cc >> Good afternoon to all of you.
I'm Margaret Lewis, Executive Director of the Wisconsin
Academy of Sciences, Arts and Letters.
Thank you so much for joining us today for this special Academy
event remembering the 10th anniversary of 9/11.
Today's afternoon of discussion and reflection is part of our
Wisconsin Academy Evenings, a series of free talks by experts
in various fields, held around the state throughout the year.
This fall, we are focusing on the theme of perspectives on a
post 9/11 world. I know this will be a meaningful
day of reflection for us. In conceptualizing this series,
we at the Academy asked ourselves several questions.
We wondered how we have changed as individuals, as a people, and
as a nation since 9/11. We wanted to know more about how
the United States was perceived internationally, about the rise
of global terrorism, and the importance of balancing national
security with personal privacy, about the fractious political
things at home, and the enormous technological changes worldwide.
We'll discuss some of these changes through the course of
today, and most of these points in the first two panels, in the
US, at Home and Abroad in a Post-9/11 World, headed by John
Hall and Don Downs here; and then with Islam and America,
Citizenship and Democracy, with Louise Cainkar, Charles Cohen
and Asifa Quraishi. But we wanted to discuss also
the role of the arts and humanities, and how art
literature and music can in a very special way, help us come
to grips with tragedy. That will be in the last panel
of the day. We'll have a little longer
introductions of our panelists before each panel, but I'd like
to start by just thanking all of you for being here today, for
taking away from family, friends, and work, and for our
speakers, also, for sharing their expertise and experiences
with us, to reflect together on how our history can
contribute to a better present. So thank you all.
I'd also like to thank our sponsors who make our Academy
Evenings series possible. This afternoon's presentation
is made possible by the Pleasant T. Rowland Foundation;
the Wisconsin Alumni Research Foundation;
the Great Performance Fund of the Madison Community
Foundation; M&I Bank;
Reinhart Boerner Van Deuren, here in Madison;
the University of Wisconsin-Madison; and
the Wisconsin Center for the Study of Liberal Democracy.
So, thank you very much to our sponsors.
We'd also like to thank our marketing and communications
sponsor, Good for Business, and our media partners,
Madison City Channel 12; Wisconsin Public Television;
Wisconsin Public Radio, that will be here
for the second session; and our UW-Extension
ICS partners. Thank you all very much.
Since this is a long afternoon, let me just deal with a couple
little housekeeping issues. Restrooms are in the rear,
straight out this door. Punch and cookies will be out in
the lobby following each panel. There will be a 15-minute
break, so we do hope that you'll feel free to walk around a
little bit and connect with each other and share your ideas.
I'm sure the panelists will be glad to be available for a few
minutes after each panel. You can ask them questions
in the lobby, as well as asking them questions after their
presentations. For those of you who are not
members of the Wisconsin Academy, this is a great day to
join. If you fill out one of these
cards, you are also eligible for a drawing for a free membership.
We hope you'll help us by filling those out and sharing
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with you information about future events.
One of the main benefits is the receipt of Wisconsin People and
Ideas magazine, which does give you information about thought
and culture leaders in Wisconsin, four issues.
Please consider joining. Our new development director
over here, Adam Erdman, will be glad to sign you up, so thank
you very much for sticking with me through those organizational
issues. Now we can jump into our
program. Thank you again for those of you
who are just joining us. We are very happy.
I'm Margaret Lewis, Executive Director of the Wisconsin
Academy, to have you joining us today for our series opener,
Perspectives on a Post-9/11 World.
Now, for our first panel discussion, the US at Home and
Abroad in a Post-9/11 World. Our speakers are John Hall,
the UW-Madison Ambrose-Hesseltine Professor
in US History, and Don Downs, the
Alexander Meiklejohn Professor of Political Science, Law,
and Journalism at UW-Madison. John Hall is a Wisconsin
native. He spent over 15 years as an
active duty US Army officer before joining the UW-Madison
Department of History last year. He's a former member of the
faculty at the US Military Academy at West Point,
and most recently served as the chief of the Future Studies
Branch of the US Army's Future Warfare Division
at Fort Monroe, Virginia. He holds a BS in History,
from the US Military Academy and a PhD in History
from the University of North Carolina-Chapel Hill.
Professor Don Downs is the author of the five award-winning
books, and has published numerous articles,
and has been engaged nationally and internationally
in issues of law, politics, theory and academic freedom.
He is also the author of a forthcoming book,
"Arms and the University: Military Presence and the
Civic Education of Non-Military Students."
I'll turn it over now to Don Downs.
I'm sorry, not to Don Downs, to John Hall.
They will each make a brief presentation, and then
look forward to answering and engaging you
with questions and answers. Thank you so much.
Thank you, John.
Thank you, Margaret, for that very kind introduction.
It is a great honor for me to be here with you all today,
and to lead off this very impressive program of speakers
on what is a very sober, yet a very important occasion.
No doubt, many of my colleagues today are going to emphasize
the ways in which the events of 10 years ago changed America.
Indeed, this seems to be the most common recurring theme of
so many of the events, articles, and programs that have
commemorated the 10th anniversary of 9/11.
And with good reason. Undeniably, the United States,
and indeed the rest of the world, are different today than
they would have been absent these attacks.
Yet at the same time, it is easy to exaggerate the change wrought
by 9/11, and to convince ourselves that it signaled
the dawn of a new age or a new world order.
For families who lost loved ones in the attacks or the wars that
followed, this is true. It may also be true for those
who have suffered oppression or discrimination in this country
in the climate that followed, but it is far less true for the
broader American society. Indeed, were I to rank order
the nations transformed by the terrorist attacks of 9/11,
Iraq and Afghanistan would occupy the top of the list,
followed perhaps by Pakistan. That the United States was
profoundly affected by 9/11 is undeniable, but the same may
be said about the effects of Hurricane Katrina, a tragic
event that riveted the nation, engendered significant
bureaucratic reform, and changed the lives forever for
tens of thousands of Americans. But for some 3 million others,
it remains a lamentable affair, worthy of commemoration,
but scarcely affecting the manner in which they live
their day to day lives. Aside from the enduring
inconvenience and occasional indignity at the airport,
most Americans go about their lives today, just as they did
on September 10, 2001. What has changed, then,
is neither America nor its place in the world,
but America's perception of these things.
On September 12, 2001, Americans did not so much
awake to a new world, as they awoke from a dream
that they had nurtured for at least a decade.
Like all peoples, Americans measure social change
by comparing the way things are to the way they think things
used to be. And perhaps to a greater extent
than other peoples, Americans have dreadfully short
historical memories, and firm convictions about our place
in the world. At no other moment in American
history did these traits manifest themselves more fully
than in the decade between 1991 and 2001.
Following America's stunning military success in the
first Persian Gulf War and the collapse of the Soviet Union,
many Americans comfortably assumed that Manifest Destiny
had at last run its course. The ascendant euphoria of that
moment was captured best by political scientist
Francis Fukuyama, who declared the "end of history,"
asserting that American-style liberal capitalism had triumphed
and that the rest of the world would inevitably climb on board.
This was the world that came crashing down around us
on September 11, 2001. And that it was merely
an illusion did nothing to soften the blow.
For if that world was a fantasy, the shock and trauma of its
destruction were all too real. On a massive scale, the United
States endured the national equivalent of
Post-Traumatic Stress Disorder as it struggled to reconcile
the events that had transpired with its collective memory
and understanding of America's place in the world.
Americans neither fully comprehended what had happened
nor what was to be done about it.
Once the identity of the attackers became known, however,
a spirit of vengeance answered the second question,
if only in the short term. As the National Security Council
labored to fit the imperative of retaliation into a broader
strategy, President Bush admonished them not to get
too far ahead of themselves. On behalf of the American
people, he wanted to, in his words, "kick some ass."
They would worry about the future of Afghanistan
at some later point. While we may fairly criticize
George Bush for his strategic short-sightedness
in this instance, we must also acknowledge that his priorities
reflected those of most Americans in those dark hours.
