Four panels of Duke University faculty members gathered at the Bryan Center Sept. 9 to consider how America has changed as a result of the terrorist attacks of Sept. 11, 2001.
The second panel of the day, “A Look at Our Freedoms,” answered the question with regard to human rights and the law. Moderated by David Schanzer, associate professor of public policy and director of the Triangle Center on Terrorism and Homeland Security, the panel included law professors Scott Silliman and Madeline Morris and Robin Kirk, executive director of the Duke Human Rights Center.
The administration’s evocation of the “war paradigm” instead of viewing the attack as a crime, shifted the response from law enforcement to prevention, said Silliman. The Patriot Act, passed in October 2001, had a huge impact on civil liberties. “Most striking was the change in electronic surveillance,” he said. Previously, a special court had to rule that intelligence gathering was the primary purpose of the surveillance, while now it can be just “a” purpose, allowing all types of people and their communication on all devices to be monitored. Airport security practices infringe on travel, and the reinterpretation of guidelines on torture damaged the country’s reputation.
“The law changed greatly and we lost more than we gained,” Silliman said.
On Sept. 11, Robin Kirk was working for Human Rights Watch, focusing on paramilitary groups in Columbia and Peru. “In human rights, everything changed” that day, she said. “The U.S .went from being a leading defender of human rights to a leading violator.” An aim of terrorism is to goad the target into vengeance, and the U.S. response, especially in the use of torture, was just that. “There is no loophole for torture in human rights law,” she said, and the U.S. did torture detainees, in Guantanamo, Abu Ghraib and other sites.
Morris thought the most pervasive change was the destabilization of law, so that it’s unclear what falls under wartime law or criminal law. The “War on Terror” does not have an identifiable battleground or end. It raised questions in domestic and international law, such as does a “state have the right to self-defense when attacked by a non-state actor?” The categories of people under the law of war -- noncombatants, civilians, and combatants – are now very unclear. Power has shifted more to the judiciary and executive branches, as there is little new legislation to clarify things. “There is serious danger in not articulating the law and being left with ambiguity,” she said.
During the question and answer period, the panel also discussed military tribunals versus civil trials for detainees and the question of accountability. Kirk pointed out that criminal proceedings were only one type of accountability, that truth commissions are needed to bring problems to light and create measures to prevent them happening again.
How Americans Look at the World
Another panel explored the question “How We Look at the World” since 9/11. Moderated by Hal Brands, assistant professor of public policy, the panel included Peter Feaver and Bruce Jentleson, both professors of political science and public policy, and Charles Dunlap, former deputy judge advocate general for the U.S. Air Force and director of Duke Law School’s Center for Law Ethics and National Security.
The “most consequential” change after 9/11 was America’s willingness to act quickly rather than let problems fester, Feaver said, as seen by the invasion of Iraq, drone strikes in Pakistan, and military actions in Yemen and Somalia.
In the realm of U.S. foreign policy, Feaver said, surprisingly, more stayed the same than changed. Instead of completely rethinking our ideas about the world, U.S. leaders added a fifth pillar – “the war on terror” – to its existing four primary strategies, ballooning the defense budget. Now, the deficit reduction emphasis in Congress may lead to a more comprehensive examination of assumptions that guide national security spending, he said.
Jentleson said the 10 years since 9/11 have been a period of “diversion, distortion and distraction.” The war in Iraq was a diversion, “a war we did not have to fight which we fought under deceptive circumstances,” he said. Bipartisan congressional support for it resulted from Democrats conceding due to “tremendous fear of appearing soft” rather than any real consensus, Jentleson said.
Americans’ view of the Arab world has been distorted, Jentleson said, by black or white/friend or foe attitudes begun under Bush and continued under Obama. This has made it harder for the United States to work with political Islam, which is here to stay and require that we work with leader we don’t necessarily like, he said.
Jentleson characterized the war on terror as a “distraction” in that our intense focus on terrorism resulted took emphasis away from issues that existed before 9/11, including the broken Middle East peace process, global climate change and the economic rise of nations such as China and India. The world has fundamentally changed, Jentleson said: America is no longer at the center, but is part of a constellation of many nations pursuing interests in a many ways.
Dunlap often referred to poll data to assess America’s views of the world. A majority of Americans believe our sacrifice of civil liberties in the post 9/11 era has been “worth it” and are willing to see torture used at times. Half of Americans think it is OK to detain foreigners without formally charging them with a crime, while about 30 percent also find such incarceration permissible for American citizens, he said. We believe “Americans do things for the right reasons and if others don’t see it our way it’s because they either don’t understand it, or they are part of the problem,” he said.
Dunlap urged students in the audience to think about how they personally will react to the next terrorist attack. Will they support further infringement of American freedoms?
“To ensure there is never another 9/11 would be a police state. … When it happens, you need to be the voice of reason,” he said.