These conditions might have compromised the Commission’s fact-finding.

It’s therefore no surprise that the U.S. response to 9/11 was new policies — overall, more power to the president and less oversight from Congress, courts, and citizens. The argument for our yielding such power to the president was based in large part on the premise that 9/11 could not have been prevented using existing powers. The policies, however, do not appear to have been well thought out:

1. Unrestricted, secret surveillance of U.S. citizens. Even if increasing government surveillance power is necessary to prevent future attacks, unchecked surveillance by the Executive, revealed in late 2005, is most likely unnecessary, and dangerous to democracy. The risk of blackmail and abuse that arises when the government can rummage through sensitive personal information of political enemies was revealed in the era of FBI Director J. Edgar Hoover and President Richard Nixon.

2. Guantánamo, which has relegated the U.S. to the category of nations that abuse human rights. The U.S. detention program and its special judicial system make it almost impossible for a person mistakenly accused of terrorism to counter those charges. By making it easy for the government to win its cases, officials can avoid the painstaking investigations necessary to catch real terrorists, which over the long haul can weaken our investigative eyes, ears, and brains.

3. The needless takeover of Iraq, which represents a policy of the president’s waging preemptive war without approval from the United Nations. Congress, major news outlets, and most citizens failed to question rigorously the president’s case for war, which has since been disproved.

The Executive branch has been largely left to itself, not only to carry out existing policies but to create new ones — and to wrap them in secrecy. There has been remarkably little debate about these polices in Congress, and little opposition or demand for involvement or oversight. For example, Congress dismantled habeas corpus rights, which permit testing the Executive’s case for imprisoning people, in the Military Commissions Act of 2006 (rejecting the Supreme Court’s statute-based decision in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)). This summer Congress legalized unchecked electronic eavesdropping power for the Executive of communications between people in the U.S. and overseas callers, in the Protect America Act of 2007. Congress has abandoned its Article I war powers, which require it to decide (and presumably discuss and debate) whether the nation should enter a war. Congress barely debated whether to invade Iraq and allowed itself to be rushed into granting the president ultimate authority. Remarkably, last March, Democrats removed from a bill funding the Iraq occupation a provision that would have required the president to seek Congressional approval before bombing or invading Iran; the House voted down (288-136) a similar requirement in May.

Input from the Supreme Court has been too little, too late. For example, the 2004 enemy combatant cases were unnecessarily deferential to the Executive Branch. In Hamdi v. Rumsfeld, 542 U.S. 507, the plurality opinion by Justice O’Connor stated that in a challenge by a U.S. citizen captured in Afghanistan as an enemy combatant, there could be a rebuttable “presumption in favor of the government’s evidence” that the prisoner is an enemy combatant. 542 U.S. at 534. Other procedural protections, Justice O’Connor wrote, could be relaxed in favor of the Executive, too. Id. at 533-36. That this opinion was poorly reasoned is revealed in what it spawned: the Combatant Status Review Tribunal at Guantánamo, which is nothing more than a kangaroo court, capable only of concluding that the Executive was correct in any given case.

Giving the president free rein does not appear to have made us safer. Many sources report that the danger of terrorism has actually increased since 9/11. In addition to the dangerous policies mentioned above, our leaders reportedly have failed to protect seaports, air cargo, and chemical plants from the risk of terrorist attacks.

Not investigating whether U.S. officials might have failed on 9/11, and rushing to the conclusion that the best way to prevent future attacks was to give them more power, is poor thinking and poor problem-solving. A wide-ranging investigation into the possible causes of the government’s failure to provide security on that day could have helped the nation plug the holes in its defenses. A true fix might have entailed replacing people who failed, not policies. Six years later, the nation can still go down this road, and it should. Indeed, last month, the executive summary of a classified CIA internal report from 2005 was released; the summary suggests that the CIA could have prevented the 9/11 attacks and appears to blame former agency director George Tenet and others. This report might be a good place to start.

Otherwise, our legacy will be that in seeking to prevent a second 9/11, Americans unquestioningly trusted the competence of people whose incompetence may have allowed the first tragedy.

Brian J. Foley is a Visiting Associate Professor at Drexel University College of Law. His article, “Guantánamo and Beyond: Dangers of Rigging the Rules,” will be published this fall in volume 97:4 of the Journal of Criminal Law & Criminology. Contact him at brian_j_foley@yahoo.com

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