Eventually, the Bush Administration overcame its
lack of strategic vision, although we might debate today
whether or not this was a good thing.
Even while pressing questions about Afghanistan
remained unanswered, Bush's cabinet turned their attention
to the broader issue of addressing the supposedly
"new" post-9/11 world. Neither the American people,
nor their chief executive were inclined to accommodate it.
Instead, the president and his advisors chose to restore
the old order and to preserve the American way of life.
With the stakes defined as such, cost was no object.
At home, the United States created the Department of
Homeland Security, overhauled its intelligence community, and
implemented a surveillance program reminiscent of the
height of the Cold War. Abroad, the United States
launched a covert war against terrorists in some 16 countries
that we know about, and a very conspicuous one in Iraq.
Justified initially on the grounds that Saddam Hussein
possessed weapons of mass destruction, the Iraq War
ultimately and fundamentally rested on the neoconservative
conviction that the U.S provided a model for the development of
other societies. 9/11 did nothing to diminish
their enthusiasm for Fukuyama's "end of history" thesis, but
9/11 did suggest that the United States could not simply sit by
passively and let history run its terminal course.
Instead Americans would have to help it along its way
removing obstacles such as Saddam Hussein.
In the tabulation of the ways in which 9/11 changed America, many
place these developments- the expansion of the national
security state and the launching of two open-ended, foreign
wars-at the top of the list. But it is worth noting that
these measures were undertaken with express purpose of
insulating the United States from change and creating around
it a world that better fit our pre-9/11 conceptions.
What's more, few of these measures represented significant
departures from American traditions or historical
precedents. As the venerable Cold War
historian Melvyn Leffler points out in the current issue of
Foreign Affairs, the so-called Bush Doctrine of unilateral
preemption is in keeping with American foreign policy
traditions of long standing, with antecedents running back at
least through the 19th century. Neither are the kinds of wars we
are fighting novel, and they're certainly not revolutionary.
They only appear so because Americans were for so long
captive to a Cold War conception of warfare predicated on
high-intensity, state-on-state conflict.
We might have expected a reconsideration of this paradigm
following the collapse of the Soviet Union in 1991, but the
Persian Gulf War of that same year seemed to obviate the need
for a critical reassessment. Unfortunately for the United
States, its enemies were not nearly so complacent.
Well into the twentieth century, state-of-the-art military
technology lay within the grasp of revolutionaries and weak
states. Even the quintessential theorist
of guerrilla warfare, Mao Tsetung, regarded a regular army
as essential and postulated that all successful revolutions must
culminate in conventional warfare.
But by the late twentieth century, the sort of
conventional military power required to contest the United
States was beyond the reach of not only revolutionaries and
tin-pan dictators but even some of the United States' closest
allies. The Persian Gulf War made this
point clear to almost everyone but the United States.
While our military walked away from this conflict convinced of
its own superiority, our enemies at last abandoned the forlorn
hope of ever contesting the United States by
conventional means. Inclined to see technology as
the answer to most of our security problems, Americans
were slow to realize the consequences of outclassing all
but a handful of nations, slow to see that the proliferation of
weapons of mass destruction and the rise of terrorism are in
part consequences of America's manifest military superiority.
Secretary of Defense Donald Rumsfeld certainly does not
appear to have grasped the limits of this technical
superiority. A vocal proponent of what was
called "Network Centric Warfare," he believed
that digital communications would enable the United States
to see first, know first, and strike first without the
commitment of large ground forces.
When Army Chief-of-Staff Eric Shinseki disagreed he was shown
the door, and the United States invaded Iraq with only a
fraction of the forces he felt necessary.
The months that followed invalidated not only Rumsfeld's
faith in Network Centric Warfare but also the Army's conviction
that a force trained for high-intensity conflict would be
more than adequate for all of the demands of irregular or
asymmetric warfare. Throughout its history, the Army
had never cottoned to these kinds of missions, but rarely
had it been able to avoid them either; territorial and economic
expansion invited conflict with tribal and subnational groups,
and most of American military history consists of conflicts
like those in Iraq and Afghanistan rather than like
those in the world wars. Only after the frustration of
Vietnam was the Army permitted to foreswear this kind of
conflict on the grounds that it eroded the nation's preparedness
for a conventional showdown with the Soviet Union.
This might have made sense in 1972, but it made none in 1992
and even less a decade later. Belatedly, the Army reacquired a
competency that it today acknowledges as essential to
national security. After ten years of continual
conflict, our all-volunteer force has grown not merely
competent but expertly proficient in this most grueling
brand of warfare. In the process, it has surprised
America's enemies and even itself with its endurance.
The notion that America had no stomach for such wars gained
wide currency both within and outside of the United States in
the wake of Vietnam, and the ability of our military to carry
on simultaneous wars for so long seems to represent some sort of
departure from tradition. Instead, it is again a product
of returning to American military policies of the past.
From its founding, the United States had relied on its regular
military, sometimes augmented by volunteers, to wage the nation's
dirty, little wars against all manner of Indians and
insurrections on the margins of empire.
Sometimes, these wars are quite important to national interests,
other times they are not. But rarely may they be
considered truly vital. Thus, administrations from
Washington forward have been loath to engage popular will in
these contests. In large measure this is because
the size of these wars rarely warrants the cost and
inconvenience of putting society on a war footing, but it also
reflects the fact that a democratic society cannot long
maintain this stance if it has reason to doubt the necessity of
the war. This pattern held through
World War II. But the dawn of the nuclear age
and the coming of the Cold War presented the United States with
a profound new challenge, and it deviated from past policy by,
for the first time in our history, remaining on a war
footing while not actually at war.
As usual, after the big conflict, the bloated armed
forces shrank, but at least after Korea they left behind a
much larger and more expensive residue than in times past.
Significantly, the United States continued to rely on
conscription, supposing that it would not have time to mobilize
American society from square one in the event of World War III.
In part, this was prudent, but it also helped to bring about
the societal crisis of the 1960s.
In the paranoia of the Cold War, American policy makers had a
hard time distinguishing truly vital wars from the routine wars
of empire that predominate American military history.
In the case of Vietnam, they mistook the latter for the
former and made the mistake of sending a conscripted army to
fight what should have been a constabulary war.
By the time Lyndon Johnson and his advisers fully realized
their error, it could no longer be undone.
As the United States painfully extricated itself from this mess
in the early 1970s, both the Army and American society vowed
"never again." In principle, the United States
still plans to draw on the masses of American youth in the
event of a major conflict. But Selective Service
notwithstanding, today's senior military leaders cannot even
begin to contemplate re-instituting the draft.
They were decidedly against the prospect when raised by some
Congressional Democrats in the earlier days of the Iraq War,
and it seems highly unlikely that they'll be willing to
broach it again in the foreseeable future.
When a senior colleague of mine participated in a non-partisan
panel associated with the last Quadrennial Defense Review, he
asked the Chief-of-Staff of the Army: who is thinking about
large-scale mobilization of manpower in the event of a
major conflict? General George Casey replied,
"I'm certainly not." This, it must be admitted,
represents a significant shift from American policy
traditions, as this is very issue kept American military
planners up at nights for the first 190 years of
American history. But like so many aspects of our
current defense policy, the shift is a product not of 9/11
but of the Vietnam war. So where, then, has 9/11
effected significant changes in America's defense policy and
posture? I think that without a doubt,
the most conspicuous case is the rise of America's capacity to
wage covert and clandestine military operations through the
Central Intelligence Agency and Special Operations Forces.
But even this represents a natural evolution of form to fit
function. Despite very valid concerns
about the implications of this development for reconciling
security imperatives with American values, the emergence
of these capabilities was probably inevitable given the
nature of the post-Soviet environment.
9/11 did not create the need for these enhanced capabilities; it
instead made Congress willing to pay for them belatedly.
