Boston, a bright September morning 20 years ago. On the T, thinking about the class I am scheduled to teach in a few hours, the subject of which I can no longer recall. Arrive in Cambridge, walk across campus, enter the building, hail the elevator, key in the office door. No one in sight: No students, no faculty, no staff. A rustling down the hall: A colleague emerges from somewhere and he can see in my expression that, since I left home to cross the river and came to stand before him at this moment, I had escaped learning what he and most Americans now understood: That our collective axis had shifted, and the initial chapter of a long and tragic tale had been written.
Two decades later, on a bright August morning, I’m on my way to a different building on a different campus and thinking about the course in National Security Law that I will be teaching in a week. It has been a few years since I last taught the course, long enough that I need to give serious attention to what we should cover, and how. I know that a number of students who take this class believe the course will center on foreign terrorist threats: US policies and the consequences of the 9/11 attacks are what the students are prepared to debate.
I suspect this iteration of the course may disappoint them. Some will not appreciate that the study of national security law is not the study of national security policy, which is what many of them want to discuss. Like nearly all law courses, at bottom this one seeks to expose students to concepts that will enhance the development of their legal reasoning skills. After law school, some may encounter the particular issues we’ll discuss this semester. Realistically, this course, like many upper-level electives, will serve as another proving ground in which students can hone their ability to apply rules to facts and conduct legal analysis.
I also suspect that the course will disappoint some of them because the threat of foreign terrorism can no longer be the only lens through which national security law is examined. To be sure, the coursebook and materials for the course approach national security law with expansive attention to 9/11, the Global War on Terror (GWOT), and the changes in law that both have wrought, rather than the Cold War and state-actor national security threats that consumed prior generations. At the same time, the book I assigned is decidedly retrospective: Having seen within the past two years a pandemic, an insurrection, and large areas of the country experience the tangible effects of global climate change, it seems reasonably clear to me that the materials in most coursebooks do not relate directly to the threats that are most likely to consume the attention of national security lawyers going forward.
The start of a new semester is always a bit nerve-wracking: New students, new schedules, new cases. But teaching national security law in the shadow of the 20th anniversary of 9/11 makes the task seem more daunting, not least because the anniversary dares us to imagine what might have been different if, 20 years ago, we had thought differently about national security and its governing legal frameworks.
THE CHALLENGE OF ENCOURAGING NEW THINKING
I am reminded by something said in a different context regarding the application of legal principles to contemporary issues. In oral argument before the US Supreme Court in Obergefell v. Hodges, in which advocates pressed the court to consider the constitutionality of prohibitions on same-sex marriage, counsel for the plaintiffs echoed a line from an earlier decision, in which the court overturned statutes criminalizing certain intimate conduct stating: “The times can be blind.”
Addressing the legal issues associated with the new threats posed by global climate change, domestic terrorism, and disease will require my students — and all of us — to move our thinking beyond 9/11 and the war on terror.
To what have the times blinded us after 9/11? Many of my students were young children on September 11, 2001, and the world in which they grew up has prioritized foreign terrorist threats as the signature national security challenge of our time. These students are likely to find the materials in the course addressing War Powers and the tensions between Congress and the president over who may commit the nation to battle — the central concerns of national security law when I was in law school — ancient history, replaced by the potential of terrorists to hijack airplanes and fly them into buildings.
The challenge — my challenge — is to impress upon the students the idea that the basic tenets of the national security constitution remain the same: We have a government of separated and divided powers that at times only imperfectly reflects the will of the people, charged with keeping those people safe. To their credit, after 9/11, leaders in both the legislative and executive branches of government displayed a willingness to use their respective powers to meet the threat of foreign terrorism. Though, for example, open-ended authorizations to use military force replaced declarations of war, Congress has of late sought to curb the scope of the president’s war making authority by revisiting some of the authorizations it issued in the wake of 9/11. The Supreme Court, for its part, weighed in on the outer limits of executive authority in cases like Hamdi v. Rumsfeld, in which the court famously held that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”
None of this is to say that the results of the various legislative and judicial efforts to address GWOT have been flawless, but at least attempts were made to ensure that policies did not stray beyond the bounds of law. Regardless of the nature of the threats to national security that we have faced in the past, the continuing commitment to the rule of law represents a through line in the course, which may be the most important takeaway for students.
