After 10 years, it s harder than ever to remember what

Transcription

1 10 Years After The legacy of Sept. 11: Still searching for focus After 10 years, it s harder than ever to remember what the world was like before Sept. 11, That world disappeared at 8:46 a.m. Eastern time, the moment on that sparkling morning when the first hijacked airliner crashed into the North Tower of the World Trade Center. The post-sept. 11 world is a vastly different place. Due to intensified intelligence efforts and stricter security measures, the United States has dodged major terrorist incidents since 2001, although not for lack of trying by groups linked to al-qaida, which sponsored the Sept. 11 attacks, or by rogue efforts of individuals. But terrorism has continued to take its toll in places like London, Madrid, Mumbai, Pakistan and Norway. Osama bin Laden is dead. But the fight against terrorism is far from over. We re in a new era of the long war, says Harvey Rishikof of Washington, D.C., who chairs the ABA Standing Committee on Law and National Security. Much of the uncertainty about how the United States should fight terrorism has involved complex and, in Rishikof s view, often unprecedented, legal issues. The executive branch, Congress and the courts continue to struggle with the legal implications of policies aimed at terrorists. The events of 9/11 created challenges for our understanding of separation of powers and how to project force overseas, Rishikof says. The difference between domestic criminal law and the international law of armed conflict has become harder to define. And the threat of cyberterrorism raises issues hardly contemplated a decade ago. The following articles address the past and future of the conflict. There are no easy answers to the policy and legal questions relating to terrorism, says Rishikof. After 10 years, we ve still not resolved the issues to the satisfaction of the domestic or international communities, he says. James Podgers

2 photograph: ap photo/alexandre fuchs

3 Turning Point Even as terrorist threats still loom, U.S. officials are raising the possibility of defeating al-qaida BY SUZANNE E. SPAULDING TEN YEARS AFTER THE HORRIFIC ATTACKS OF SEPT. 11, 2001, top-level U.S. government officials are raising the possibility that a strategic defeat of al-qaida may be in sight. During his first visit to Afghanistan after becoming secretary of defense on July 1, Leon Panetta indicated that U.S. intelligence has now identified 10 to 20 key leaders of al-qaida in Pakistan, Yemen, Somalia and North Africa. If we can be successful at going after them, Panetta said, I think we can really undermine their ability to do any kind of planning, to be able to conduct any kind of attack on the United States. Gen. David Petraeus, the former military commander in Iraq and Afghanistan who will replace Panetta as CIA director in September, recently expressed similar views. There has been enormous damage done to al-qaida, said Petraeus during his last media interview before leaving Kabul. That has very significantly disrupted their efforts, and it does hold the prospect of a strategic defeat, if you will, a strategic dismantling of al-qaida. But even before al-qaida leader Osama bin Laden was killed by U.S. troops in May during a raid on his compound in Pakistan, counterterrorism experts were suggesting that al-qaida s capabilities had been significantly degraded. No one is saying we are out of the woods. Al-Qaida and its fringe groups are highly adaptive, and their desire to strike the West is undiminished. Even as the United States and its allies have degraded the terrorists ability to perpetrate large assaults, the likelihood of smallerscale attacks against targets around the world actually has increased. Moreover, the past several years have been marked by a trend toward plots or attacks by independent groups and individuals, often inspired by al-qaida but with no direct operational link. What impact a strategic defeat of al-qaida would have on these adversaries, or on homegrown terrorists, remains to be seen. SPRING THAW IT S CLEAR THAT AL-QAIDA S IDEOLOGICAL APPEAL WAS dealt a significant blow by the events of the Arab Spring, which dramatically demonstrated the emptiness of the call for a global jihad. Before 9/11, most terrorist groups were regionally focused, targeting local regimes that they saw as corrupt. Bin Laden had tried to convince these groups to join his battle against the United States and its allies. He argued that they couldn t change their local regimes, the near enemy, because those regimes were backed by the far enemy, the United States and other Western nations. The only way they could succeed with their local objectives, he maintained, was to join his global jihad against the far enemy. His argument didn t really gain significant traction until after 9/11. That attack showed these groups that it was possible to reach the far enemy. More important, however, the 9/11 attacks provoked the United States into declaring its own global war, which bin Laden used to support his claim that Muslims were called to join in the global jihad. No matter how often U.S. leaders asserted that they were not engaged in a war on Islam, bin Laden and his followers pointed to America s global war to inspire new recruits. One reason the Arab Spring was so devastating