Exactly how much we have spent over the past 10 years is a
matter of conjecture over classified material, but the sum
is certainly astronomical. The Joint Special Operations
Command grew from 1,800 personnel prior to 9/11
to perhaps 25,000 today, and its parent organization now
represents what is essentially a separate armed service.
If US SOCOM doesn't yet rate independent representation among
the Joint Chiefs, it seems probable nevertheless, that it
will occupy a prominent if not primary place in America's
national security strategy in the years to come.
So, too, for the CIA, which works closely with the Joint
Special Operations Command and has developed an unprecedented
capacity for independent, lethal operations.
Having grown seven-fold since 2001, the CIA's
Counter-Terrorism Center has killed an estimated 2,000 people
with its controversial drone program.
Meanwhile, the CIA's Special Activities Division has engaged
in the sort of combat operations typically, and legally, reserved
for elite special operations forces of the uniformed
military. Indeed, SAD works in close
concert with both these and private military contractors in
operations that erase any significant distinction between
the groups. According to one U.S.
official who recently observed such collaboration, "You
couldn't tell the difference between CIA officers, Special
Forces guys and contractors. They're all three blended
together. All under the command of the
CIA." To many, this is an alarming
development that figures to push the both the formulation and
implementation of our national security strategy into the
shadows and beyond the scrutiny of the American people.
Once it became known that President Obama was eying
David Petraeus as a potential CIA Director, the cry rose from
some quarters that this was an alarming sign about the
increasing militarization of the CIA with supposedly ominous
consequences at home and abroad. Yet I would respectfully submit
to you that if you are the sort of person who is concerned about
the CIA's predator drone program, its secret prisons,
its paramilitary operations, then you should applaud and
indeed celebrate the appointment of a career military officer to
the directorship of the CIA. Petraeus spent his entire adult
life in a profession that takes nothing more seriously than its
oath to uphold the Constitution and the other laws of
this nation. Conversely, the CIA has,
at various times in its history, been distinguished by its
cavalier disregard and even disdain for these same laws.
But if there's a positive benefit to be derived from
imparting to the CIA some of the military's values regarding the
use of force and the rule of law, it must be recognized that
the exchange is going to be reciprocal.
The supposed "militarization" of the CIA, then, is far less of a
problem than the potential de-professionalization of the
military forces that will routinely work with it.
And I fully expect such collaboration to become routine
in the years ahead. The last time I spoke here for
the Wisconsin Academy of Science, Arts, and Letters,
I argued that the United States would not suffer from an Iraq or
Afghanistan "syndrome" as it did following the Vietnam War.
Trying as these conflicts have been, they have neither roiled
the American society nor gutted its military as did that earlier
conflict. I stand by that argument today,
but I must also acknowledge that the lingering economic recession
has accomplished what Al Qaeda failed to do, exhausted American
means to continue the time and resource-intensive business of
rebuilding foreign societies. According to the 2010
Quadrennial Defense Review, this remains an essential competency
of our armed forces, a point reiterated by General Petraeus
when he retired from the army two weeks ago.
But the American people are to be excused their incredulity.
The dividends derived thus far from Iraq and Afghanistan have
been meager, especially when compared with the fruits of the
Arab Spring, which the US has harvested in spite of rather
than because of it's grand democratization projects in Iraq
and Afghanistan. Meanwhile, the CIA and Joint
Special Operations Command hold out the prospect of a cheaper
and more gratifying alternative. Whereas counter-insurgency
operations seek to address the underlying causes of instability
in a foreign state, counter-terrorism operations
less ambitiously aim to pinpoint and destroy the terrorist cells
that reside there. Ideally, the two approaches are
not alternatives but complementary components of an
integrated strategy. Nevertheless, Petraeus appears
to have recognized the allure, the risk, of eschewing
counter-insurgency in favor of a nearly exclusive reliance
on counter-terrorism operations. To an impatient American
public, such a shift has obvious appeal.
Whereas counter-insurgency is a business of years and offers
very little in the way of demonstrable progress,
counter-terrorism operations require no enduring commitment
and occasionally offer spectacular results, such as the
recent killing of Osama bin Laden.
And whereas the costs of fighting a counter-insurgency
are relatively apparent, all aspects of counter-terrorism are
veiled in secrecy. The CIA or Joint Special
Operations Command may occasionally lift the veil to
share with the public their successes, but they will more
often leave it down, obscuring their failures as well as the
human and economic costs of their operations.
Thus, for any administration charged with protecting the
United States from another terrorist attack, the
counter-terrorism approach represents something of a
panacea, promising progress without apparent sacrifice.
In reality, however, the costs have simply been moved off of
the books and beyond public view, which is why we should be
wary of getting too comfortable with this manner of doing
business. The United States has been at
similar junctures before, and in hindsight we can appreciate the
dangers of relying too much on covert paramilitary
operations to safeguard our national interests.
Under the administrations of Dwight David Eisenhower and
Ronald Reagan, the CIA received wide latitude to conduct covert
para-military operations. At the time, the agents involved
were convinced that they were on the front line of freedom, doing
what was necessary to protect American lives and values.
Yet in retrospect we can appreciate how misguided they
often were, and their putative "accomplishments" often did
little more than sew the seeds of future conflict.
Today, CIA agents and special operators are again risking and
giving their lives in the defense of the United States.
I would like to believe that their sacrifices are all worthy,
but there is no way for any of us to know.
Because as the conduct of America's little wars is pushed
into the shadows, so too is the formulation of the strategy that
guides it. What's more, this strategy is
prone to be developed from the bottom up- defined less by a
consideration of what ought to be done and more by the
question: what can you do for me CIA and Joint Special
Operations Command? Thus, we run the risk of
resorting to, what one scholar argues we employed in Vietnam,
formulating a "strategy of tactics": doing what we are good
at in the hopes that the cumulative effects will
amount to a strategy serving America's interests.
But American history provides little reason to believe that
either those on the ground know best or that those directing
covert activities are competent at serving the long-term
interests of the United States. Thus, Washington Post reporter
Dana Priest's concern when, in 2002, Bush's CIA terrorism
expert reserved for himself the right to determine what Congress
needed to know. And thus my own concern when a
Navy SEAL recently said of his comrades, "We're the dark
matter. We're the force that orders the
universe but can't be seen." These men are very, very good at
what they do, but ordering the universe is not it.
The common refrain that unsavory actions are sometimes necessary
to save American lives rarely takes into effect the long-term
consequences of these actions, which are so often penny-wise
and pound-foolish whatever their legality.
And so while we should thank our "dark matter" for their
sacrifices, we should not trust them with our future.
In conclusion, however, I would like to acknowledge that I think
all of the evolutions I have described here today have been,
the main, helpful and necessary. I do not doubt that the United
States is more secure today that it was 10 and even 20 years ago.
Over the course of the past decade, the United States has
transformed its national security apparatus, reorienting
from the Cold War threat of the Soviet Union to the realities of
a world that we could scarcely recognize until September 11th,
2001. This transformation was belated,
painful, grossly inefficient, and at times stained by shameful
excesses. But it was, ultimately
effective. We have paid dearly, in lives,
treasure and honor for our failure to see the need for this
change sooner. So as we pause today to
commemorate the lives lost on September 11, let us not
also forget those who died and have suffered in the decade
that followed. Ten years later, still at war
and mired in a financial crisis, we can nevertheless be grateful
that we at last have a clearer appreciation of the world
and America's place in it. Thank you.
[applause]
I want to start by thanking the Wisconsin Academy
for having this symposium. I hope that it is part of a
national conversation, which I think we are in dire need of,
and have been for a long time. What does one say about 9/11
a year later? There are so many aspects to the
issue, and each one has a different face.
My topic is about law and policy, what we have learned,
what we have not learned. This, too, is a complicated
issue. I am going to provide a basic
framework about law, policy, and strategy in this context,
leaving it to discussion later to maybe fill in some details.
Some things I have to say will no doubt make some of you happy,
some of you less happy. A few years ago I published a
book that left really didn't like and the right didn't
really like, and my friend John Sharpless in the History
Department sat down and said "you must have done something
right." Now, I'm not sure that's the
case today, but we'll see what happens.
