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I'm Margaret Lewis, Executive >> Director of the Wisconsinyou.
Academy of Sciences, Arts and Letters.
Thank you so much for joining us
event remembering the to10th anniversary of 9/11.emy
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
This fall, we are focusing on the theme of perspectives on a
post 9/11 world.
day of reflection for us. In conceptualizing this series,l
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
security with personal privacy, iabout the fractious politicalal
things at home, and the enormous
We'll discuss some of these tchanges through the course ofe.
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
Citizenship and Democracy, with Louise Cainkar, Charles Cohen
and Asifa Quraishi. But we wanted to discuss also
the role of the arts and
literature and music can in a very special way, help us come
to grips with tragedy.
of the day. ThWe'll have a little longerel
introductions of our panelists
to start by just thanking all of before each panel, but I'd like
taking away from family, you for being here today, for
speakers, also, for sharing their expertise and experiences
with us, to reflect together
contribute to a better present. onSo thank you all.can
I'd also like to thank our
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
Foundation; of the M&I Bank;ommunity
Reinhart Boerner Van Deuren,
the University here in Madison;
the Wisconsin Center for the of Wisconsin-Madison; and
So, thank you very much Study to our sponsors.racy.
We'd also like to thank our marketing and communications
sponsor, Good for Business, and our media partners,
Madison City Channel 12;
Wisconsin Public Radio, Wiscothat will be hereision;
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
little bit and connect with each feel free to walk around a
I'm sure the panelists will be other and share your ideas.
minutes after each panel. glYou can ask them questionsew
in the lobby, as well as asking them questions after their
presentations.
members of the Wisconsin For those of you who are not
join. AcIf you fill out one of theseo
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We hope you'll help us by afilling those out and sharingp.
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Please consider joining. Wisconsin, four issues.
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you very much for sticking with me through those organizational
issues. Now we can jump into our
program.
who are just joining us. Thank you again for those of you
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
Abroad in a Post-9/11 World. discussion, the US at Home and
the UW-Madison Our speakers are John Hall,
in US History, Ambrose-Hesseltine Professor
Alexander Meiklejohn Professor and Don Downs, the
and Journalism at UW-Madison. oJohn 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.
faculty at the US Military He's a former member of the
and most recently served as the chief of the Future Studies
Branch of the US Army's Future
at Fort Monroe, Virginia. He holds a BS in History,
from the US Military Academy
from the University of North Carolina-Chapel Hill.
Professor Don Downs is the
books, and has published author of the five award-winning
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,
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
and to lead off this very impressive program of speakers
on what is a very sober,
No doubt, many of my colleagues ytoday are going to emphasize.
the ways in which the events
Indeed, this seems to be the of 10 years ago changed America.
so many of the events, articles, most common recurring theme of
commemorated the and programs that have
And with good reason. Undeniably, the United States,
and indeed the rest of the
they would have been absent world, arthese attacks.day than
Yet at the same time, it is easy
by 9/11, and to convince to exaggerate the change wrought
the dawn of a new age ouor a new world order.led
For families who lost loved ones
followed, this is true. iIt may also be true for thoset
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
Iraq and Afghanistan would terrorist attacks of 9/11,
followed perhaps by Pakistan. oThat the United States was
profoundly affected by 9/11 is undeniable, but the same may
be said about the effects of
event that riveted the nation, Hurricane Katrina, a tragic
bureaucratic reform, and changed engendered significant
tens of thousands of Americans. But for some 3 million others,
it remains a lamentable affair, worthy of commemoration,
but scarcely affecting
their day to day lives. theAside from the enduringive
inconvenience and occasional
most Americans go about their lives today, just as they did
on September 10, 2001.
is neither America What has changed, then,
but America's perception nor its place in the world,
On September 12, 2001, of these things.
awake to a new world, as they awoke from a dream
that they had nurtured
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
than in the decade manifest themselves more fully
Following America's stunning between 1991 and 2001.
first Persian Gulf War and the military success in the
many Americans comfortably collapse of the Soviet Union,
had at last run its course. The ascendant euphoria of that
moment was captured best
Francis Fukuyama, who declared by political scientist
asserting that American-style liberal capitalism had triumphed
and that the rest of the world
This was the world that came would inevitably climb on board.
on September 11, 2001. crashing down around us
an illusion did nothing to soften the blow.
For if that world was a fantasy,
destruction were all too real. the shock and trauma of its
States endured On a massive scale, the United
Post-Traumatic Stress Disorder the national equivalent of
the events that had transpired as it struggled to reconcile
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
a spirit of vengeance aanswered the second question,r,
if only in the short term.
labored to fit the imperative Aof retaliation into a broaderil
strategy, President Bush
too far ahead of themselves. admonished them not to get
people, he wanted to, in his words, "kick some ass."
They would worry about
at some later point. the future of Afghanistan
George Bush for his strategic While short-sightednessticize
in this instance, we must also
reflected those of most aAmericans in those dark hours.
Eventually, the Bush
lack of strategic vision, although we might debate today
whether or not
Even while pressing questions thabout Afghanistanng.
remained unanswered, Bush's cabinet turned their attention
to the broader issue
"new" post-9/11 world. of addressing the supposedly
nor their chief executive were inclined to accommodate it.
Instead, the president and his
the old order and to preserve the American way of life.
With the stakes defined as such,
At home, the United States cost was no object.
