Remarks prepared by Scott Horton for The 9/11 Effect, a Harper’s Magazine panel discussion held on September 14, 2011.
A decade is certainly an appropriate point for a survey. To mark 9/11, we have seen a torrent of self-congratulatory assessments. Since the dawn of time, politicians have used conflict and the patriotic impulses that it brings to burnish their own careers and add to their power—this is only to be expected. A functioning democracy, however, needs to take a more distanced approach. It needs to make a careful assessment of what was done, to consider what was effective and what was harmful; to consider where it has unthinkingly departed from its own values. It needs to ask relentlessly whether the haze of war has been used to undermine the democratic process, by allowing national security elites to make decisions in secret about important policy matters that belong to the democratic process itself. This has to be done to provide accountability for wrongdoers, but also to insure that mistakes don’t become a matter of entrenched policy going forward. This sort of careful self-criticism is essential to keeping a democracy strong, and to keeping it a democracy.
With that in mind, I want to take a brief look at how 9/11 has affected major institutions from a macro perspective. I’ll single out just four of them.
America was founded with the ideal of a citizen army on the model of the Roman Cincinnatus, an army that came together in times of peril to fight an enemy and returned to civilian life in times of peace. Most of the Founding Fathers initially didn’t even want a standing army. But that model wasn’t workable. After the Second World War, the Korean and Vietnam Wars, we settled on a different model: of a large, professional military that relied increasingly on technology to establish its superiority. The idea of a citizen-soldier motivated by an ideal of national service stood nevertheless at the center of this model.
Donald Rumsfeld was aggressively critical of this concept. He had a strikingly different vision of how the military should be configured and how it should project force. He used 9/11 to reshape our military dramatically, without making formal proposals or seeking congressional approval. 9/11 provided a backdoor. Rumsfeld and many of his key lieutenants were convinced that career soldiers were in the military because they couldn’t find better work in the civilian economy. Rumsfeld also believed that there was hardly a task that the military performed that couldn’t be handled better—more efficiently and at a lower cost—by a civilian contractor. This is a shameful attitude for a person put in charge of the nation’s armed forces because it disrespects the ideal of national service that lies at the heart of the nation’s military service ethos. But using his contracting discretion, Rumsfeld set out to realize his vision. We see the fruits of this in Iraq from 2003 to 2009, and in Afghanistan today, where the number of contractors now substantially exceeds the number of uniformed military personnel. This experiment has been calamitous. The contractor army is vastly more expensive (contrary to Rumsfeld’s claims), less professional, impervious to congressional oversight and, most significantly, essentially unaccountable when things go wrong and people die. We see that in the billions of dollars of unaccounted-for expenditures involving contractors in the Iraqi and Afghan wars, in the spiraling cases of fraud and embezzlement, and in tragic incidents like the one that occurred at Nisoor Square four years ago this Friday—for which no one has yet been held to account. But we also see the consequences in plummeting morale in the armed forces and surging suicide rates.
The traditional American model of a uniformed military driven by a professional code, bound to uphold the laws of war and inspired by an ideal of national service was solid. There was nothing wrong with it. But one decade after 9/11, I wonder how this model will ever be reclaimed. Although Senator Barack Obama was a sharp critic of the use of military contractors to cover core military functions, under President Obama the rate of transformation has actually accelerated.
When the Agency was founded under the National Security Act of 1947, it was understood to be essentially a civilian intelligence-gathering and -analysis operation, with a relatively modest paramilitary component focused on self-defense and a handful of relatively rare covert operations. It was not understood to be a part of the military, and so its personnel were not trained in the laws of war—they understood, in fact, that those rules aren’t generally applicable to what they do. Although the CIA brushed up against those boundaries repeatedly in its first five decades, it was generally contained within them. 9/11 provided an opportunity for it to spill out of these boundaries, however. The attack was taken as a justification for transforming the CIA into an essentially paramilitary organization, assigned critical military missions in the heart of a theater of conflict during wartime—but demonstrating little concern for the laws of war in the process.
The CIA was used to set up a system of black-site detentions, holding people subject to torture and abuse at secret sites outside of any access to courts and law, for purposes of intelligence gathering; it also set up a system of proxy prisons using certain core intelligence relationships—with Morocco, Tunisia, Libya, Egypt, and Jordan, for instance. In so doing, the Bush Administration replicated a program that American prosecutors labeled a “crime against humanity” in 1946—indeed, the United States prosecuted those who implemented such a system, insisting on the death penalty in some cases and long-term imprisonment at hard labor in others. To his credit, President Obama ordered an end to this system. But its legacy hangs like a cloud over the agency today, driving much of its self-defensive behavior and impairing its vision about key intelligence-analysis issues.