In thinking about this event and reading about 9/11, the first
thought that came to my mind is how different things are now
from ten years ago. When the 1990s ended, we had a
budget surplus that the Congressional Budget Office
predicted to be 3.5 trillion dollars.
Perhaps the CBO was naive. Humorist P.J. O'Rourke once
said, giving money to Congress is like giving car keys and
whiskey to fifteen-year-old boys.
Who can say that he was wrong?
It'll reach me that far away? Okay.
The economy was strong, and the country was at peace, even
though there had been some troubling incidents of terrorism
things were going pretty well. It was sort of like the
Roaring '20s wasn't it? Before things fell off a cliff.
Do you remember the good times we had about Monica Lewinski?
Seems like a luxury we can't afford anymore.
Journalist Ron Bronstein asked a rhetorical question in a recent
article I read in Real Clear Politics .
He said, "Has the last ten years been the worst decade ever?"
He was tempted to say "yes," then his historical sense got
the better of him. He had to admit that 1855 to
1865 were not really very good years.
Nor was 1935 to 1945. We tend to think that good or
decent times represent "normalcy," to use that awkward
word that Warren G. Harding concocted, but history does not
offer us these kinds of consolations.
This said, the last ten years have been trying, indeed.
To pick a few items from the Tree of Woe: the rise of a new
kind of jihadist terrorism with which we have had to deal and
which we are still trying to fathom, the fighting of the
controversial war in Iraq, which has borne high costs, as John
mentioned, 4,500 American deaths, 40,000
Americans gravely wounded, and a monetary cost, according to one
source I read, approaching $2 trillion.
If you are looking for sources of our deficit, as well as some
of the discord we've had in terms of our citizenship,
that's one place to look. Also the onset of the
near-Depression in 2008, caused by many factors, and which is
perhaps a re-gathering storm as we speak.
Then there the downward plight of the middle and lower classes.
I saw a quote in a leading national newspaper that said,
As media coverage of the tenth anniversary of 9/11 ramps up
this week, citizen across the United States collectively
realized they would rather think about the terrorist
attacks of 2001 than about what's happened since.
If you want a copy of The Onion, I'll show it to you later.
And each of us has his or her own personal cross to bear.
Seinfeld ended. Thank God for reruns!
And I have a different kind of cross to bear in Madison all
alone, or skull and cross bones as it were, I am an Oakland
Raider fan. It was a lost decade.
Those of you who know football know what I am talking about.
I sometimes I think if the Raiders were strong America
would be healthier, stronger. Would terrorists dare hurting us
if the Raiders were as intimidating as they used to be?
At any rate, addressing 9/11 ten years later, due humility
should be the order of the day. There are so many imponderables.
Do we have definitive answers to some of the most pressing
questions? Did we overreact to the threat?
Yes, and no. Is the battle against al Qaeda
and its allies a "war" or a "criminal law" issue?
A matter I'll return to. I think it's both.
Is the PATRIOT Act a bad law or a good law?
I guess it depends on which part of the complex law you consider,
you look It's got dozens and dozens and
dozens of provisions, some are just very commonsensical, like
money-tracking, and the respective weights you put
on security and liberty. Among other things, I teach
courses in constitutional law, civil liberties, the First
Amendment, criminal law and justice.
And I am sort of known as an advocate of freedom.
After all, I was born in a country that has no
civil liberty tradition whatsoever, Canada.
As I tell my students, in principle, at least, liberty and
security go hand in hand, for as the framers of the Constitution
understood, a sufficiently strong state is necessary in
order to secure the blessings of liberty against its internal and
external enemies. This is the teaching of
political and moral realism, of which I am an advocate.
Look around the world: where you find weak states, you find
individual liberty and dignity under attack from violence and
predation. As Madison wrote in Federalist
51 , if men were angels, government would not be
necessary. But as fallen creatures, we need
government. That said, as Madison and less
sagacious citizens are well aware, angels don't run
government, either. So government, which is
necessary to protect our liberty, can also be a threat
to our liberty, which is a matter of much discussion for a
long time. Our system of checks and
balances, an issue which I will return to later, is
designed to push us back when we stray from the proper balance.
This point is highly relevant to our discussion today for obvious
reasons. After 9/11, the government was
obligated to adjust law and strategy in a principled way to
meet the new security threat without undermining basic
civil liberty. Whether it has done so correctly
is a matter of intense debate. I assume we'll be talking about
it later. On the one hand, we have not had
a major attack inside our shores since 9/11.
This is really no minor achievement, especially when you
consider the incredible damage and costs such an attack would
have had. Journalists I know who have
spoken with intelligence sources in Washington in the
early 2000s, told me that these knowledgeable individuals were
genuinely deeply concerned about what they were learning about
terrorist plans and capacities around the world.
Both the Bush and Obama administrations deserve credit
for their work in preventing further attacks; and given the
responsibilities that come with the job of the presidency, I
have not been at all surprised that Obama has continued most
of Bush's policies. Not all of them.
For example, torture Bush did away with toward the end of his
administration, what some would call torture.
Also he's changes the aggression toward some of the interrogation
tactics. On the other hand, we have
attained this state of affairs by instituting a massive new
security infrastructure that no doubt will be around even
after we win the war on terrorism, if we ever do.
Government programs have a tendency to stay their need.
What we do with this potential Frankenstein is a matter of
great importance. The last thing we want to do is
become a bloody China. There are so many imponderables.
It's easy to agree with such critics as John Mueller, a
professor of political science and international relations at
Ohio State- excuse me, at THE Ohio State University, who
claimed in a recent book that the reaction to 9/11 was
"Overblown." But perhaps that conclusion
stems from the luxury of hindsight, and the fact that we
have not had a major attack on our soil since 9/11.
Why is that? It is at least some significant
extant the product of the efforts of countless local,
state, and federal officials dealing with counter-terrorism
measures, many of them unsung heroes.
As Anne-Marie Slaughter, a Princeton political scientist
and former director of Policy Planning in the Obama
administration wrote in the Wall Street Journal on Friday,
"After a decade without any such attacks, albeit with some
near misses," sometimes we get lucky, don't we? "and
increasingly frequent and invasive security procedures
permeating our daily lives, the costs of our reaction may be
more immediately evident than the benefits.
But another attack would change that calculus overnight."
Now, in perusing others' thoughts, in addition to my own
upon working on this talk, I came upon an interesting
observation. Ten years after Pearl Harbor,
do you know how many really important national commemoration
exercises there were? I couldn't find any.
We just didn't do it. Yet today, events like this one
here are taking place all over the country.
What's the difference? Some rather obvious reasons come
to mind readily. Hawaii is not the "homeland,"
at least was not at that time, and it's a long away.
It's not a media center, like New York and Washington,
and American culture has changed.
I went to college in the late '60s and '70s during the Vietnam
war, to which John alluded. As you know, that's an
interesting time. To use another Chinese proverb,
I suppose. There were no courses on
"cultural memory" or commemorization of any kind.
If you look at the web pages around the country today and in
all the history departments in the land, such courses populate
higher education. But let me pose another
difference that provides a direct segue back into the main
theme of my talk. Pearl Harbor was the beginning
of our engagement in World War II.
We went to war, and we won definitively.
The war was more conventional, except for the scale, type, of
weapons, and the influence of high-powered scientific
expertise, which represented the university working more closely
with the military than any other time in our history.
We knew we were "at war." No one thought we were engaged
in a police or criminal action against the Axis.
It was war, and we were largely comfortable with the government
exercising all the war powers that the Constitution and our
system bestow upon the government in such
circumstances. We used military tribunals to
prosecute enemy combatants who violated the rules of war, we
detained prisoners as long as we had to, and
we understood- no one ever thought about applying a
criminal law model to what we were doing overseas.