Homeland Security, overhauled its intelligence community, and
implemented a surveillance
height of the Cold War. Abroad, the United Statese
launched a covert war against terrorists in some 16 countries
that we know about, and a very
Justified initially on the conspicuous one in Iraq.
possessed weapons of mass gdestruction, the Iraq Warn
ultimately and fundamentally
conviction that the U.S provided rested on the neoconservative
other societies. a model for the development of
their enthusiasm for Fukuyama's "end of history" thesis, but
9/11 did suggest that the United
passively and let history run Stateits terminal course.it by
Instead Americans would have to help it along its way
removing obstacles such as
In the tabulation of the ways in Saddam Hussein.
place these developments- wthe expansion of the nationalny
security state and the launching
wars-at the top of the list. of two open-ended, foreign
these measures were undertaken But it is worth noting that
insulating the United States from change and creating with expraroundrpose of
it a world that better fit our
What's more, few of these measures represented significant
departures from American
precedents. As the venerable Cold War
historian Melvyn Leffler points out in the current issue of
Foreign Affairs, the so-called Bush Doctrine of
preemption is in keeping with American foreign policy
traditions of long standing,
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
high-intensity, state-on-state of warfare predicated on
We might have expected a conflict.
following the collapse of the rSoviet Union in 1991, but thegm
Persian Gulf War of that same year seemed to obviate the need
for a critical reassessment.
States, its enemies were not Unfortunately for the United
Well into the twentieth century, nearly so complacent.
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
culminate in conventional all successfwarfare.utions must
But by the late twentieth century, the sort of
conventional military power required to contest the United
States was beyond the reach of
tin-pan dictators but even some of the United States' closest
allies. The Persian Gulf War made this
point clear to almost everyone
While our military walked away but the United States.
its own superiority, our enemies from this conflict convinced of
hope of ever contesting the at lastUnited States byorlorn
conventional means. Inclined to see technology as
the answer to most of our security problems, Americans
were slow to realize the
but a handful of nations, slow consequences of outclassing all
weapons of mass destruction and tothe rise of terrorism are inof
part consequences of
Secretary of Defense Donald Rumsfeld certainly does not
appear to have grasped the
superiority. limits of this technical
called "Network Centric A voWarfare," he believed was
that digital communications would enable the United States
to see first, know first, and strike first without the
commitment of large ground
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
The months that followed necessary.
faith in Network Centric Warfare invalidated not only Rumsfeld's
that a force trained for but also the Army's conviction
more than adequate for all of hithe demands of irregular or be
asymmetric warfare. Throughout its history, the Army
had never cottoned to these kinds of missions, but rarely
had it been able to avoid them
expansion invited conflict with etribal and subnational groups,c
and most of American military history consists of conflicts
like those in Iraq and
those in the world wars. Afghanistan rather than like
Vietnam was the Army permitted Only after the frustration of
conflict on the grounds that it eroded the nation's preparedness
for a conventional showdown with
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
national security. acknowledges as essential to
conflict, our all-volunteer Aforce has grown not merelyl
competent but expertly
brand of warfare. In the process, it has surprised
America's enemies and even
The notion that America had no itself with its endurance.
wide currency both within and outside of the United States in
the wake of Vietnam, and the
on simultaneous wars for so long ability of our military to carry
departure from tradition. sInstead, it is again a product
of returning to American
From its founding, the United States had relied on its regular
military, sometimes augmented by
dirty, little wars against all volunteers, to wage the nation's
insurrections on the margins of manner empire.ans and
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
these contests. In large measure this is because
the size of these wars rarely warrants the cost and
inconvenience of putting society
reflects the fact that a on a war footing, but it also
maintain this stance if it has democratic society cannot long
the war. reason to doubt the necessity of
World War II. But the dawn of the nuclear age
and the coming of the Cold War
a profound new challenge, and it presented the United States with
for the first time in our dhistory, remaining on a war,
footing while not actually
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
Significantly, the United States residue than in times past.
conscription, supposing that it would not have time to mobilize
American society from square one
In part, this was prudent, but in the event of World War III.
the societal crisis of the it also helped to bring about
In the paranoia of the Cold War, 1960s.
hard time distinguishing truly American policy makers had a
of empire that predominate vital wars from the routine wars
In the case of Vietnam, they American military history.
former and made the mistake of mistook the latter for the
fight what should have been a sendinconstabulary war.rmy to
By the time Lyndon Johnson and
their error, it could no longer his advisbe undone.realized
As the United States painfully
in the early 1970s, both the extricated itself from this mess
"never again." Army and American society vowed
still plans to draw on the In principle, the United States
event of a major conflict. masses of American youth in the
notwithstanding, today's senior military leaders cannot even
begin to contemplate
They were decidedly against the prospect when raised by some
Congressional Democrats in the
and it seems highly unlikely earlier days of the Iraq War,
broach it again in the that they'll be willing to
When a senior colleague of mine participated in a non-partisan
panel associated with the last
asked the Chief-of-Staff of the Army: who is thinking Quadrennia about ense Review, he
large-scale mobilization of manpower in the event of a
major conflict? General George Casey replied,
"I'm certainly not."
represents a significant shift This, it must be admitted,
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?
the most conspicuous case is the I think that without a doubt,
wage covert and clandestine military operations through the
Central Intelligence Agency and Special Operations Forces.