to bin Laden s strategy was that the near enemy was overthrown by the efforts of local populations, not as a result of the global jihad. For more than 10 years, the promised rewards of the global jihad were nowhere to be seen. And when courageous citizens rose up to throw off oppressive regimes, al-qaida simply sat on the sidelines and criticized the protests as tainted by notions of democracy. The ideological bankruptcy of the global jihad was evident to anyone watching the events of this spring unfold. Undermining the appeal of a global movement could have significant long-term benefits. A return to largely localized terrorist efforts, while certainly not a complete victory, would significantly lessen the threat to Americans. Moreover, local terrorist groups that lack backing by a globalized support network should be somewhat easier for local governments to defeat or at least neutralize. Nowhere is this strategy to undermine global jihad more important than in Somalia, where some leaders of the insurgent group al-shabab, who are in contact with al-qaida, are pressing to expand the group s focus beyond the internal battle against the government and neighboring Ethiopian forces. Whether those voices prevail may depend significantly on whether the strategies and actions of the United States, its allies and countries in the region wind up reinforcing or undermining the call for a global holy war. There is a move in Congress, for instance, to reaffirm the global war against al-qaida and affiliated forces. Supporters of this effort are concerned that the Authori - za tion for Use of Military Force that was enacted only days after the 9/11 attacks no longer provides a clear legal basis for the expanding scope of U.S. military and intelligence efforts. Opponents worry that a largely symbolic reaffirmation of a global war at this particular time risks breathing new life into the global jihad. Moreover, President Barack Obama has not sought any new authority and has strongly objected to such a provision in the National Defense Authorization Act for Fiscal Year 2012, as passed by the House of Representatives (the Senate

4 has yet to act), on grounds that it would recharacterize the scope of the conflict. MISLEADING MANTRA IN AN INTRODUCTORY LETTER TO THE NATIONAL Strategy for Counterterrorism that was issued in June, Obama wrote, Though there are many potential threats to our national security, it is the terrorist threat from al-qaida that has loomed largest in the decade since Sept. 11, And yet today, we can say with growing confidence and with certainty about the outcome that we have put al-qaida on the path to defeat. But, the president said, success requires a strategy that is con - sistent with our core values as a nation and as a people. A key element of that strategy is the strength that comes from our commitment to the rule of law. The traditional mantra about balancing national security and civil liberties is misleading. It assumes that these are mutually exclusive values on opposite sides of a scale; if you subtract from one, you necessarily add to the other. In reality, security and liberty are rein - forcing values. As the National Strategy states, The power and appeal of our values enables the United States to build a broad coalition to act collectively against the common threat posed by terrorists, further delegitimizing, isolating and weakening our adversaries. At home, policymakers and the public must understand that there are national security costs associated with undermining civil liberties, and the checks and balances between government branches. As we work to better detect and deter terrorist activity inside the United States, for example, we need to remember that solutions do not always come from broader investigative authorities. Overseas, the use of drones has contributed to military advances in Afghanistan and the border region of Pakistan. They also have angered local populations, which complicates counterinsurgency efforts. Drone strikes, particularly outside a zone of active combat or in countries with which the United States is not at war, generate legal debates about issues of sovereignty and the legitimacy of military action against nonstate entities. Moreover, these activities raise questions about the role of Congress in overseeing intelligence efforts and in authorizing military actions. Politicians sometimes accuse their opponents of having a Sept. 10 mindset, implying that they don t understand the threat we face. The greater risk, however, may be failing to move beyond a Sept. 12 mindset. On that day after the horrible attacks against the World Trade Center and the Pentagon, we lived with a deep sense of vulnerability as we waited in fear for the next attack. Over the subsequent days, months and years, however, Americans returned to their daily lives. We learned that resiliency is an essential and powerful weapon against terrorism. We know there may be another attack, but we refuse to live in or act out of fear. Ten years after the 9/11 attacks, America continues to face a determined and potentially deadly adversary. But this is an opportune time to step back and carefully assess where we are in the fight against terrorism, how we got here, what future we want, and the best path forward. The threat today is not the same one we confronted on Sept. 11, 2001, or even on Sept. 11, As the threat continues to evolve, so must our strategy for dealing with it. Suzanne E. Spaulding has worked in the national security law field for more than 25 years, holding posts in both government and the private sector. She is of counsel at Bingham McCutchen in Washington, D.C., and a principal at Bingham Consulting Group, where she works with clients to develop strategies for dealing with issues related to national security. She is a past chair of the ABA Standing Committee on Law and National Security and currently serves as special adviser to the committee. photograph: ap photo/gulnara samoilova