The war also had a clear beginning and end, and our
enemies were conventional nation states, who fought for the most
part with soldiers whose identities were known because of
their uniforms and status. 'Soldiers' status, under
international law and the rules of war was pretty clear.
What really wasn't clear was the post-facto liability, Germans
who did the concentration camps and the death camps.
The demarcation of the battlefield was also relatively
clear, as was the line between civilians and soldiers.
And with but a few exceptions, the battlefield was "over
there," not here. As a result of these and other
factors, there was relatively little controversy over the
balance between law and strategy.
There were some notable exceptions to this fact, such as
the internment of Japanese Americans on American soil, a
black mark in our constitutional history.
But the main problem there was that these were American
citizens and we were doing this on American soil.
There were also moral concerns about the atom bomb
which is a matter we can talk about later.
issue did not concern constitutionality.
The situation unleashed by 9/11 was quite different however,
in virtually all of these respects, creating conundrums
for law and strategy. We encountered a "new kind of
enemy," at least in terms of recent memory.
If John's correct, we've had more in the past than we've
understood. And a "new kind of war,"
to use a phrase that I and a co-author, used in a
Wisconsin Law Review article. Consider these factors, the
enemy is not a nation state, but rather stateless.
The new enemy soldiers disguise themselves as civilians, thereby
constantly violating established rules of war.
The enemy specifically targets civilians, first and foremost.
Indeed, everyone in this room is considered and enemy combatant
by them. There is no clear ending point
to this conflict. There will be no formal treaty
marking the end of the war. There will be no pretty pictures
to put in our textbooks and to adorn the walls of our homes.
The battlefield is virtually everywhere, there are no clear
boundaries to it. The enemy's rational motivation
is not amenable to the logic of "deterrence," which was
the ultimate strategic logic of the Cold War.
Despite its pledge to "bury us," in Khrushchev's famous words,
the Soviet Union did strategically act according to
the rational state actor model, like other nations in the world,
as Stanford political scientist Alexander George pointed out in
a influential 1968 essay. This meant that our relations
with the Soviets were both based on confrontation, as well as
cooperation, as seen in the arms treaties that we enacted
and adopted with them. But al Qaeda and similar groups
famously do not fear dying, and they have no state to defend.
In my view, the realization that that al Qaeda was not subject
to the traditional constraints of deterrence was the main
reason we were so fearful in and confounded in the wake
of 9/11. I really like John's reference
to post-traumatic Stress disorder.
I think that really- If there's such a thing as a collective
PTSD, I think we were very close to it.
How do you deter such people? How do you locate them to
retaliate? And what if they are able to
attain more frightful weapons? To be sure, terrorists' ability
to develop or deploy weapons of mass destruction is
hypothetical and speculative as we speak, but who doubts that
they would use them without scruples if they had the
capacity to do so. This is one reason that Bush,
and now Obama, had "taken the battle to the enemy," in
order to fight them that way. As we speak, bin Laden lies with
the fishes, and Khalid Sheikh Mohammed is a ping pong ball
being slapped back and forth between two players names 'Civil
Trial' and 'Military Commission.'
Most importantly, for law and strategy is, it was also
unclear from the get-go whether the confrontation with al Qaeda
constituted a "national security" problem or a "criminal
law problem." If we are engaged in a "war" and
confront a national security crisis, then the executive
branch in the government are given broader powers
under the Constitution to fight the enemy and to take stronger
measures to prevent, not just punish aggression.
Our legal tradition has always given the president, and the
government, more power to conduct national security
operations, even upon our soil, as the well known FISA,
compromise and law, of the mid-1970s indicates.
I'll have more to say about that in a moment.
This is true for all nations. It's almost like a
law of nations. And the protections of civil
liberty for those defined as enemy combatants in war will
always be less extensive than for ordinary criminals.
Such things as longer involuntary detainment, the
reliance upon military tribunals to adjudicate war crimes, the
use of less protective interrogation techniques,
including the absence of Miranda rights, and lower protections
against searches, seizures, and surveillance are allowable
within constitutional limits. when it comes to national
security targets, not to regular citizens.
If we are dealing with "criminals" however,
all these protections are much stronger.
In a related vein, the legal status of al Qaeda was unclear.
Al Qaeda is subject to, and I use al Qaeda as sort of a term
for all sorts of groups for convenience, are they subject to
the same protections as traditional of regular enemy
soldiers who fight for recognized nation states?
Even though they refuse to abide by the rules of war?
The protections afforded by the rules of war and Geneva are
designed partly to provide incentives for soldiers and
states to abide by the rules. But what if the enemy disavows
the rules of war in all respects?
Must we still give it the benefit of those rules or
protections? recently, former pattern
general, former federal judge, Michael Mukasey, addressed this
issue. Let me read what he said.
He said, "Perhaps most important, in a context of a
wider war, civilian trials for terrorist violate my moral
sense. Think about the lesson.
If you follow the rules of war, which is to say, you wear a
uniform, you follow a recognized chain of command, you carry your
arms openly, and you don't target civilians, then you can
be held until the termination of the hostilities.
If you violate all of these rules, we've got a better deal
for you. We'll give you a trial at a
platform in an open court and the possibility of an acquittal.
That's a perverse kind of logic."
If we extend regular criminal law protections to al Qaeda,
we're giving them more legal protections than we give our own
soldiers when they are court marshaled.
So it's a conundrum. It's quandary at that level,
okay? So 9/11 represented a new
kind of national security threat, at least in memory,
and a dilemma for the balance of law and strategy.
And this time the threat had come to our homeland.
The closest parallel was the Civil War, in which Lincoln
had to deal with military and security threats at home.
As is well known, he stretched the Constitution to its
limit, sometimes beyond the limit, in order to win the
war and secure the nation. But Lincoln's actions were
inherently controversial, justifiable so, because this
stretching of the Constitution took place inside the country,
where the domestic Constitution normally sets strong limits to
what the President and the government may do to enforce
the law. When the threat to national
security by foreign powers or forces takes place inside the
country, we have a constitutional dilemma.
Before 9/11, we dealt with this dilemma, at least in the area of
surveillance, by electing the FISA compromise, which gave the
government more power to engage in the surveillance of
individuals inside the country who were believed to be engaged
in subversion linked to foreign powers.
FISA is the Foreign Intelligence Security Act.
Such surveillance is still necessary to go to the FISA
court, a special court created for these purposes, and get
authorization. There is judicial review, but
it's more permissive of federal action than in normal criminal
action. FISA represents a compromise
when it comes to national security issues that take place
within our borders. It's distinguished from regular
criminal process. Unfortunately, the Bush
administration eschewed respecting FISA when it did NSA
surveillance, which it backed off of eventually after being
caught by the press. That's indicative of how it
pursued many of these matters. The situation after 9/11 called
for new ways of thinking, as I said.
Jihadist terrorism posed new problems for national security,
new technologies such as the Internet, disposable cell
phones, encryption, and other devices were being used by
terrorists to plan attacks. We also had what the 9/11
commission talked about, the wall between domestic
surveillance and law enforcement and that involving foreign
intelligence. They couldn't speak to
each other. That's one reason we couldn't
get the full information on the plate that could have helped us
prevent what happened on 9/11. That reform has come about as
well. The law has shifted.
This should not be surprising, because public law always has to
shift to truly valid national necessities.
Even in domestic criminal law, 4th Amendment rights, 5th
Amendment rights, 6th Amendment rights, have tended, within
clear parameters to fluctuate back and forth depending upon
the crime situation of the United States.
The same thing applies to national security.
This is one reason, for example, the need for a flexible
Constitution is often called the "Living Constitution."
Which is something that most Liberals have endorsed in the
past. In dealing with terrorism, law
must be cognizant of strategic need, but strategy must also be
cognizant of fundamental legal principles.
As constitutional scholar Phillip Bobbett has written,
"Law and strategy must inform one another."
Now, though we have struggled to find our way in this domain,
I often think of Churchill's famous quip that, "You can
always count on America to do the right thing - after they've
tried everything else." I'm not sure we've reached the
right thing yet, but we're groping in our own way.