This became painfully clear during the Arab Spring—when unrest rocked the Arab world from Morocco on the Atlantic, to Yemen on the Indian Ocean. U.S. policymakers badly needed a CIA that could evaluate what was happening and give it clear advice. The CIA failed miserably in this process, and the reason is plain enough—it had operationally allied itself with the very rotted institutions in these countries that provoked the uprising. It was too concerned about covering up its own unsavory dealings and advancing the interests of its local helpers to give American officials the essential intelligence they needed in real time. At the end of the Cold War, Daniel Patrick Moynihan looked at the billions spent on the CIA and its consistent record of failed analysis and counterproductive operations and said that all things considered, the security of the United States might have been better off had there been no CIA. That same question could easily be posed today. There are thousands of dedicated and competent Americans working for the CIA, doing their best to protect the nation’s security, but the agency’s string of failings starts on 9/11 itself and continues over the decade that follows. The agency has been radically transformed now, into a military force. But its track record from its military operations makes clear that the military can do them better. And the Arab Spring shows us that even with an investment of $80 billion a year, the CIA provides less valuable real-time information and analysis than a viewer could obtain by tuning into Al Jazeera. For all it faults, the old agency did better.
The NSA was the eyes and ears of the American intelligence community, the agency that culled signals intelligence for useful information. After 9/11, the NSA’s function was transformed fundamentally. An agency created to spy on the country’s foreign enemies suddenly became a massive domestic-surveillance operation, with the power to trawl through billions of electronic communications by Americans—by phone, Internet, and other media. Acting with the support of Justice Department lawyers, it disregarded clear law that made this conduct a felony. After a short-term uproar, Congress enacted legislation that essentially authorized what had once been clearly criminal, and granted immunity to major U.S. corporations that collaborated with the NSA in violation of federal criminal law. How did this enhance national security? The NSA is unable to cite a single instance in which warrantless surveillance yielded actionable intelligence that averted an attack on the United States or a threat to American forces abroad. But the rogue potential of the massive data cache that the NSA has developed is limitless. The Orwellian vision of a state whose roaming eye sees all is nearly upon us. Government lawyers who once held these powers in careful check now work overtime with the mentality of criminal defense counsel, protecting their clients against the chance disclosure of their unlawful operations.
The Justice Department
The Justice Department had an overarching responsibility in the wake of 9/11, which was to ensure that the perpetrators were apprehended, charged, tried, and convicted. That would have established America’s commitment to the rule of law and the righteousness of its cause. The precedent from the prosecutions at the end of World War II, which Presidents Roosevelt and Truman insisted upon and which Robert H. Jackson took leave from the Supreme Court to oversee, shows clearly what American prosecutors could and should have done. But ten years later, this essential task remains unfulfilled. That fact is shameful and exasperating. And it points immediately to the process that deformed the Justice Department, a process of intense politicization. The administration of justice was put on hold. Justice as a sort of partisan political theater took its place. And the independence, professionalism, and integrity of Justice Department lawyers was undermined.
First, its Office of Legal Counsel was tasked to issue “golden shield” opinions finding that torture was not torture, and ensuring that those who used torture and other abusive procedures would never be held to account. Similarly, the DOJ authorized illegal surveillance operations by issuing opinions. These cases show how an agency that once served to protect the law and the Constitution was transformed into a client-driven institution, doing the bidding of its political masters even if that included serious crimes under U.S. law and crimes against humanity.
Second, the DOJ was enlisted in a program to politicize the administration of justice through fear-mongering, the issuance of highly sensationalized claims, and politically staged prosecutions. A good example might be the case of John Walker Lindh, a young American who was reviled as the “American Taliban” in the early phases of the war, who was tortured and abused brutally, with the express knowledge and approval of John Ashcroft and his successor, Alberto Gonzales. Lindh’s subsequent trial was a modern travesty, filled with statements by the DOJ designed to mislead the court about the case and extort consent to a plea bargain from Lindh.
Third, Justice undertook a series of campaigns — the material-witness arrests, detention of out-of-status immigrants, and “forward-leaning prosecutions” like the ones Petra Bartosiewicz describes in the August issue of Harper’s — that reflect Justice’s venture into the realm of science fiction. Like Philip K. Dick’s short story “The Minority Report,” DOJ went after people not because they had committed a crime, but because it believed that they were likely to do so in the future. It became the Department of Pre-Crime.
Under Barack Obama, some ridiculous judicial opinions that advocated torture and justified other criminal acts were withdrawn. But only in a tiny handful of cases has Justice owned up to the injustices it perpetrated in the name of national security. As an institution, the Justice Department has undergone a fundamental transformation. It was once an institution committed to upholding the Constitution and laws of the United States. But today it is committed to doing the will of its clients—not the people of the United States, but a handful of politicians given temporary charge of her affairs. In this way, the department can be a tool for justice, but it is also likely to be a tool for a good deal of politically motivated mischief. And that dilemma lies at the core of the 9/11 effect.