But even this represents a
function. naDespite very valid concernsfit
about the implications of this
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
instead made Congress willing to these enhanced capabilities; it
Exactly how much we have spent pay for them belatedly.
matter of conjecture over classified material, but the sum
is certainly astronomical.
Command grew from 1,800 Thpersonnel prior to 9/11ons
to perhaps 25,000 today, and
represents what is essentially a its parent organization now
If US SOCOM doesn't yet rate separate armed service.
the Joint Chiefs, it seems independent representation among
will occupy a prominent if not probable nevertheless, that it
national security strategy in primthe years to come.ca's
So, too, for the CIA, which works closely with the Joint
Special Operations Command and
capacity for independent, lethal has developed an unprecedented
Having grown seven-fold since 2001, the CIA's
Counter-Terrorism Center has
with its controversial drone killed an estimated 2,000 people
Meanwhile, the CIA's Special program.
in the sort of combat operations Activities Division has engaged
for elite special operations typically, and legally, reserved
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
couldn't tell the difference such collaboration, "You
Forces guys and contractors. between CIA officers, Special
together. All under the command of the
CIA." To many, this is an alarming
development that figures to push
implementation of our national the both the formulation and
shadows and beyond the scrutiny sof the American people.he
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
increasing militarization of the alarming sign about the
consequences at home and abroad. CIA with supposedly ominous
to you that if you are the sort of person who is concerned about
the CIA's predator drone
its paramilitary operations, program, its secret prisons,
indeed celebrate the appointment then you should applaud and
the directorship of the CIA. of a career military officer to
life in a profession that takes nothing more seriously than its
oath to uphold the Constitution and the other laws of
this nation.
at various times in its history, Conversely, the CIA has,
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
use of force and the rule of military's values regarding the
the exchange is going to be law, it mureciprocal.nized that
The supposed "militarization" of
problem than the potential the CIA, then, is far less of a
military forces that will de-routinely work with it.the
And I fully expect such collaboration to become routine
in the years ahead. The last time I spoke here for
the Wisconsin Academy of
I argued that the United States would not suffer from an Iraq or
Afghanistan "syndrome" as it did
Trying as these conflicts have following the Vietnam War.
the American society nor gutted its military as did that earlier
conflict. I stand by that argument today,
but I must also acknowledge that
has accomplished what Al Qaeda the lingering economic recession
means to continue the time and failed to do, exhausted American
rebuilding foreign societies. resoAccording to the 2010ss of
Quadrennial Defense Review, this
of our armed forces, a point remains an essential competency
when he retired from the army reiterattwo weeks ago.Petraeus
But the American people are to
The dividends derived thus far be excused their incredulity.
been meager, especially when from Iraq and Afghanistan have
Arab Spring, which the US has harvested in spite of compared withratherruits of the
than because of it's grand
and Afghanistan. democratization projects in Iraq
Special Operations Command hold out the prospect of a cheaper
and more gratifying alternative.
operations seek to address the Whereas counter-insurgency
in a foreign state, counter-terrorism underlying operationsinstability
less ambitiously aim to pinpoint
that reside there. and destroy the terrorist cells
not alternatives but Ideally, the two approaches are
integrated strategy. complementary components of an
to have recognized the allure, Nevertheless, Petraeus appears
counter-insurgency in favor of a nearly exclusive reliance
on counter-terrorism operations.
public, such a shift has obvious To an impatient American
Whereas counter-insurgency is a business of years and offers
very little in the way of demonstrable progress,
counter-terrorism operations
and occasionally offer require no enduring commitment
recent killing of Osama bin spectacular rLaden., such as the
And whereas the costs of
are relatively apparent, all fighting a counter-insurgency
veiled in secrecy. aspects of counter-terrorism are
Operations Command may The CIA or Joint Special
share with the public their successes, but they will more
often leave it down, obscuring
human and economic costs of their their operations.as the
Thus, for any administration
United States from another charged with protecting the
counter-terrorism approach terrorist attack, the
panacea, promising progress without apparent sacrifice.
In reality, however, the costs
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
dangers of relying too much hindson covert paramilitary the
operations to safeguard our national interests.
Under the administrations of
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
what was necessary to protect theAmerican lives and values.ing
Yet in retrospect we can
often were, and their putative appreciate how misguided they
little more than sew the seeds "accomplishments" often did
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
but there is no way for any of their sacrifices are all worthy,
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.
prone to be developed from the What's more, this strategy is
consideration of what ought to bottom up- defined less by a
question: what can you do for me be done and more by the
Operations Command? Thus, we run the risk of
resorting to, what one scholar
formulating a "strategy of argues we employed in Vietnam,
at in the hopes that the tactics": doing what we are good
amount to a strategy serving cumulative effects will
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
Dana Priest's concern when, in reporter
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
matter. We're the force that orders the
universe but can't be seen."
what they do, but ordering the These men are very, very good at
The common refrain that unsavory universe is not it.
to save American lives rarely takes into effect the long-term
consequences of these actions,
and pound-foolish whatever their which are so often penny-wise
And so while we should thank our legality.
sacrifices, we should not trust "them with our future.r
In conclusion, however, I would like to acknowledge that I think
all of the evolutions I have
the main, helpful and necessary. described here today have been,
States is more secure today that I do not doubt that the United
Over the course of the past idecade, the United States haso.