But I think we've fallen short. This is due to a failure of
leadership and citizenship. The blame, I think, is widely
shared and non-partisan. It includes the Bush
administration, the Obama administration, the Congress,
civil liberty groups, the media and citizens more generally.
In some respects, this is understandable because change
is hard. And the battle against terrorism
has coughed up concepts and processes that legal scholars
and others had not addressed for a long time.
We just really weren't prepared to handle it at the time.
A personal anecdote, I think, is indicative.
Shortly after 9/11, it was early October, the Bush
administration started planning the new military tribunals or
commission to try enemy combatants.
I got a call from Wisconsin Public Radio to do a show on it.
I said, "military commissions, what are those?
I was a great constitutional scholar, right?
Yeah, I'd heard about them, but I didn't know much about them,
so I go to my shelf in my office and I have all these
con-law books, all right? They're there for two reasons,
one for knowledge and also to impress students.
I looked in the books. There was hardly anything about
them. These are constitutional law
books written by prominent national constitutional law
scholars. So I called some people I know.
They didn't know much either, including my friends in the law
school, all right? So at least I wasn't alone in my
ignorance. But the more I looked into it, I
realized that, historically speaking, when done properly, in
the proper domain, and the proper kind of defendant,
military tribunals are a standard way of doing business.
They are subject to constitutional constraints.
The supreme court has pushed those even further in the war on
terror, but there are not, per se, uncalled for.
So the Bush administration had a case for them.
The problem is how it proceeded to set them up and
defend them, which posed substantive, procedural, and
political problems. Though the Bush administration
had a case, I think it failed to make a reasoned argument to the
public, and with a few exceptions, it kept congress out
of the loop. Congress was involved with the
Patriot Act, but that was passed very quickly after 9/11, almost
in a state of panic. The Detainee Treatment Act,
congress got involved with that. The Military Commissions Act,
2006, five years later, congress finally started getting involved
in that. The new, more recent laws
involving surveillance, congress finally got involved.
But guided by the president's office of legal council's advice
the Bush administrations said we don't really need congress's
input, because Article 2 of the constitution gives the president
the unitary and exclusive power to act as Commander and Chief to
protect the country. We don't need congress.
And we don't really need to take the case to the people that much
either. We're just going to do it.
What we needed is what I would call the rhetorical presidency,
to borrow a term from a political scientist whom I know,
named Jeffrey Tulis. He says the president's role is
sometimes is to act as an instructor, a teacher.
Here we had this conundrum involving and important issue.
It was incumbent upon the president to lead in teaching
us. But Bush didn't.
Partly, he's not the most eloquent of guys, though he has
had his moments, like in the speech in congress after 9/11.
In part it was because the presidency had a dogmatic theory
of it's power. Therefore it did not reach out
to build a consensus. I think this also hurt policy
because it mean there were less checks and balances so that the
policy that emerged was more questionable.
By refusing to build broader political consensus for its
policies, the Bush administration created policy
that had to end up being checked by the courts.
Courts don't like to have to get involved in this because A, they
don't have constitutional war powers, that goes to congress
and the president, and B, this is a terrain that they feel is
sort of beyond their input if at all possible.
This left the administration behind the 8 Ball
Witness the confusion we are still encountering over military
tribunals and surveillance. And the administration's
approach has created more domestic discontent and tension
than, I think, was necessary. All right, I don't think Obama
had done any better. He's carried out most of Bush's
policies, as I've mentioned. But he would rather avoid
talking about it, than instruct us as to why he's doing what
he's doing, lest he lose the support of his base.
And I think he's gotten somewhat of a pass from the press because
he's a liberal Democrat and he is not going to be criticized as
much as Bush was for these matters.
Neither one has acted as a rhetorical president in this
particular area. Then there are the
civil liberty groups. Excuse me if I paint with too
broad a brush, but from the get-go, most leading civil
liberty groups contested any reform of law that deviated from
normal criminal procedure. All terrorists should be tried
in civil courts, any change in 4th Amendment law
dealing with warrants and national security issues was
wrong. Most of these groups didn't even
know about the FISA act when they came to judge
administration policies. Civil liberty advocates have
long supported the idea of a "Living Constitution" that
allows for the expansion of civil liberty, but they seemed
unwilling to countenance a "Living Constitution" when it
comes to the adjustment in governmental power.
This is not the first time that we've have witnessed hypocrisy
in constitutional positions. Let me conclude by mentioning a
couple other things. Congress also shares some of
the blame. It has allowed the president to
do this, to a large extent. Why suffer the burden of such
negotiations when there are elections to be won and whiskey
and car keys to tend to. The Supreme Court has long
maintained that presidential power is stronger when backed by
Congress. For a variety of reasons we can
discuss, but Congress has eschewed this responsibility.
Let me conclude by quoting from a book I encourage you all to
read. It's by a guy named Benjamin
Wittes, a famous journalist. He's written for The Atlantic
and The Republic, and other major publications.
He makes a case for principled, strategic and legal
adjustments to deal with the type of threat posed by jihadist
terrorism, and he is critical of the Bush administration for how
it handled the issue. His book came out right as Obama
was taking power. He said, The broad mechanism
for decision making about the legal structure of the war has
consisted of executive actions followed by review in the
courts of the validity of those actions, invariably contested
under extant statutes and precedents.
The absence of the national legislature from some of the
most significant policy discussions of our time has
brought about deleterious consequences at a number of
levels. At a theoretical level, it has
been unfortunate because Congress has its own
independent duty to legislate in response to problems that
arise in the course of the nation's life.
After all, America's constitutional design
presupposes that each branch of government will assert its
powers, that those powers will clash, and that this clash will
prevent the accumulation of power in any branch.
Yet in the war on terrorism, Congress has done nearly the
opposite of countering the executive's rather considerable
ambitions. It has run from such powers.
This has lead to more poorly formulated policy, leaving the
courts to be the ultimate umpires in this matter and they
have often had to rely on some Civil War precedents and World
War II precedents which were ill-equipped to deal with the
problem that we face. I'll conclude with that.
I have a very hard time knowing how to conclude a speech, so I
usually just stop. I'm stopping.
[applause]
Now our two speakers would be glad to take your questions.
Jason Smith here, our communications director,
does have a mic. Please wait until he brings the
mic. Either he or Ronnie Hessler will
bring you the mic so that your question can be heard by all,
and it will be recorded properly.
We'll let you address directly, the speakers and I look forward
to a very lively discussion. Thank you again, all for coming,
and for your reflections and questions.
My name is Ruth Simpson. I'm from Madison.
I think you, sort of, started it out correctly in terms of, was
the terrorist's attack an act of war or was it a crime?
You're right, I think it was both.
But in terms of who pulmagated it, obviously they weren't
soldiers. They were civilians.
And we know that both at the state level and at the federal
level that murder charges have been brought against all of the
terrorist and al Qaeda. So the question, I think, in
terms of the criminal law aspect is very interesting in terms of
whether it should be in a military tribunal or in a civil
court. I think that is a- I guess, from
my point of view, looking at our country in terms of its belief
in a public civil and criminal justice system, that that's an
important feature. I'm just curious as to how you
put those things together. >> That's a very good question,
and it's a complicated question. Part of it is, you know, what
works. The fact of the matter is that
the vast majority that we've had, a couple of hundred
prosecutions of terrorist since 2001, and virtually all of them
have taken place in regular criminal courts.
They've been pretty low profile. The danger with a criminal court
is it's openness. When Mukasey was a federal judge
he was the judge in the case of the 1993 bombing of the World
Trade Center. Which could have actually, if
that bombing had been successful it would have maybe brought one
of the buildings. It blew out five stories.
We tend to forget how close we came to dodging a real 9/11 back
in 1993. The jury in that case had to be
guarded by secret service agents for weeks and weeks after the
trial. Nonetheless, their identities
were still kept private, or kept secret, but the day of the
verdict the press showed up at two of their doorsteps to
interview them. The press found out.