5 A Day of Days ABA members recall how 9/11 changed their lives and their work ground zero in Lower Manhattan. She is also a member of the Task Force on Disaster Preparedness and Response in the ABA s Tort Trial and Insurance Practice Section. After watching the South Tower fall, Antonucci remembers thinking with a deep cognitive dissonance, Oh, it s going to be real messy when I try to go down to my office tomorrow. After the North Tower collapsed, she thought, Where am I going tomorrow? Antonucci and other Harris Beach attorneys and staff started making calls, trying to locate employees who had been in the office that day. Mean while, a group of outof-town lawyers whose hotel near ground zero had been shut down took shelter in her home. By the end of the evening there were about 10 people camped out in my house, she says. All these people sitting around, eating and cooking and doing nurturing things. It was eerie. In the following weeks, Antonucci and her colleagues faced the daunting task of getting the firm running again. Lawyers cling to paper, she says, but we had no paper. We turned that into our own internal opportunity. When we rebuilt, we rebuilt paperless, and built a very significant and successful e-discovery and e-practice for electronics because we were starting from the ground up. Several years later, Antonucci was in Rochester, N.Y., riding up an elevator to a meeting when a man suddenly grinned and put his arms around her. He was the brother of one of the lawyers she had sheltered on Sept. 11, and he said, I swore the first time I met you I was going to hug you for taking my brother in. BY KRISTIN CHOO CYNTHIA WEISS ANTONUCCI WAS WALKING OUT THE door of her Manhattan townhouse the morning of Sept. 11, 2001, when the phone rang. It was her roofing contractor, who wanted to stop by to inspect a leak. Antonucci, an attorney at Harris Beach, had a court hearing scheduled for that morning at 10. But her husband at the time, also a lawyer, had one at 9. You go. I ll deal with the roofers, she said. If not for that, Antonucci would have been at her desk on the 85th floor of the South Tower at the World Trade Center by 8:30 a.m. United Airlines Flight 175 crashed into the South Tower at 9:03. The impact zone reached to the 84th floor. Five firm employees and a contractor working on office renovations were killed in the attack the most losses suffered by a law firm that day. By the odd chance or circumstance that decided the fates of so many people that day, Antonucci was still at home when airliners hijacked by terrorists linked to al-qaida smashed into both towers of the World Trade Center. Another hijacked airliner crashed into the Pentagon just outside Washington, D.C. She watched the carnage unfold on television in disbelief. Your brain functioned in a very strange way, Antonucci recalls. She is the leader of the practice groups for mass torts and industrywide litigation, and insurance litigation and product liability defense at Harris Beach, which relocated a few blocks away from Susan P. Serota On the morning of Sept. 11, Susan P. Serota was at a meeting in Midtown Manhattan, a few miles away from her office at 1 Battery Park Plaza near the World Trade Center. When she and the others in the conference room heard that a plane had crashed into the center, they assumed it was a minor accident and continued working. Then someone came in and said that it was a jet, she says. That was odd, she thought, because jets didn t usually fly over that part of the city. Then the news came about the second plane. Each of us went out and called our nearest and dearest, says Serota, a partner at Pillsbury Winthrop Shaw Pittman who leads the firm s executive compensation and benefits practice. Then we went back to the meeting. But when we heard that the first building had been basically pulverized, we left. Serota stepped out into a sunny, clear day with blue skies. If you looked crosstown you wouldn t know that anything was happening. But if you looked downtown, you saw huge, billowing smoke rising up.... In many ways I was protected that day because I wasn t downtown. A month later, Serota, a past chair of the ABA Section of Taxation who now represents the section in the House of Delegates, flew to Washington, D.C., on business. People asked me, Aren t you afraid to fly? I said, I m not afraid to fly, but when I walk down the streets of New York and a plane flies overhead, I look to see which way it s going. photograph: ap photo/gulnara samoilova