transformed its national
from the Cold War threat of the Soviet Union to the realities of
a world that we could scarcely
2001. This transformation was belated,
painful, grossly inefficient, and at times stained by shameful
excesses. But it was, ultimately
effective.
treasure and honor for our We have paid dearly, in lives,
change sooner. failure to see the need for this
commemorate the lives lost So as we pause today to
also forget those who died on September 11, let us not
that followed. and have suffered in the decade
and mired in a financial crisis, Ten years later, still at war
that we at last have a clearer we can nevertheless be grateful
and America's place in it. appreciation of the world
[applause]
I want to start by thanking the Wisconsin Academy
for having this symposium.
national conversation, which I I hope that it is part of a
and have been for a long time. think we are in dire need of,
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.
framework about law, policy, I am going to provide a basic
leaving it to discussion later and strategy in this context,
Some things I have to say will to maybe fill in some details.
some of you less happy. nA few years ago I published ay,
book that left really didn't
really like, and my friend John lSharpless in the History
Department sat down and said
right." "Now, I'm not sure that's the
case today, but we'll see what
In thinking about this event and happens.
thought that came to my mind is rhow 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
Perhaps the CBO was naive. dollars.
said, giving money to Congress Humorist P.J. O'Rourke once
whiskey to fifteen-year-old is like givboys.ar keys and
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
things were going pretty well. troubling incidents of terrorism
Roaring '20s wasn't it? Before things fell off a cliff.
Do you remember the good times
Seems like a luxury we can't we had about Monica Lewinski?
Journalist Ron Bronstein asked a afford anymore.
article I read in rhReal Clear Politics .a recent
He said, "Has the last ten years
He was tempted to say "yes," been the worst decade ever?"
the better of him. then his historical sense got
1865 were not really very good He had to admit that 1855 to
Nor was 1935 to 1945. We tend to think that good or
decent times represent
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
kind of jihadist terrorism with which we have had to deal andw
which we are still trying to
controversial war in Iraq, which fathom, the fighting of the
mentioned, 4,500 has borne high costs, as John
Americans gravely wounded, and a American deaths, 40,000
source I read, approaching monetary cost, according to one
If you are looking for sources $2 trillion.
of the discord we've had in of terms of our citizenship,ome
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
Then there the downward plight as we speak.
I saw a quote in a leading of the middle and lower classes.
As media coverage of the national newspaper that said,
this week, citizen across the ps United States collectively
realized they would rather
attacks of 2001 than about think about the terrorist
If you want a copy of The Onion, what's happened since.
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
alone, or skull and cross bones as it were, I am an Oaklandl
Raider fan. It was a lost decade.
Those of you who know football
I sometimes I think if the know what I am talking about.
would be healthier, stronger. Would terrorists dare hurting us
if the Raiders were as
At any rate, addressing 9/11 intimidating as they used to be?
should be the order of the day. There are so many imponderables.
Do we have definitive answers to
questions? some of the most pressing
Yes, and no. Did we overreact to the threat?
and its allies a "war" or a Is t"criminal law" issue?Qaeda
A matter I'll return to.
Is the PATRIOT Act a bad law or I ta good law?oth.
I guess it depends on which part
you look of the complex law you consider,
dozens of provisions, some are It's got dozens and dozens and
money-tracking, and the jurespective weights you putke
on security and liberty.
courses in constitutional law, Among other things, I teach
Amendment, criminal law and civil libjustice.the First
And I am sort of known as an
After all, I was born in a advocate of freedom.
civil liberty tradition whatsoever, Canada.
As I tell my students, in principle, at least, liberty and
security go hand in hand, for as
understood, a sufficiently the framers of the Constitution
order to secure the blessings of strong state is necessary in
external enemies. libeThis is the teaching ofl and
political and moral realism, of which I am an advocate.
Look around the world: where you
individual liberty and dignity find weak states, you find
predation. As Madison unwrote in Federalistlence and
51 , if men were angels,
necessary. government would not be
government. BThat said, as Madison and lessd
sagacious citizens are well aware, angels don't run
government, either. So government, which is
necessary to protect our
to our liberty, which is a liberty, can also be a threat
long time. matter of much discussion for a
balances, an issue which I Our system of checks and
designed to push us back when we will return to later, is
This point is highly relevant to stray from the proper balance.
reasons. our discussion today for obvious
obligated to adjust law and strategy in a principled way to
meet the new security threat
civil liberty. without undermining basic
is a matter of intense debate. Whether it has done so correctly
it later. On the one hand, we have not had
a major attack inside our shores
This is really no minor achievement, especially when you
consider the incredible damage
have had. aJournalists I know who haveld
spoken with intelligence
early 2000s, told me that these knowledgeable individuals were
genuinely deeply concerned about
terrorist plans and capacities what they were learning about
Both the Bush and Obama administrations deserve credit
for their work in preventing
responsibilities that come with fthe job of the presidency, Ie
have not been at all surprised
of Bush's policies. that ObNot all of them.d most
For example, torture Bush did away with toward the end of his
administration, what some would call torture.
Also he's changes the aggression
tactics. toward some of the interrogation
attained this state of affairs On the other hand, we have
security infrastructure that by instituting a massive new
after we win the war on nterrorism, if we ever do.en
Government programs have a
What we do with this potential tendency to stay their need.
great importance. The last thing we want to do is
become a bloody China.