That was also the case in which bin Laden found out that we were
aware of him and what he was up to.
He declared war on us, right, 1996, 1997.
I remember sitting back home watching CNN.
I'd just got done watching a football game or something.
I was in a good mood. My team must have won.
All of a sudden I see these guys over in the Middle East with
these- you know, running around, shooting fake American targets.
I went my god, I hope we're going to do something about
this. He declared war on us, but he
didn't know that we were all that aware of him in 1993 until
he was somehow able to get a hold of some of the records from
that trial. There is the problem about leaks
in this area. I do think what happened on 9/11
was an act of war, because it was targeted against key
security centers in the United States, financial and national
defense, and it was intended to be that.
That doesn't mean we have to prosecute it purely as a act of
war. We need to be judicious.
The first supreme court case dealing with military tribunals
was 2004, it was the Hamdi case vs. Rumsfeld.
The supreme court said that it's okay for the court to set up
these tribunals, but the way it's done it is bad.
So they sent it back to the administration and said you've
got to provide more due process. One reason for that was the
majority or the pluralities decision in that case aware of
the fact that, well, this is a different kind of war.
If it is a war, it's a different kind of war that
poses a lot of danger to our civil/criminal law system
because of the spill over effects.
So if you're going to have tribunals, we want them to be
subject to judicial review. We want the to be subject to
certain constitutional principles.
To reinforce my point, the court didn't know where to get the
standards for such tribunals. So it looked to an old welfare
rights case, a 1968 case, that had to with, if you're denied
welfare you are entitled to a hearing under the constitution,
due the due process clause of the constitution.
There are certain standards that must be met in that case.
So it applied a welfare termination case to the case on
terrorism, and Scalia pointed out in his dissent in
that case, he said that the president did not have the power
to do this in that particular case.
He said this is an inappropriate model.
It just doesn't fit. so we have to find a way from
something else. Yeah, I think we need to- the
war against terror, it's military, it's soft power, it's
intelligence and it has to be done judiciously, but I think
the government needs to reserve the right to have military
tribunals when it thinks it's the smartest thing to do.
Hi, I'm Ann. I'm from Madison.
I'm glad to hear you use the term 'soft power' because that's
kind of where I wanted to go next.
In all, either of your remarks I've heard a lot about the U.S.
but I haven't heard one mention, maybe this is because I'm
reading a lot of Tony Judt at the moment, may he rest in
peace, the former NYU professor who died fairly recently, I
think it was last year. I guess I'm really curious about
the role of Europe in this. I mean, this is a country, or a
continent, I'm sorry, not a country yet, who we had
relationships with, where we have ties with and where there
are serious questions about it's role and it's ability to be a
continent that we can work with, that has it's own
domestic, internal domestic issues about privacy, all the
things that you're talking about with their own constitutions,
that can sometimes seem to be at odds with our own.
So I guess I would like to look a bit more externally about what
those relationships look like in terms of how the United States
interacts with our historical allies on these questions in
terms of prosecution but also that soft power that you just
mentioned. >> I'll let Don, obviously,
handle the legal aspect of it. I think that part of the shift
that we are going to see going forward in terms of working with
allies- I mention in my comments that unilateralism of the Bush
administration is not necessarily anything novel when
it comes to American history. The manner in which the U. S.
behaved unilaterally is slightly different, but there is
increased pressure by the later parts of the Bush
administration. He was contrite, and allies all
of the sudden became indispensable going forward.
I think that for future U. S. military, national security
strategy allies are going to remain at the forefront in terms
of being more effective. Michael Hammonds recently
written that what we've seen in Libya does not provide a model
for U.S. operations. I think what he meant was that
is shouldn't provide a model, but I think it very well will.
You can see there, the United States leading from behind, as
some have put it, ad relying more extensively on it's allies,
in particular when it comes to Europe.
The other thing that I think is going to happen is the United
States will continue to work, not just with it's European
allies, but I think the trend toward building partnership
capacity in other nations is going to continue forward.
The less ambitious version of counter-insurgency operations.
Where you're not going into an incredibly fragile state on the
verge of collapse, but you're going into states that kind of
agree with that neo-conservative vision that, yes, the United
States provides a model that we would like to emulate.
Will you help us do that? That's where the role of
America's soft power comes into play, as well as, I think, the
conventional military is going to have to come to terms with
the fact that it's going to need to develop a more serious,
dedicated capability to help train the military forces within
those nations. I'm not getting at the most
important part of your question. I'll let Don take over.
I'm not sure, the last couple of years of the Bush
administration, Condi Rice, started exercising more
influence. Rumsfeld was out.
She was much more concerned about having more cooperation
with allies than Rumsfeld and other people that influenced
Bush before that. Yeah, the man who used to be
the head of the security studies program at MIT, Barry Posen,
wrote an article back in 2007 or 2008 in which he called for
America to step back somewhat from it's role in the world and
to rely more on our allies. He said partly, if we step back,
for example in the Middle East, then Israel might have to take
on more responsibility for it's own defense.
They're already pretty good at that, but even more so.
He mentioned that in other areas around the world that we would
not retreat, but we would step back somewhat.
I think it all boils down to the strategic question at hand.
The fact is, for the most part, the Europeans, they don't like
to fight. We are not unwilling to fight.
We have a fighting military. If the situation definitely
calls for counter-terrorism strategy that does depend upon
military might, there might be dangers in us leading from
behind. I think it needs to be a case by
case determination. All of this is going to end up
being influenced by the debt crisis that we have.
We can't afford to do some of the things we've done in the
past. We're moving toward more Special
Ops because they're cheaper and more direct.
But I worry about that too. It's not like, if we leave the
world it's going to be filled up with good guys.
Right? We've got China already trying
to exert as much influence as it can over the South Sea and of
course it could go further than that.
Iran is already making inroads in the Middle East.
I'm an international relations realist.
At the same time I'm a civil libertarian.
Going in back in my talk, my big concern from the get-go here
was, if we don't set up a special set of rules for dealing
with these guys, if we do it through the criminal law
system, then we're going to end up compromising our criminal law
system in order to get these guys.
I that sense, there does kind of need to be a kind of wall
between domestic law enforcement and the enforcement involving
national security. Otherwise we're going to
compromise the civil liberties that all of us have.
That means less civil liberties for terrorists, but that's a way
of us preserving ours. >> Good afternoon.
My name is Alan. >> Alan and I had a debate ten
years ago right after 9/11 whether or not we should go into
Afghanistan. It was a good night.
Yeah, it was. We could still carry of the
debate. I want to come back to this
question of the- I have a comment and a question
for Professor Hall. I want to come back to this
question of the function of commemorations.
That is, commemorations, especially in the nationalist or
patriotic sense, have long been used to mobilize public support
and public opinion. I raise that because, what I see
is one of the significant changes in the last ten years,
is the narrowing of the discussion on U.S. role in
the world. Say, 15 years ago, this panel
might have included someone at the Wisconsin academy speaking
of the Wisconsin School of U. S. Foreign Policy.
That school that talked about empire as a way of life.
That school which stated that the United States loves to
portray itself in the world as the reluctant, defensive player
when in actuality it's been part of an empire with national and
transnational motivation underlying that.
I only raise that because I think right now, that the U.S.
public is behind the curve. As this panel illustrates, we're
still locked into the discourse on terrorism when in actuality,
if you think about it, once you start thinking about it, the
whole discourse on the war on terror, the G-WOT,as the
intelligence and Pentagonese used to frame it, has
disappeared in actuality, and it is being systematically
replaced by the long war. The strategic planners are
talking about the long war, the preparation of the U.S.
public for an unending, permanent warfare for the 21st
century that doesn't necessarily have anything to do with
combating terrorism. Enough on my comment.
Professor Hall, very interesting, and of course I'm a
wanderer on the Internet. Thank you, I don't even belong
to the Spartacus League. Sorry.
In your introduction you were introduced as formerly of the
Future Warfare Division at Fort Monroe.
