September 11

September 11 and the History of Lawfare

By Robert Chesney, Jack Goldsmith, Benjamin Wittes
Saturday, September 11, 2021, 2:40 PM

When we launched Lawfare 11 years and 10 days ago, we pledged to devote what we then called the “blog” to “that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions.” It was two years into the Obama administration, and our main focus at the time was on the legal and policy issues that had continued to arise in response to the attacks of Sept. 11, 2001. 

The twentieth anniversary of those attacks is a good moment to reflect on where we have been and where we are now, both as a country dealing with those legal and policy issues and as a site that was founded to address them.

Lawfare was not around for the formative years of the post-9/11 era, but those years loomed very large over the early debates on the site. Debates concerning whether the Bush administration’s aggressive actions in a range of areas were justified were still very raw, and the open wounds from those discussions necessarily inflected how people felt about then-current disputes. If one thought that the history of Guantanamo was an abomination that needed to be extirpated root and branch, for example, one was apt see detention policy in the Obama administration very differently than if one regarded Guantanamo and the policies that came with it as a reasonable response to the problems of captures in the chaotic months after the attacks. If one took the war legal paradigm established by the 2001 Authorization for the Use of Military Force (AUMF) as a reasonable and lawful response to an armed attack on the country, one was apt to respond very differently to the Obama administration’s dramatic ramp-up in drone strikes than if one regarded the 2001 AUMF and its concomitant legal posture as a militarization of what should have been a more traditional response to a set of criminal acts. The immediate post-Sept. 11 policymaking under the Bush administration, and its aftermath, thus necessarily formed a great deal of the warp and weft of this site’s early writing.

The Sept. 11 attacks had not been the first major operational successes for al-Qaeda. But Sept. 11 was different. It was a paradigm-shifting moment, sharply altering the course of history—both in geopolitical terms and in American legal terms. Sept. 11 looms over the legal history relevant to Lawfare in a way that no prior or subsequent al-Qaeda attack does. 

For the U.S. government after Sept. 11, prevention of further attacks became the highest priority. And from that principle so much followed. For law enforcement, this meant an investigative and prosecutorial emphasis on detecting and disrupting plots before they could come to fruition, using tools ranging from conspiracy and material support charges to material-witness detention, an “Al Capone”-style emphasis on the use of available charges of other kinds, and a surge of reliance on confidential informants and cooperating witnesses.

For the National Security Agency (NSA), it meant a chalk-on-the-cleats effort to squeeze the most information possible from the world’s rapidly-evolving communications networks in a fashion that at least pushed the limits of existing law. 

For the Central Intelligence Agency, it meant a massive reorientation of efforts toward counterterrorism in general, and more specifically toward manhunting missions for suspected terrorists that would culminate in secret detentions, brutal interrogations and the use of lethal force. 

For the Department of Defense, it meant deployment into armed conflict in the relatively conventional setting of Afghanistan, as well as the unconventional operations conducted by Joint Special Operations Command elsewhere. It also meant large-scale detention operations and a novel attempt to use military trials of terrorism suspects.

For the Bush administration more broadly, it meant recognition that a state of armed conflict existed between the United States and al-Qaeda, a proposition seconded by Congress when it passed the AUMF calling on the president to use “all necessary and appropriate military force” against whomever he determined was responsible for the attacks, as well as against any entity harboring that responsible party.  

Thus was born what once was known as the “global war on terrorism,” or GWOT. President Bush emphasized that it would not be a short-term conflict but, rather, a generational one—and he was correct on that score. Nor was the conflict ever meant to be merely coextensive with the use of force in Afghanistan. To be sure, thanks to al-Qaeda’s concentrated presence in that country in the fall of 2001, Afghanistan was the initial center of gravity of the GWOT. But al-Qaeda always had presence beyond Afghan borders, as its earlier operational successes in East Africa and Yemen attested, and from the beginning episodic, the low-intensity war-in-the-shadows aspects of the GWOT in countries like Yemen and Pakistan were significant.  

By the time we founded Lawfare in 2010, the more-controversial aspects of the GWOT had all emerged into public view. And all of the GWOT’s various components were still under active debate. Many were by then the subject of litigation. Others were subject to repeated rounds of congressional activity. And the entire premise, that there really was a war in the legal sense of the term such as would invoke the war powers of the government, was still the subject of endless intellectual disputation.

