This paper will discuss the emergence of national security policies and laws in the aftermath of the 9/11 terrorist attacks. Prior to these attacks, there was relatively little coordination between different government agencies and branches with regards to counterterrorism. But the 9/11 attacks led to significant changes. All three government branches are highly involved in national security measures and interests. Congress responded by passing very important statutes to augment the government’s authority to conduct and investigate terrorist threats and apprehend suspects. These statutes reflect the practical difficulties of apprehending and prosecuting terrorists. Terrorism is unique in that if it is successfully carried out, it results in many deaths. Because of the reality of terrorism, the statutes recognize the need for proactive means. Government is given expansive authority to prosecute terrorist threats and suspects beforehand, prior to any acts of terrorism being actually committed. While the robust authority has been the subject of judicial challenge, the courts have been reluctant to second-guess the judgment of the legislature and executive. Introduction
While terrorism has always been a looming threat to the nation, the landscape of counterterrorism and the United States government’s response was transformed by the 9/11 attacks. In the aftermath of these terrorist attacks, the government took an aggressive stance to combat terrorist and to prevent future attacks. Both Congress and the President took immediate measures to equip the United States to defend itself from both impending and potential terroristic threats. In the minds of many, the proactive and responsive government action was the necessary to keep America safe. For others, however, the expansive authority of the government to combat terrorism, apprehend suspects, and investigate threats crosses a line into invasion of privacy.
Wherever the nation falls on the line of striking the delicate balance between defending the nation and interfering with individuals’ private lives, what is clear is that terrorism is now in a class of its own in terms of government response and relevant statutory and legal authority. As fighting terrorism and preserving national security is perhaps the most paramount government interest, most measures taken to ensure safety against terrorism are upheld in the face of legal challenges. Courts are highly deferential to the judgments of both Congress and the President in terms of making decisions based on national security interests. Given such broad power, the government has implemented a variety of means and statutory schemes to detect threats and combat terrorism to the best of its ability.
A Brief History of National Security Legal Opinions
Until recently, the Supreme Court did not often address issues of national security in its opinions. As a result, case law dating before 9/11 is somewhat sparse. One famous case that touched upon national security was Korematsu v. United States (Korematsu v. Untied States, 1944). The case arose in the backdrop of World War II. President Roosevelt issued an Executive Order that mandated the internment of Japanese Americans into internment camps. The Order applied to all Japanese Americans living in the area, regardless of citizenship. The Supreme Court upheld the constitutionality of the Order, reasoning that the government’s interest in protecting national security and preventing espionage outweighed the interests of Japanese citizens being forced into camps. The case remains one of the most controversial in history, as it upholds flagrant racial discrimination on the government’s part in the interest of national security.
Another case that arose during World War II that addressed national security concerns was Ex parte Quirin (Ex parte Quirin, 1942). This case addressed the question of when military tribunals were appropriate for trying defendants. During the war, German saboteurs entered the United States without their uniforms. They were later captured by the US and tried by military commissions created pursuant to a Presidential Executive Order. The saboteurs argued that it was unlawful to try them in such military commissions. The question raised in the case was whether these defendants could be properly tried in military commissions.
The Supreme Court found that the military commissions were a proper venue for the defendants to be tried in. Previous precedent has articulated three specific situations when a defendant can be tried in a military commission. In Ex parte Milligan, the Court held citizens must be tried in federal court unless the federal courts were non operational (Ex parte Milligan, 1866). The significance of the Milligan holding was that if the regular federal courts are open, persons should be tried in those courts rather than in military commissions. The Court in Quirin, however, limited the extent of the Milligan holding. Because the German saboteurs were unlawful combatants who breached the laws of war by entering the nation without an official uniform, they could be properly brought to trial by a military commission.
The Modern World
A wealth of new law has been created since the 9/11 attacks. Almost immediately after the terrorist attacks were carried out, Congress sprung into action. Congress passed the Authorization for Use of Military Force Against Terrorists (AUMF) on September 14, 2001 and the President signed the AUMF into law just a few days later. The most substantial part of the AUMF is the power it gives the President to respond to terrorist threats. The AUMF authorizes the President to use all “necessary and appropriate force” against those who he determines “planned, authorized, committed, or aided” the 9/11 attacks (AUMF, 2001). As the Commander in Chief of the Armed Forces, the President is given the authority to use military force as he deems fit against enemy belligerents responsible for the acts of 9/11.