PREPARING STUDENTS TO ADDRESS NEW THREATS
In respect to the ongoing GWOT, our commitment to the rule of law has provided policymakers, lawyers, and courts with historical analogues and precedent to guide them in creating the legal infrastructure within which GWOT resides. The threats posed by global climate change, domestic terrorism, and widespread contagion, on the other hand — as evidenced, for example, by the recent and halting governmental response to the coronavirus pandemic — raise different constitutional concerns, about which the historical analogues are fewer and the relevant judicial guidance scattered. To be sure, traditional state actors will continue to occupy our attention. But the legal frameworks for dealing with the threats posed by China, Russia, and North Korea, whether through diplomacy or warcraft, are relatively well settled.
The new threats, on the other hand, will require new thinking. Consider, first, global climate change. The UN Intergovernmental Panel on Climate Change recently issued a report indicating that, at the current rate of global warming, within the next decades the frequency of life-threatening heat waves is likely to increase, along with severe droughts and the extinction of plant and animal species. Climate change is likely to lead to mass human migration as millions of people seek to avoid devastating weather events and the loss of basic human necessities, like water. Global climate change and its effects represent a national security challenge without precedent.
Domestic terrorism is next. The federal government has recently recognized that domestic terrorism poses a greater threat of violence and death on our shores than foreign terrorism; indeed, President Joe Biden has characterized domestic terrorism as “the most urgent terrorism threat the United States faces today.” As Colin P. Clarke has argued, “[d]omestic far-right extremism is poised to become a more diverse phenomenon …, bringing together white supremacists marching in crowds alongside conspiracy theorists, militias and other extremists motivated by gun culture and a deep hatred of government.” While none of this is new, treating domestic terrorism as a matter of national security and not criminal conduct is — and its domestic character raises a host of questions that the policy and legal precedents accumulated during the war on terror do not answer.
Finally, and not least, there is contagion, for which we are only marginally better prepared than when COVID-19 first appeared on our shores in early 2020. As compared to the speed with which the United States would react to an imminent foreign terrorist threat, we tolerated the loss of more than 600,000 Americans to a disease whose progress could have been slowed considerably with a more organized, national response. As Oona Hathaway aptly put it, “[t]his disconnect has revealed that our national security priorities have been completely wrong. It is past time to rethink what national security should mean.”
The next national security crises are not likely to be the purview primarily of military and civilian decision makers in Washington, DC. Further, notwithstanding that Americans came together as a nation after 9/11, however briefly, thereafter the lives of only a relatively small percentage of the population changed in measurable ways. The new threats are unlikely to leave so many of us untouched. This fact, too, should change the ways in which we think about how the law should develop. It was one thing, in the context of the GWOT, to develop legal frameworks whose effects would be felt primarily by non-citizens; and quite another to think about national security as requiring the kind of regulatory regimes more associated with efforts to ensure, say, workplace safety.
WE MUST MOVE BEYOND 9/11
Policy challenges are in many ways shaped by the work of lawyers tasked with understanding and explaining what the law does or should permit. The main legal challenge posed by the new threats is to reconsider the scope of the national security constitution, so that federal and state policymakers will have the ability and discretion to develop the tools needed to address dangers that the constitution’s framers scarcely could have imagined. At a minimum, students of national security law today need to develop an understanding of the ways in which the constitution allows the possibility of coordinated responses to the new threats we face, not just among the political branches of the federal government, but with local governments as well.
Addressing the legal issues associated with the new threats posed by global climate change, domestic terrorism, and disease will require my students — and all of us — to move our thinking beyond 9/11 and the war on terror. Al Qaida’s attacks occurred 20 years ago; the new threats are right here, right now.
Lawrence Friedman teaches constitutional law and national security law at New England Law in Boston and is the co-author of The Case for Congress: Separation of Powers and the War on Terror.
“The Long Tunnel” is a series of articles reflecting on the impact of September 11 and how it has shaped the world we live in today. You can read more in the series here.