I'm curious, one, how your thinking's been shaped by that
experience. Specifically, I'm curious to
know if you've actually been in Iraq and Afghanistan, and what
that has meant in influencing and impacting your role now
as a public intellectual and historian.
Thank you. >> Sure.
Let me begin actually with a comment in response to the
comment, and then role that into the answer to the question.
That is that, I'm guessing by the nature of the comment, you
did not detect any shades of the Wisconsin school in my comments.
Although, if we look harder at the transcript I think that you
will see that they are there. Thus my emphasis on these kinds
of wars not being nearly so novel as a lot of people want
them to be. Americans tend to remember and
commemorate the wars that all Americans fight in.
Which are the big wars. Which are the wars that are more
easily defended in terms of their legitimacy, their justice.
I always tell my students, there are three criteria by which you
can evaluate a war. Was it just, was it necessary
and was it well executed. I sometimes, in my lecture
course, offer them a challenge, identify for me three American
wars that meet all three of those criteria.
I have yet to have anybody come back with three wars that meet
all of those criteria. Now that's not an unduly cynical
view of it, I don't think, but it is a realist's view of
America's historical role in the world and the way that it has
remembered that. First, I have not been to Iraq
and I have not been to Afghanistan.
So my perspective is certainly limited by my lack of a personal
visceral experience from what has happened in those conflicts.
On the other hand, there's some things I won't begin to try to
tell people because I don't have a perspective on it.
I have nothing worthwhile to offer.
I don have a different perspective though, that has
more distance and perspective, which I think has it's own
value. The time I spent developing Army
future capabilities has actually increased in some regards, my, I
don't want to say skepticism, but it's made me a more
appreciative critic, if you will, of the way we build
capabilities. So you're talking about the long
war. One of the things I did learn
there is that certain cliches and expressions are very much
de jour and then when there's a change of command somewhere,
some new general doesn't like that.
You're not allowed to use that term anymore.
Sometimes they're downright silly.
For instance, 'battle command' has recently been outlawed.
It's now 'mission command.' Because some general didn't
care for it. I often wondered what would
happen if medical professionals and legal professional did the
same thing. Every time they got to a
position of responsibility they told people to change the
professional jargon and replace them with new expressions.
But the long war has been replaced for some time by 'an
era for persistent conflict.' What I have always pointed
out, as a historian of America's earlier irregular conflicts, is
that there are two kinds of American military history,
pitched conflict and persistent conflict.
That's all there has ever been in American history.
Eras of persistent conflict punctuated by major wars.
Americans only remember the major wars because, outside of
Vietnam, they don't send their sons and brothers and husbands
to go fight and die in wars in an era of persistent conflict.
It is the business of the military to argue for resources
and money to prepare for the threat environment that they
see. They're not doing their job if
don't do that. On the one hand I don't think
that this era of persistent conflict requires the kind of
investment of resources that some claim that it does.
Some people, it's really rather remarkable, what the Cold War
has done in terms of acculturating a defense
sub-society, an epistemic community in Washington D.C.
that includes the military, it's the think-tanks.
At the end of World War II the armed forces went back down to
almost nothing. It bumped back up again after
Korea and after the Soviet Union got the bomb.
But what didn't go away was the defense intelligentsia.
That's a lasting consequence of that war, and it lends some
credibility and some authority, some academic clout to the
argument of the people in uniform that say "The sky is
falling, the sky is falling,give us these resources or it's going
to be calamitous." The military had argues the
sky is falling since the foundation of the republic.
That is partly their job. What we need is what Don has
argued for, responsible debate among America people, their
elected officials and, god willing, a rhetorical president
about what we really do need and how we're going to pay for it.
Sometimes it's hard to be rhetorical though, because these
are difficult moral issues. In preparing for today I read an
essay and they quoted Justice Black, a great civil
libertarian, but the author of the Cora Matsu case upholding
the Japanese internment during World War II in the country.
Interestingly, that case eventually became a real
pro-civil liberty case because of the standard that he set in
it which ended up going the other direction in the future.
Someone asked him, could you constitutionally authorize truly
depriving someone of his or her constitutional rights in the
name of national security. He said "Yes, we would, but we
couldn't say it." In a world of these kinds of
conflicts, sometimes we have to do things that are
uncomfortable. Lincoln understood that.
Lincoln threw newspaper editors in prison simply for criticizing
things he was doing, things today that are totally protected
by the First Amendment. We've come a long way when it
comes to free speech, thank god. It's easier to avoid talking
about these things. That means, John was talking
earlier about the creation of this new infrastructure of the
military that's not amenable to a public view and to the
standards of law. It's operating on it's own.
It's sort of a shadow military. Concerns are going to come out
of that. That's what can happen because
of this. To engage in public discussion
about it, here's the new line we have to draw, we take civil
liberties seriously, we take national security seriously and
in good conscience here's the new policy we have.
Then you get critics, "Oh my god, you can't do that."
The Fourth Amendment's written in stone.
It's easier to avoid that conflict by simply getting away
with it if you can. I think Bush tried to do that,
and I think Obama is continuing that.
We have one more question here.
My name is Debra and I'm with the Center for the Study of
Liberal Democracy, one of the sponsors of this event, and
actually Don Downs is the director.
I wanted to ask you to talk a little bit about the Patriot
Act. First of all, I'm not sure why
it's called the Patriot Act. Oh, and you have to be brief.
Do you think that it has caused an erosion of our civil
liberties but that it's been worth it because of the kinds of
intelligence that we've gained? If it hasn't been worth it, then
do you think the next time it comes up for re-approval or
renewal, anybody is going to argue against it?
It does worry me. >> Yeah, sure.
This is a subject for a whole day's discussion, the Patriot
Act. I think parts of it were
necessary, as I said, money laundering provisions, roving
warrants for wire taps. Nowadays people have cell
phones, you make a call, you throw it away.
SO you get a warrant to cover a person not just a form of
technology or a particular house or location.
These kinds of adjustments are simply the living constitution
applying itself to new technological realities.
The danger, I think, with the Patriot Act is that, A, it's set
a lower standard for fees for FISA surveillance that we had,
and I'm not sure that there is evidence that the previous
standard for FISA, which is already a lower standard than
normal probably cause for a warrant.
It simply had to show that a national security was the
primary motive for he surveillance.
The Patriot Act watered that down to simply being a concern
or a motive. I don't think that was
necessarily required. More broadly, I'm concerned
about the broad definition of terrorism in the Patriot Act,
which is sort of the foundation of it.
That could mean that we could apply these new standards for
surveillance and what have you to groups that should be seen as
regular criminals. Such as, people that, say, burn
a house down for environmental protection.
I don't have any patience with these guys.
If you burn my house I'm going to try to get to you first.
But they're regular criminals. People for the Ethical Treatment
of Animals have committed various forms of sabotage.
It goes on at the university here, at least in terms of
threats. But they're not terrorists.
The definition of terrorism in the Patriot Act was not tailored
to the national security concerns that we had at the
time. That's a potential, down the
line, that I think could be a problem.
A lot of what happens with the Patriot Act we don't that much
about. The first time the FISA court
ever issued an opinion that was public was 2002, 2003.
All of it's opinions before that were secret.
Now there's some need for that, right?
You need secrecy in this area, but at some point a real concern
arises. So my verdict here is I don't
think it's as bad as its critics thought, but I think there are
issues in it that really need to be watched.
I am so sorry that we have to end here before we get to our
next panel. I would like you to all join me
in thanking our panelists. [applause]
I hope you'll please join them in the lobby and continue to ask
them your questions, and I know many of you have a sticker here.
There are others that will come into our next session,
Islam and Democracy. We hope you'll join us.
I noticed there were several questions about the issue of
debt and a post-9/11 world. I just wanted to remind you to
take schedule if you don't have one.
That issue will be discussed on October 18th, here in the
evening at 7:00. Thank you again all for coming
and please take a quick break and come back by 2:45.