A second significant piece of legislation passed in the wake of 9/11 was the USA PATRIOT Act (USA PATRIOT, 2001). While a lengthy and highly complex statute, the main idea of the PATRIOT Act is to enhance the ability of law enforcement to respond quickly and efficiently to terrorist threats and attacks. The PATRIOT Act better enables law enforcement agencies to investigate such communications like telephone and email records and gives these agencies expanded access to such materials.
Provisions of the PATRIOT Act have engendered a great deal of controversy. Many people are concerned that the PATRIOT Act gives government unfettered authority to pry into the private affairs of ordinary Americans. The provision that allows for wiretapping into private conversations is particularly troubling to many people. The thought of the government being able to listen in on private conversations raises issues of civil liberties and right to privacy.
The government’s response to the 9/11 attacks was to launch a “war on terror” against those groups mainly responsible. Groups such as Al Qaeda and the Taliban were at the top of the government’s watch list. In waging successful war against these terrorist groups, the US captured many terrorist suspects thought to have aided or assisted the terrorists responsible for 9/11. The manner in which these suspected terrorists were arrested, detained, charged, and treated gave rise to a whole new body of case law.
One of the big questions in the United State’s war on terror was how to handle American citizens that were associated with such known terrorist groups. The ordinary American criminal is entitled to all the protections and guarantees of the Constitution. Common criminal defendant rights include the right to counsel, the right to a speedy and public trial, the right to remain silent, the right to cross examine witnesses, and the right to due process, just to name a few. If an American citizen is arrested for murder, there is no question that the defendant charged with murder is entitled to an array of Constitutional rights. In a terrorism case, however, it was not entirely clear what rights an American citizen was absolutely entitled to.
The Supreme Court case Hamdan v. Rumsfeld attempted to flush out the procedural due process protections an American citizen suspected terrorist should be given (Hamdan v. Rumsfeld, 2006). The Hamdan case concerned an American citizen arrested in Afghanistan fighting against the United States with Taliban forces. Defendant Hamdan was captured by the US and brought to the US detention facility at Guantanamo Bay. The President, pursuant to his authority under the AUMF, declared Hamdan to be an enemy combatant. An enemy combatant can be held for the duration of the conflict without official charges being brought. Hamdan brought two main challenges: he challenged the basis for his enemy combatant status and he brought a due process challenge under the Constitution.
With regards to the first issue, the Supreme Court held that a declared enemy combatant could be held for the duration of the conflict without charge. The authority for such detention was derived from the AUMF and the President’s authority as Commander in Chief. From the specific language of the AUMF, “all necessary and appropriate force” included holding and detaining enemy combatants. To wage war successfully, the President must be able to detain enemy combatants and prevent them from returning to the battlefield. Thus, as an incident to waging successful war, Hamdan could be detained.
As for the due process question, the Court found that Hamdan, as an American citizen, was entitled to minimum due process protections. Due process typically includes notice to the defendant of the charges against him and an opportunity to be heard. The Court took issue with the fact that Hamdan was given no opportunity to challenge or rebut the evidence the government brought against him. While the military detention context does not demand the same standards of proof from the government and less due process is required, defendant Hamdan was still entitled to minimum due process.
Many defendants have been similarly arrested and detained as enemy combatants. There are numerous court cases brought by these defendants raising a number of legal challenges to their detention. A big question that was unanswered for a long time was whether habeas corpus applied to the detainees held at Guantanamo Bay. A Habeas corpus petition allows the detainee to challenge the status of their detention. While it is clear that persons in the United States can bring a habeas challenge, it was unclear whether habeas corpus jurisdiction as extended to Guantanamo Bay. The Supreme Court case Boumediene v. Bush resolved this issue in the affirmative (Boumediene v. Bush, 2008). Boumediene established that Guantanamo Bay detainees have the constitutional right to bring a habeas corpus challenge in US federal courts.
Putting aside the arrest and detention of terrorist suspects, the government has taken other measures in its effort to combat terrorism. One of the most sweeping and far-reaching strategies is to criminalize the material support for terrorists. Under 18 U.S.C. § 2339, it is a federal crime for any person to provide such material support to known foreign terrorist groups. The US Department of State publishes a list of foreign terrorist groups (FTOs) for public view (US Department of State, 2016). Giving material support in the form of money, advice, or training is punishable by fine or imprisonment (18 U.S.C. § 2339A).