It's easy to agree with such There are so many imponderables.
professor of political science critics as John Mueller, a
Ohio State- excuse me, at THE anOhio State University, whoat
claimed in a recent book
"Overblown." that the reaction to 9/11 was
stems from the luxury of But perhaps that conclusion
have not had a major attack on hindsight, and the fact that we
Why is that? our soil since 9/11.
extant the product of the Itefforts of countless local,nt
state, and federal officials
measures, many of them unsung dealing witheroes.er-terrorism
As Anne-Marie Slaughter, a
and former director of Policy PrinPlanning in the Obamatist
administration wrote in the Wall Street Journal on Friday,
"After a decade without any such attacks, albeit with some
near misses," sometimes we get
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'
upon working on this talk, I thoughts, in addition to my own
observation. came upon an interesting
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
What's the difference? the country.
to mind readily. Some rather obvious reasons come
at least was not at that time, Hawaii is not the "homeland,"
It's not a media center, and it's a long away.
and American culture has like New York and Washington,
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.
"cultural memory" or commemorization of any kind.
If you look at the web pages
all the history departments in around the country today and in
higher education. the But let me pose anotherlate
difference that provides a
theme of my talk. dPearl Harbor was the beginning
of our engagement in World War
We went to war, and we won II.
The war was more conventional, definitively.
weapons, and the influence except for the scale, type, of
expertise, which represented the of high-powered scientific
with the military than any other university working more closely
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
circumstances. government in such
prosecute enemy combatants who We used military tribunals to
detained prisoners as long as we violated the rules of war, we
we understood- no one ever had to, and
criminal law model to what we thwere doing overseas. a
The war also had a clear
enemies were conventional nation beginning and end, and our
part with soldiers whose states, who fought for the most
their uniforms and status. identities were known because of
international law and the rules of war was pretty clear.
What really wasn't clear was the
who did the concentration camps post-and the death camps.mans
The demarcation of the
clear, as was the line between battlefield was also relatively
And with but a few exceptions, civilians and soldiers.
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
black mark in our constitutional Americans on American soil, a
But the main problem there was history.
citizens and we were doing this thaon American soil.ican
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
If John's correct, we've had recent memory.
understood. moAnd a "new kind of war,"e
to use a phrase that I and 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
The enemy specifically targets rules of war.
Indeed, everyone in this room is civilians, first and foremost.
by them. considered and enemy combatant
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
The battlefield is virtually adorn the walls of our homes.
boundaries to it. The enemy's rational motivation
is not amenable to the logic
the ultimate strategic logic of "deterrence," which was
Despite its pledge to "bury us," of the Cold War.
the Soviet Union did in Khrushchev's famous words,
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
cooperation, as seen in the arms treaties that we enacted
and adopted with them.
famously do not fear dying, and Bthey have no state to defend.s
In my view, the realization that
to the traditional constraints that al Qaeda was not subject
reason we were so fearful in of deterrence was the main
of 9/11. and confounded in the wake
to post-traumatic Stress I really like John's reference
I think that really- If there's such a thing as a collective
PTSD, I think we were very close
How do you deter such people? How do you locate them to
retaliate?
attain more frightful weapons? And what if they are able to
to develop or deploy weapons To be sure, terrorists' ability
hypothetical and speculative as we speak, but who doubts that
they would use them without scruples if they had the
capacity to do so.
and now Obama, had "taken Tthe 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
Trial' and 'Military between two players names 'Civil
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
branch in the government are crisis, then the executive
under the Constitution to fight the enemy and to take stronger
measures to prevent, not just punish aggression.
Our legal tradition has always
government, more power to gconduct national securityhe
operations, even upon our soil, as the well known FISA,
compromise and law, of the
I'll have more to say about that mid-1970s indicates.
This is true for all nations. It's almost like a
law of nations. And the protections of civil
liberty for those defined as
always be less extensive than enfor ordinary criminals.ill
Such things as longer involuntary detainment, the
reliance upon military tribunals
use of less protective to adjudicate war crimes, the
including the absence of Miranda interrogation techniques,
against searches, seizures, and risurveillance are allowables
within constitutional limits. when it comes to national
security targets, not to regular
If we are dealing with citizens.
all these protections are much "criminals" however,
In a related vein, the legal stronger.
Al Qaeda is subject to, and I suse 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
Even though they refuse to abide recognized nation states?
The protections afforded by the rules of war and Geneva are
designed partly to provide
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?
general, former federal judge, recently, former pattern
issue. Michael Mukasey, addressed this
He said, "Perhaps most Let me read what he said.
wider war, civilian trials for important, in a context of a
sense. terrorist violate my moral
If you follow the rules of war, which is to say, you wear a
uniform, you follow a recognized
arms openly, and you don't chain of command, you carry your
be held until the termination of target civilians, then you can
If you violate all of these rules, we've got a better deal
for you.
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
soldiers when they are court protections than we give our own
So it's a conundrum. marshaled.
okay? ISo 9/11 represented a newl,
kind of national security threat, at least in memory,
and a dilemma for the balance of
And this time the threat had law and strategy.