6 Evan A. Davis Evan A. Davis was driving to work when he heard the first reports about the attacks on the World Trade Center. Rather than fight traffic trying to get to his firm s downtown offices, he decided to go instead to the Midtown headquarters of the Association of the Bar of the City of New York, where he was in the middle of a two-year term as president. As Davis crossed Fifth Avenue, he looked downtown and saw one of the towers burning. That s the image that stays with me, he says today. But at the bar headquarters, there was no time for shock. We immediately turned to figuring out what the New York City Bar needed to do, he says. One priority would be to provide pro bono legal services to victims and their families. We did not want to make a person have to go from lawyer to lawyer for different kinds of problems, says Davis, a partner at Cleary Gottlieb Steen & Hamilton. We decided we would have one lawyer, and that person could then call on experts in appropriate areas who would provide pro bono advice. When the bar held its first training session for lawyers, the line of people waiting to get in stretched from the house of the bar association all around the block and way down Sixth Avenue, says Davis. Today, Davis would like to recapture some of the spirit that prevailed in the aftermath of 9/11. Such feelings, however, don t last forever because we live in a somewhat partisan world, he says. But while it lasts it s a very good feeling. John A. Payton In Washington, D.C., John A. Payton was about to kick off his presidency of the District of Columbia Bar by chairing his first meeting of its board of governors on Sept. 11. But that morning, he received an telling him that a small plane had crashed at the World Trade Center in New York City. I turned on the TV and saw the live news of the second plane, he says. Payton, then a partner at Wilmer, Cutler, Pickering, Hale and Dorr, headed to the bar offices to meet with shaken employees. Among the rumors of the day were that the Capitol had been bombed, that the White House was under attack, he recalls. I d say we had a really emotional but terrific meeting. And then I closed the office and told everyone to go home. Bar leaders had a key role to play in the wake of the attacks, says Payton, now president and director-counsel of the NAACP Legal Defense and Educational Fund. He urged D.C. law firms to bolster their pro bono work. The theme for most of us who were presidents of bars then was to see that we had a responsibility, in this time of terror and anxiety, to make sure we didn t compromise our very important values of civil liberties and civil rights. Suzanne E. Spaulding Suzanne E. Spaulding already was a recognized expert on terrorism when she became chair of the ABA Stand ing Committee on Law and National Security in Septem ber On the morning of Sept. 11, she was preparing to meet with committee director Holly S. McMahon at the ABA s Washington office not far from the White House when a TV news item caught her eye. It was about a plane crashing into the World Trade Center. I called Holly and said, I m going to be a little bit late because I m really interested in a developing story in New York, says Spaulding, who now is a special adviser to the committee. And I think it was shortly after that the second plane went in. Spaulding spent the rest of the day watching the news and taking notes on a yellow legal pad. She kept in touch with her husband by phone and was talking with him when another hijacked airliner plowed into the Pentagon, sending up a cloud of smoke that her husband could see from his law office near the Potomac River. I do remember being nervous that we were so close to the CIA building when there were false reports that the State Department had been hit, recalls Spaulding, a principal at the Bingham Consulting Group in D.C. When Spaulding presided over her first monthly breakfast meeting of the committee on Sept. 28, the obvious topic was the implications of the 9/11 attacks on national security. We had a great discussion, she says. I think what people understood that morning was that there would be tremendous pressure on civil liberties. Esther F. Lardent On a perfect late-summer morning in Washington, D.C., Esther F. Lardent was listening to an oldies station on her drive to work when she heard the unthinkable come out of the radio. At first I thought it was a joke, says Lardent, president of the Pro Bono Institute. Then I looked up, and I could see the black smoke rising from the Pentagon. With a young staff waiting at the institute s office only a few blocks from Capitol Hill, Lardent remembers her lizard brain an instinct for self-defense and protection of those close to you kicking in. I just sped into my office and just grabbed as many as I could and crammed them into my car, she says. Outside, the streets were clogged with cars trying to leave the area and the sidewalks were full of people heading to the subway looking just shell-shocked, says Lardent, who now represents the National Legal Aid & Defender Association in the ABA House of Delegates. I took everybody to my house, put on the TV and made lunch for them, she says. Most of us just stayed up and just watched compulsively, without sleeping, just trying to make sense of it. With rueful humor, Lardent remembers the reaction of a friend who called to check on her. I m fine, Lardent said, but I ve got all my kids here and I m cooking for them. The friend answered, You re cooking? Oh my God, this is more serious than I thought!