The tough price that Americans pay for greater safety and security against terrorism is an inevitable interference with ordinary rights and freedoms. Under the First Amendment, people have the right to free speech (U.S. Const. amend I). This right includes not only speech, but expression and association. The material support for terrorism statute came in conflict with general principles of freedom of speech and association. While most Americans would oppose the messages and ideologies of the Ku Klux Klan, persons in the Ku Klux Klan have the right to express their ideas. In addition, people are not subject to criminal penalty by giving money, advice, or assistance in furtherance of the Ku Klux Klan’s objectives. On the other hand, giving money or advice to an FTO is a federal crime. Because the statute seemingly curtails what would otherwise be free and permissible expression, a group of persons thus brought suit challenging the validity of the material support statute.
The Supreme Court upheld the validity of the material support statute in the case Holder v. Humanitarian Law Project (Holder v. Humanitarian Law Project, 2010). One of the most important issues that the Court addressed was the level of intent requirement needed to sustain a conviction under the statute. The material support statute, as written, did not require any type of specific intent. Rather, the mere intent to furnish or give support to a known FTO was sufficient. The specific intentions or motivations of the persons aiding the FTOs.was deemed to be irrelevant for purposes of the statute. In upholding the statute, the Court gave two primary reasons why a person’s intent should not matter. First, that money is fungible and can be used towards furthering terrorism and potentially humanitarian actions interchangeably. Second, permitting the support of FTOs lends legitimacy to these terrorist organizations, which is highly undesirable.
The material support statute attempts to get out in front of the support of terrorist organizations before such organizations are able to take action. The statute also seeks to deter persons from lending aid and support to such groups. When an act of terrorism is carried out to fruition, it results in mass casualties and loss. Thus, the government’s most effective means of fighting terrorism is to use investigative and legal tools to thwart plans before they occur. Another way that the government has tried to learn of potential terroristic threats and plots before they occur. Since 9/11, law enforcement agencies have increasingly resorted to investigative tools, such as wiretapping and electronic surveillance, to accumulate and gather evidence.
In the digital age, a plethora of information is exchanged through technology and electronic means of communication. The USA PATRIOT Act greatly expanded the ability of law enforcement agencies to collect evidence through electronic means. Perhaps one of the most controversial programs was the § 215 program, which enabled the government to collect bulk metadata from all phone calls in the nation. The program was largely in secret, and few Americans realized the breadth and intrusion of the program until recently. The Snowden revelations brought to the forefront the extent of which the government was collecting metadata of ordinary American citizens, which was extremely troubling to many. A suit was brought challenging the reach of the § 215 program, where the court struck the program down as being overly broad in reach (ACLU v. Clapper, 2015).
Despite the government’s robust efforts to prevent and combat terrorism, terrorism is still a major threat to the nation. Just as former terrorist groups and threats are dismantled, new terrorist groups spring up. To effectively fight terrorism and keep Americans safe, the government must constantly be on the offensive. It is difficult for the government to strike the correct balance between strong national security policies and preserving individual rights and liberties. As the number of government agencies specifically involved in counterterrorism continues to grow and expand, it seems that civil rights and freedoms are sacrificed. While many would argue that agencies are given too much authority when it comes to safeguarding national security, national security should accordingly be the government’s number one priority.
ACLU v. Clapper, 2d Cir. (2015).
Authorization for Use of Military Force Against Terrorists, Pub. L. 107-40, 115 Stat. 224
Boumediene v. Bush, 553 U.S. 723 (2008).
Ex parte Milligan, 71 U.S. 2 (1866).
Ex parte Quirin, 317 U.S. 1 (1942).
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
Holder v. Humanitarian Law Project , 561 U.S. 1 (2010).
Korematsu v. United States, 323 U.S. 214 (1944).
Providing material support to terrorists, 18 U.S.C. § 2339.
USA PATRIOT Act, Pub. L. 107-56, 115 Stat. 272 (2001).
United States Constitution, amend. I.
U.S. Department of State, Foreign Terrorist Organizations. Retrieved from