The closest parallel was the come to our homeland.
had to deal with military and Csecurity threats at home.n
As is well known, he stretched
limit, sometimes beyond the limit, in order to win the
war and secure the nation.
inherently controversial, justifiable so, because this
stretching of the Constitution
where the domestic Constitution normally sets strong limits to
what the President and the
the law. government may do to enforce
security by foreign powers or forces takes place inside the
country, we have a
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
in subversion linked to foreign who were belpowers.o be engaged
FISA is the Foreign Intelligence
Such surveillance is still Security Act.
court, a special court created necessary to go to the FISA
authorization. for these purposes, and get
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.
pursued many of these matters. That's indicative of how it
for new ways of thinking, as I The situation after 9/11 called
Jihadist terrorism posed new said.
new technologies such as the problems for national security,
phones, encryption, and other devices were being used by
terrorists to plan attacks. We also had what the 9/11
commission talked about, the
surveillance and law enforcement wall between domestic
intelligence. anThey couldn't speak togn
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.
well. That The law has shifted.t as
This should not be surprising,
shift to truly valid national because punecessities.ays has to
Even in domestic criminal law,
Amendment rights, 6th Amendment rights, have tended, within
clear parameters to fluctuate back and forth depending upon
the crime situation of the
The same thing applies to national security.
This is one reason, for example,
Constitution is often called the need for a flexible
Which is something that most the "Living Constitution."
past. In dealing with terrorism, law
must be cognizant of strategic
cognizant of fundamental legal need, but strategy must also be
As constitutional scholar Phillip Bobbett has written,
"Law and strategy must inform one another."
Now, though we have struggled to
I often think of Churchill's find our way in this domain,
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
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.
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.
has coughed up concepts and Aprocesses that legal scholarssm
and others had not addressed for
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
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,
I was a great constitutional what are those?
Yeah, I'd heard about them, but I didn't know much about them,
so I go to my shelf in my office
con-law books, all right? They're there for two reasons,
one for knowledge and also to impress students.
I looked in the books.
them. ThThese are constitutional lawt
books written by prominent
scholars. So I called some people I know.
They didn't know much either, including my friends in the law
school, all right?
ignorance. So at least I wasn't alone in my
realized that, historically speaking, when done properly, in
the proper domain, and the
military tribunals are a proper kind of defendant,
They are subject to stconstitutional constraints.s.
The supreme court has pushed
terror, but there are not, per those even further in the war on
So the Bush administration had a se, uncalled for.
The problem is how it proceeded to set them up and
defend them, which posed
political problems. Though the Bush administration
had a case, I think it failed to
public, and with a few make a reasoned argument to the
of the loop. exceptions, it kept congress out
Patriot Act, but that was passed Congress was involved with the
in a state of panic. very quickly after 9/11, almost
congress got involved with that. The Detainee Treatment Act,
2006, five years later, congress The Military Commissions Act,
in that. finally started getting involved
involving surveillance, congress The new, more recent laws
But guided by the president's office of legal council's advice
the Bush administrations said we
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.
And we don't really need to take We don't need congress.
either. theWe're just going to do it.uch
What we needed is what I would
to borrow a term from a political scientist whom I know,
named Jeffrey Tulis.
sometimes is to act as an He sainstructor, a teacher.e is
Here we had this conundrum
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
In part it was because the speech in congress after 9/11.
of it's power. presidency had a dogmatic theory
to build a consensus. I think this also hurt policyt
because it mean there were less checks and balances so that the
policy that emerged was more
By refusing to build broader questionable.
policies, the Bush political consensus for its
that had to end up being checked administration created policy
Courts don't like to have to get by the courts.
don't have constitutional war ipowers, that goes to congressey
and the president, and B, this
sort of beyond their input if at is a terrain that they feel is
This left the administration all possible.
Witness the confusion we are behind the 8 Ball
tribunals and surveillance. stilAnd the administration'stary
approach has created more domestic discontent and tension
than, I think, was necessary. All right, I don't think Obama
had done any better.
policies, as I've mentioned. He's carried out most of Bush's
talking about it, than instruct us as to why he's doing what
he's doing, lest he lose the
And I think he's gotten somewhat support of his base.
he's a liberal Democrat and he of a pass from the press because
much as Bush was for these is not going to be criticized as
Neither one has acted as a matters.
particular area. rhetorical president in this
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
normal criminal procedure. reform of law that deviated from
in civil courts, All terrorists should be tried
dealing with warrants and annational security issues wasw
wrong.
know about the FISA act when Most of these groups didn't even
administration policies. they came to judge
long supported the idea of Civil liberty advocates have
allows for the expansion of civil liberty, but they seemed
unwilling to countenance a
comes to the adjustment in "Living Constitution" when it
This is not the first time that we've have witnessed hypocrisy
in constitutional positions.
couple other things. Let me conclude by mentioning a
the blame. Congress also shares some of
do this, to a large extent. IWhy suffer the burden of sucho
negotiations when there are elections to be won and whiskey
and car keys to tend to.
maintained that presidential The Supreme Court has long
Congress. For a variety of reasons we cany
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.
and The Republic, and other He's major publications.antic
He makes a case for principled, strategic and legal
adjustments to deal with the
terrorism, and he is critical of type of threat posed by jihadist
it handled the issue. His book came out right as Obama
was taking power. He said,
for decision making about the legal structure of the war The broad has chanism
consisted of executive
courts of the validity of acthose actions, invariablyin 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
been unfortunate because level, it has
independent duty to legislate in response to problems that
arise in the course of the nation's life.
After all, America's
presupposes that each branch constitutional design
powers, that those powers will clash, and that this clash will
prevent the accumulation
Yet in the war on terrorism, of power in any branch.
opposite of countering the Congress has done nearly the
ambitions. It has run from such powers.