7 Robert E. Hirshon In early August 2001, Robert E. Hirshon held his first press conference as the new ABA president, and the subject of terrorism never came up. Instead, he talked mostly about two workplace concerns facing lawyers: what he called the tyranny of the billable-hour system and the heavy debt burden facing many law school grads. A month later, Hirshon s agenda changed abruptly. On 9/11 he was in Washington, D.C., on some unpleasant business. President George W. Bush had announced that the administration would no longer ask the ABA to vet nominees to the federal bench before their names were submitted to the Senate Judiciary Committee. Attorney General Alberto Gonzales had summoned Hirshon to explain the nature of the ABA s continuing cooperation with members of the committee. Hirshon was in a taxi when he learned of the terrorist attacks on the World Trade Center. He immediately returned to the ABA s office near the Treasury Department, only blocks from the White House. His first thought was of his son, an airline pilot who made frequent runs to New York s LaGuardia Airport. He called his family to make sure his son and the rest of them were OK. His second thought was for the office staff. The building was closed and staffers sent home, but he and Robert D. Evans, director of the office, stayed on to make sure everyone had left. Sitting there in the stillness, Hirshon remembers these loud noises that we thought might have been bombs. We weren t sure what they were. Eventually, security came through and basically kicked Bob and me out. (Evans died in January.) Hirshon walked out into an eerie scene. The normally busy streets were nearly silent. On every single corner of Washington, D.C., from my office to my hotel room, he says, there was a military presence. A year later, Hirshon ended his term as president during the ABA Annual Meeting in D.C. This time, his parting news conference focused almost entirely on terrorism, especially the need to strike a balance between security and civil liberties. The terrorists must be brought to justice, Hirshon said, but they must be brought to justice the American way. We accept the importance of intelligence gathering we need it. But that doesn t mean you suspend the Constitution. Hirshon now teaches at the University of Michigan Law School in Ann Arbor and serves as CEO of the Wein Hirshon Charitable Foundation. Looking back on the ABA s efforts after 9/11, Hirshon says, I like to think it was one of our finest hours. Neal R. Sonnett Many people who lived outside New York City or Washington, D.C., followed a similar pattern on Sept. 11, They started the day reading the morning paper, but they ended it glued to their televisions. That was the case with Neal R. Sonnett, a white-collar criminal defense attorney in Miami. I closed the office and let everybody stay home and just watched transfixed at least the rest of the day, he says. I was getting more and more concerned not just about the security of this country and how we were going to react, but about the possible threats to the Bill of Rights that could arise. More than a decade earlier, when he was president of the National Association of Criminal Defense Lawyers, Sonnett had written a column citing a Washington Post/ ABC News poll indicating that 62 percent of respondents would be willing to give up some freedoms in exchange for reducing illegal drug use. Surely, the threat of terrorism would up the ante even more. When people feel threatened they are willing to give up their rights, Sonnett says. His concerns crystallized in November 2001, when President George W. Bush authorized the detention of terrorist suspects at Guantanamo Bay, Cuba, where they would be tried by special military commissions. To its credit, the ABA responded very quickly, says Sonnett. Within a month of 9/11, ABA President Robert E. Hirshon appointed a task force on terrorism and the law. Sonnett worked on the draft issued by that task force and, starting in 2002, chaired the ABA Task Force on Treatment of Enemy Combatants for eight years. He also served as the ABA s observer for the Guantanamo military commission trials and chaired the Task Force on Domestic Surveillance in the Fight Against Terrorism. If our American system of justice and our constitution are to be respected around the world, says Sonnett, now a member of the ABA Board of Governors, we have to provide due process to the worst of the people, not just the