Calibri;Consolas;Times New Roman;  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 your email with us, in which case we would be glad to share 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.