This has lead to more poorly
courts to be the ultimate umpires in this matter and they
have often had to rely on some
War II precedents which were Civil War precedents and World
problem that we face. illI'll conclude with that.he
I have a very hard time knowing how to conclude a speech, so I
usually just stop.
I'[applause].
Now our two speakers would be glad to take your questions.
Jason Smith here, our communications director,
does have a mic.
mic. Please wait until he brings the
bring you the mic so that your Either he or Ronnie Hessler will
and it will be recorded question cproperly.rd by all,
We'll let you address directly, the speakers and I look forward
to a very lively discussion.
and for your reflections and Thank you again, all for coming,
My name is Ruth Simpson. questions.
I think you, sort of, started it I'm from Madison.
the terrorist's attack an act of out correctly in terms of, was
You're right, I think it was war or was it a crime?
But in terms of who pulmagated both.
soldiers. it,They were civilians.n't
And we know that both at the
level that murder charges have state level and at the federal
terrorist and al Qaeda. beSo the question, I think, ine
terms of the criminal law aspect
whether it should be in a military tribunal or in a civil
court.
my point of view, looking at our I think that is a- I guess, from
in a public civil and criminal country in terms of its belief
important feature. justice system, that that's an
put those things together. I'm just curious as to how you
and it's a complicated question. >> That's a very good question,
works. Part of it is, you know, what
the vast majority that we've The fact of the matter is that
prosecutions of terrorist since 2001, and virtually all of them
have taken place in regular criminal courts.
They've been pretty low profile.
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
of the buildings. it It blew out five stories.one
We tend to forget how close we
in 1993. came to dodging a real 9/11 back
guarded by secret service agents The jury in that case had to be
trial. for weeks and weeks after the
were still kept private, or kept Nonetheless, their identities
verdict the press showed up at secret, but the day of the
interview them. twoThe press found out.to
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
I'd just got done watching a watching CNN.
I was in a good mood. fooMy team must have won.g.
All of a sudden I see these guys
these- you know, running around, over in the Middle East with
I went my god, I hope we're shgoing to do something abouts.
this. He declared war on us, but he
didn't know that we were all
he was somehow able to get a that aware of him in 1993 until
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
defense, and it was intended to States, finbe that.nd national
That doesn't mean we have to
war. prosecute it purely as a act of
The first supreme court case We need to be judicious.
was 2004, it was the Hamdi case dealing wvs. Rumsfeld.tribunals
The supreme court said that it's
these tribunals, but the way okay for the court to set up
So they sent it back to the administration and said you've
got to provide more due process.
majority or the pluralities decision in that case aware of
the fact that, well, this is a
If it is a war, it's a different kind of war.
poses a lot of danger to our different kind of war that
because of the spill over civil/crieffects.w system
So if you're going to have
subject to judicial review. tWe want the to be subject to
certain constitutional
To reinforce my point, the court principles.
standards for such tribunals. So it looked to an old welfare
rights case, a 1968 case, that
welfare you are entitled to a hearing under the constitution,
due the due process clause of the constitution.
There are certain standards that
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
It just doesn't fit. model.
something else. Yeah, I think we need to- the
war against terror, it's
intelligence and it has to be mdone judiciously, but I thinks
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 glad to hear you use the I'm from Madison.
kind of where I wanted to go term 'soft power' because that's
In all, either of your remarks next.
but I haven't heard one mention, I've heard a lot about the U.S.
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
are serious questions about it's have ties with and where there
continent that we can work role and it's ability to be a
domestic, internal domestic issues about privacy, all the
things that you're talking about
that can sometimes seem to be at with their own constitutions,
So I guess I would like to look a bit more externally about what
those relationships look like in
interacts with our historical tallies on these questions ins
terms of prosecution but also that soft power that you just
mentioned.
handle the legal aspect of it. >> I'll let Don, obviously,
that we are going to see going I think that part of the shift
allies- I mention in my comments forward in terms of working with
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
I think that for future U. S. military, national security.
strategy allies are going to
of being more effective. remain at the forefront in terms
written that what we've seen in Libya does not provide a model
for U.S. operations.
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
in particular when it comes to more extensively on it's allies,
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
The less ambitious version of counter-insurgency operations.
Where you're not going into an
verge of collapse, but you're igoing into states that kind of
agree with that neo-conservative
States provides a model that we viswould like to emulate.ted
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
the fact that it's going to need to have to come to terms with
dedicated capability to help to develop a more serious,
those nations. train the military forces within
important part of your question. I'm not getting at the most
I'm not sure, the last couple I'of years of the Bush.
administration, Condi Rice, started exercising more
influence.
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
wrote an article back in 2007 or program at MIT, Barry Posen,
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
He mentioned that in other areas that, but even more so.
not retreat, but we would step around the world that we would
I think it all boils down to the back somewhat.
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.
calls for counter-terrorism strategy that does depend upon
military might, there might be
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
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
Right? with good guys.
to exert as much influence as it We've got China already trying
course it could go further than can over thethat.h Sea and of
Iran is already making inroads
I'm an international relations in the Middle East.
At the same time I'm a civil realist.
Going in back in my talk, my big libertarian.
was, if we don't set up a special set of rules for dealing
with these guys, if we do it
system, then we're going to end up compromising our criminal law
system in order to get these
I that sense, there does kind of guys.
between domestic law enforcement need to be a kind of wall
national security. and the enforcement involving
compromise the civil liberties Otherwise we're going to
That means less civil liberties for terrorists, but that's a way
of us preserving ours.