best, whether citizens or enemy combatants. David F. Bienvenu It was a little before 8 a.m. in New Orleans, and David F. Bienvenu already was at work. He was in a conference room with colleagues from his law firm, working on an expert s presentation in a case, when his wife called to tell him that a plane had hit the World Trade Center. At first, the news didn t quite register, and the lawyers kept on working. Then they went across the street for a deposition in the offices of another firm. But as the bad news accumulated, it became hard to focus. Two of the lawyers wanted to check in with daughters living in New York. Eventually, Bienvenu says, everyone just left. We didn t even think of calling the court. Like many Americans, Bienvenu had only a vague sense of terrorist threats before 9/11. When I was in London, I knew about IRA bombings, but it really never crossed my mind that there was an imminent attack on American soil. But then the vague threat became a horrible reality. Oh my God, this really happened, Bienvenu recalls thinking. This is a major terrorist attack on our soil. Four years later, Bienvenu reacted much the same way when flooding caused by breaks in levees overwhelmed New Orleans in the wake of Hurricane Katrina. We knew it was a possibility, but most people didn t think it would happen in their lifetimes, says Bienvenu, a part- Continued on page 70

8 10 Years After/A Day of Days Continued from page 54 ner at Simon, Peragine, Smith & Redfearn. These days, Bienvenu spends much of his time thinking about what if scenarios as chair of the ABA Special Committee on Disaster Response and Pre pared - ness. One of the committee s messages is that lawyers owe it to their clients to be prepared for emergencies. These events can bring out the very best in people and the very worst, he says. Karen J. Mathis Karen J. Mathis turned on her television in Denver just in time to see the second plane tear into the World Trade Center. My heart just stopped, she says. It was probably the defining moment of my life. The 9/11 attacks affected Mathis on several levels. One was personal. Mine is a fourth-generation military family, and I had a niece in the Air Force and a niece in the Navy, she says. They both went into service in peacetime, and they were now in the middle of a war. The attacks also affected Mathis as a member of the ABA leadership. In September 2001, she was in the middle of a two-year term as chair of the House of Delegates, and she presided over some of the association s first debates on the federal government s terrorist policies. When Mathis served as president in , terrorism issues competed with other initiatives for her attention. Mathis, who continues to serve in the House, still has chilling memories of visiting New York for a meeting just two weeks after the attacks. They had metal de - tectors to get into the hotel, and they had Secret Service at every single door, she says, because Supreme Court Justice Ruth Bader Ginsburg was attending the meeting. And I felt I was living in a nation that was as close to martial law as I would ever, ever want. Ultimately, dealing with 9/11 issues played a role in Mathis decision to leave law practice for her post as president and CEO of Big Brothers Big Sisters of America. It helped me to reconnect to the fact that I became a lawyer to be in a helping profession. Kristin Choo is a freelance writer in New York City. I N D E X T O A D V E R T I S E R S Web Address Page ABA Tort & Trial Insurance Practice americanbar.org/groups/tort_trial_insurance_practice/disasterresponse.html 18 American Bar Endowment abendowment.org 71 BNA* bna.com/estate 15 CDW CDW.com/switches 5 Fujitsu 57 Hertz Hertz.com IBC Lexis Nexis lexisnexis.com/notjustmore IFC Lexis Nexis lexisnexis.com/betteroutcomes 7 Lexis Nexis lexisnexis.com/office BC Pipkin Detective Agency pipkindetectiveagency.com 47 Reception HQ receptionhq.com 21 Saint Louis University none 22 SunTrust* suntrust.com/sba 9 Tabs3 billing & PracticeMaster Tabs3.com/abaj 18 The Talbott Hotel Talbotthotel.com 22 Union Bank of California* unionbank.com/private 9 University of Alabama none 19 UPS Stores theupsstore.com/logistics 31 West, a Thomson Reuters Business Customers.WestlawNext.com 3 West, a Thomson Reuters Business west.thomson.com/peoplemap 13 West, a Thomson Reuters Business west.thomson.com 17 a-b West, a Thomson Reuters Business Customers.WestlawNext.com 33 Xerox Corporation none 29 * Denotes Regional Edition