The Impact of 9/11 and the New Legal Landscape: The Day that Changed Everything?

292 Pages·2009·4.686 MB·English

by  Matthew J. Morgan (eds.)

The Impact of 9/11 and the New Legal Landscape
Also by Matthew J. Morgan
A Democracy Is Born
The American Military after 9/11: Society, State, and Empire
The Impact of 9/11 on Politics and War
The Impact of 9/11 on Business and Economics
The Impact of 9/11 on the Media, Arts, and Entertainment
The Impact of 9/11 on Psychology and Education
The Impact of 9/11 on Religion and Philosophy
The Impact of 9/11 and
the New Legal Landscape
The Day That Changed Everything?
Edited by
Matthew J. Morgan
with a Foreword by
Senator Bob Graham
THE IMPACT OF 9/11 AND THE NEW LEGAL LANDSCAPE
Copyright © Matthew J. Morgan, 2009.
Softcover reprint of the hardcover 1st edition 2009 978-0-230-60838-2
All rights reserved.
First published in 2009 by
PALGRAVE MACMILLAN®
in the United States—a division of St. Martin’s Press LLC,
175 Fifth Avenue, New York, NY 10010.
Where this book is distributed in the UK, Europe and the rest of the
world, this is by Palgrave Macmillan, a division of Macmillan Publishers
Limited, registered in England, company number 785998, of Houndmills,
Basingstoke, Hampshire RG21 6XS.
Palgrave Macmillan is the global academic imprint of the above companies
and has companies and representatives throughout the world.
Palgrave® and Macmillan® are registered trademarks in the United States,
the United Kingdom, Europe and other countries.
ISBN 978-1-349-37528-8 ISBN 978-0-230-10005-3 (eBook)
DOI 10.1057/9780230100053
Library of Congress Cataloging-in-Publication Data
The impact of 9/11 and the new legal landscape : the day that changed
everything? / edited by Matthew J. Morgan ; with a Foreword by Bob
Graham.
p. cm.
Includes bibliographical references and index.
1. War on Terrorism, 2001—Law and legislation—United States.
2. Due process of law—United States. 3. Terrorism—Government
policy—United States. 4. Civil rights—United States. 5. Internal
security—United States. 6. September 11 Terrorist Attacks, 2001.
7. War and emergency powers—United States. I. Morgan, Matthew J.
KF9430.I47 2009
345.73′02—dc22 2008055139
A catalogue record of the book is available from the British Library.
Design by Newgen Imaging Systems (P) Ltd., Chennai, India.
First edition: September 2009
10 9 8 7 6 5 4 3 2 1
For those who dream of a more perfect and glorious State, and
who do not what is expedient, but what is right, cost what it may
Contents
Foreword ix
Bob Graham
Acknowledgments xi
About the Contributors xiii
Introduction 1
Matthew J. Morgan
1 The Preventative State: Uncharted Waters after 9/11 7
Alan M. Dershowitz
Part I The Impact on American Civil Liberties
2 The Logic of Suspending Civil Liberties 27
Dewi Williams
3 The Use of “Speech Zones” to Control Public Discourse in
Twenty-First-Century America 39
Paul Haridakis and Amber Ferris
4 Challenges to Academic Freedom since 9/11 57
Peter N. Kirstein
5 Gun Control and the Right to Arms after 9/11 75
David B. Kopel, Paul Gallant, and Joanne D. Eisen
6 National Security Letters and Diminishing Privacy Rights 91
Christopher P. Banks
7 National Security Entry and Exit Registration 103
Moushumi M. Khan and Kim M. Williams
8 Civil Litigation against Terrorists and Terrorist States 113
John C. Blakeman
viii CONTENTS
Part II Legal Changes to Structures and Systems
9 How 9/11 Changed the Prosecution of Terrorism 125
Christopher A. Shields, Kelly R. Damphousse, and Brent L. Smith
10 The Commander-in-Chief after 9/11 145
Aziz Z. Huq
11 Intelligent Oversight 157
Anne Joseph O’Connell
12 The Failure of Institutionalized Accountability in Matters of
National Security since 9/11 175
William G. Weaver and Rene Flores
13 Regulating the Push and Pull of Migration in
the Post–9/11 Era on the Southern Border 189
Brent G. McCune and Dennis L. Soden
Part III International Law in New Times
14 Fighting Terrorism: The Role of Military Ethics,
Humanitarian Law, and Human Rights in Theory and Practice 213
Joanne K. Lekea
15 The Torture Memo 231
Tara McKelvey
16 The “Bush Doctrine” and the Use of Force in International Law 241
Leanne Piggott
17 The 9/11 Attacks and the Future of Collective Security Law:
Insight from Islamic Law 267
Mashood A. Baderin
Index 281
Foreword
Bob Graham
Now is a timely period to reflect upon the horrible tragedy of
September 11, to understand the impact of those terrible events, and
to prevent them in the future. The series of which this volume is a part,
The Day That Changed Everything?, is an important project. Painful as it
is to revisit memories of such a terrible time, it is a necessary process to
prevent future catastrophes.
I believe such reflective processes have led to a growing realiza-
tion that our leaders did not do everything that they could have done
and should have done to protect Americans from a terrorist attack. The
9/11 Commission, for example, has reported that they endorse the rec-
ommendations of the Joint Congressional Inquiry into the 9/11 terror-
ist attacks, which I cochaired with my friend and colleague and fellow
Floridian, Porter Goss. We found that failures of intelligence collection
and analysis, compounded by a lack of information sharing within the
intelligence community and between the intelligence community and
the law e nforcement community, cost us the chance to detect and disrupt
the plot of the 19 hijackers. In short, September 11 could have—indeed,
should have—been prevented.
In order to prevent future terrorist attacks on our homeland, we must
enhance our domestic intelligence-gathering capabilities. We need to
have a full and open debate in this country about the balance between
domestic security and personal liberties and how we go about identifying
and tracking terrorist suspects who live among us. This book is a major
step in that direction.
Whether it is our domestic civil liberties or whether it is our responsi-
bility to be an advocate for human rights, we must not forget the centrality
of concern for human rights in our national values and history. Jimmy
Carter articulately expressed something that seems to have been lost in our
current dialogue on human rights: “Human rights were not the product of
x FOREWORD
the United States of America; the United States of America was the product
of human rights.” Staying true to these values while protecting our security
will be imperative as we move into a dangerous new century. Challenging
old assumptions and advancing the dialogue are a necessary part of this
process, and I am encouraged to see those so well achieved in The Impact
of 9/11 and the New Legal Landscape.