My name is Alan. >> Good afternoon.
years ago right after 9/11 >> Alan and I had a debate ten
Afghanistan. whether or not we should go into
Yeah, it was. We could still carry of the
debate. I want to come back to this
question of the-
for Professor Hall. I I want to come back to thison
question of the function of commemorations.
That is, commemorations,
patriotic sense, have long been used to mobilize public supportr
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.
might have included someone at Say, 15 years ago, this panel
of the Wisconsin School of U. S. the Wisconsin academy speaking
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
when in actuality it's been part the reluctant, defensive player
transnational motivation of an empire with national and
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
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
combating terrorism. have anything to do with
Professor Hall, very Enough on my comment.
wanderer on the Internet. iThank you, I don't even belonga
to the Spartacus League.
In your introduction you were introduced as formerly of the
Future Warfare Division at Fort Monroe.
I'm curious, one, how your
experience. tSpecifically, I'm curious tot
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
Thank you. historian.
Let me begin actually with a >> Sure.
comment, and then role that into comment in response to the
That is that, I'm guessing by the nature of the comment, you
did not detect any shades of the
Although, if we look harder at Wisconsin school in my comments.
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
can evaluate a war. aWas it just, was it necessaryu
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.
view of it, I don't think, but Now that's not an unduly cynical
America's historical role in the it is a realist's view of
remembered that. world and the way that it has
and I have not been to First, I have not been to Iraq
So my perspective is certainly Afghanistan.
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
I have nothing worthwhile to a perspective on it.
I don have a different offer.
more distance and perspective, perspective though, that has
value. which I think has it's own
future capabilities has actually The time I spent developing Army
don't want to say skepticism, incrbut it's made me a moremy, I
appreciative critic, if you will, of the way we build
capabilities. So you're talking about the long
war.
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
Sometimes they're downright termsilly.re.
For instance, 'battle command'
It's now 'mission command.' Because some general didn't
care for it.
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
that there are two kinds of earAmerican military history,is
pitched conflict and persistent conflict.
That's all there has ever been
Eras of persistent conflict punctuated by major wars.
Americans only remember the major wars because, outside of
Vietnam, they don't send their
to go fight and die in wars in sons and brothers and husbands
It is the business of the military to argue for resources
and money to prepare for the
see. threat environment that they
don't do that. They're not doing their job if
that this era of persistent conflict requires the kind of
investment of resources that
Some people, it's really rather remarkable, what the Cold War
has done in terms of
sub-society, an epistemic community in Washington D.C.
that includes the military, it's
At the end of World War II the the think-tanks.
almost nothing. It bumped back up again aftero
Korea and after the Soviet Union
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
to be calamitous." us these resources or it's going
sky is falling since the The military had argues the
That is partly their job. What we need is what Don has
argued for, responsible debate
elected officials and, god among America people, their
about what we really do need and willing, a rhetorical president
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 Japanese internment during the Cora Matsu case upholding
Interestingly, that case World War II in the country.
pro-civil liberty case because eventually became a real
it which ended up going the other direction in the future.
Someone asked him, could you
depriving someone of his or her coconstitutional rights in thely
name of national security.
couldn't say it." HIn a world of these kinds ofe
conflicts, sometimes we have to do things that are
uncomfortable.
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.
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.
of this. That's what can happen because
about it, here's the new line we To engage in public discussion
liberties seriously, we take have to draw, we take civil
in good conscience here's the nationnew policy we have.ly and
Then you get critics, "Oh my
The Fourth Amendment's written god, you can't do that."
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.
it's called the Patriot Act. First of all, I'm not sure why
Do you think that it has caused Oh,an erosion of our civilef.
liberties but that it's been
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
It does worry me. ar>> Yeah, sure.?
This is a subject for a whole day's discussion, the Patriot
Act.
necessary, as I said, money laundering provisions, roving
warrants for wire taps. Nowadays people have cell
phones, you make a call, you
SO you get a warrant to cover a person not just a form of
technology or a particular house
These kinds of adjustments are or location.
applying itself to new simply the living constitution
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
standard for FISA, which is already a lower standard than
normal probably cause for a warrant.
It simply had to show that a
primary motive for he nationsurveillance.as the
The Patriot Act watered that
or a motive. down to simply being a concern
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
regular criminals. to groups that should be seen as
a house down for environmental Such as, people that, say, burn
I don't have any patience with protection.
If you burn my house I'm going these guys.
But they're regular criminals. to try to get to you first.
of Animals have committed Peovarious forms of sabotage.ent
It goes on at the university
threats. here, at least in terms of
The definition of terrorism in But they're not terrorists.
to the national security the Patriot Act was not tailored
time. That's a potential, down the
line, that I think could be a problem.
A lot of what happens with the
about. Patriot Act we don't that much
ever issued an opinion that was The public was 2002, 2003.urt
All of it's opinions before that
Now there's some need for that, werright?et.
You need secrecy in this area,
arises. bSo my verdict here is I don'trn
think it's as bad as its critics
issues in it that really need to thought, but I think there are
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.
I hope you'll please join them [applause]
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.
I noticed there were several We hope you'll join us.
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
evening at 7:00. on October 18th, here in the
and please take a quick break and come back by Thank you again all for coming
2:45.