The increasingly intense controversies had already begun even before the decision to invade Iraq poured massive amounts of fuel on the fire. From the beginning of the AUMF-authorized campaign against al-Qaeda, many people rejected the possibility of a state of armed conflict outside of Afghanistan, thus calling into question the use of lethal force in more remote locations like Yemen and Pakistan. That the United States had begun pioneering the use of remotely piloted aircraft to deliver that lethal force—the first drone strike occurred in Yemen in November 2002—added to anxieties about that policy, as did dawning awareness of the role of the CIA in using lethal force.  

Other hot-button issues during this period included the legality of non-prisoner-of-war detention, the legality of military detention at Guantanamo after the first detainees arrived in January 2002, the emergence of the innocent-bystander narrative for detainees, the many controversies that have hounded the military commissions since their initial establishment in 2001, anxieties about prevention-oriented law enforcement, concerns over racial profiling and harsh approaches to immigration, the very controversial CIA black sites and enhanced interrogation techniques program, and controversies related to the first sets of leaks about National Security Agency surveillance and data collection programs.   

All of these matters were widely challenged in courts, in the executive branch, in Congress, and of course in the public during the Bush presidency. The courts and Congress at times supported and at times pushed back against the Bush administration’s policies—as the Supreme Court did in Hamdi, Hamdan, and Boumediene; and as Congress did with the Detainee Treatment Act of 2005, the Military Commission Act of 2006, and the FISA Amendments Act of 2008. 

By the time Lawfare made its appearance in 2010, in other words, years and years of debate, policymaking and court decisions had already accreted. The legal legacy of Sept. 11 had grown rich, yet at least when we founded the site, many of the big questions still seemed open.  

It was actually the Obama administration that clarified how much settlement had occurred on the big-picture legal issues by the end of Bush’s second term.

Following Obama’s lofty inaugural address and some high-profile first-day executive orders calling for Guantanamo to shut down and ending the CIA’s detention authority and capacity to use coercive interrogation, the Washington Post headline on Jan. 21, 2009, proclaimed that “Bush’s ‘War’ on Terror Comes to a Sudden End.” The central claim of the Dana Priest story was that “[w]ith the stroke of his pen, [Obama] effectively declared an end to the ‘war on terror,’ as President George W. Bush had defined it, signaling to the world that the reach of the U.S. government in battling its enemies will not be limitless.” Four months later, on May 11, 2009, former Vice President Cheney charged that the Obama administration had “moved to take down a lot of those policies we put in place that kept the nation safe for nearly eight years from a follow-on terrorist attack like 9/11.”  

The reality, we now know, was closer to the opposite. By the time Obama came to office, many of the early Bush counterterrorism policies had already ceased or been amended and endorsed across all three branches of the federal government. Obama made some adjustments at the margins, most notably in formally ending the CIA’s detention, interrogation and black site program (though it had been largely defunct, in actual practice, since 2006). But against expectation, with a few minor tweaks, he kept military detention at Guantanamo (and continued Bush’s policy of reducing the population size as much as possible); continued the “war” paradigm to address counterterrorism threats; maintained the late-Bush era position on habeas corpus, including its non-application for military detention outside Guantanamo; continued military commissions; significantly ramped up targeted killing that had begun under Bush (including outside traditional battlefields); maintained the traditional executive branch posture on the state secrets doctrine; continued the surveillance programs as they stood in the late Bush years; continued and increasingly relied on material support prosecutions for terrorists; perpetuated Bush’s broad conception of “imminence” for self-defense use-of-force purposes; and further embraced the “unwilling” and unable” construct for justifying the use of force on the territory of a foreign government that had not consented to such actions.   

So while Obama came in with the broad expectation that he would end the war approach to terrorism, the Obama presidency is best seen as regularizing and bureaucratizing the “war on terrorism.” Obama’s main innovations were to play up legal constraints and to add layers of process; to rely less on heavy-footprint forces and more on light-footprint ones—special operations forces, drones, and cyber capabilities; and eventually to extend the war, and the AUMF, to the Islamic State through an imaginative interpretation of the 2001 AUMF. And of course Obama ordered the daring May 2011 operation in Pakistan that resulted in the death of Osama bin Laden. 

Guantanamo provided a particularly striking example of the continuity, much to the Obama administration’s chagrin. Obama came in promising to close the detention facility within a year. That proved impossible in the face of legal hurdles and congressional opposition; and the Obama administration’s position on detention in any event did not differ all that much from the Bush administration’s. So where people expected dramatic change, they saw grudging continuity. And where they expected resolution of outstanding questions in the form of an Obama repudiation of Bush policy, they were forced to face the outstanding questions anew because of Obama’s adoption of key aspects of Bush policy. 

It was thus during the Obama years that many of these questions were finally settled in a rough bipartisan consensus that has persisted ever since. And Lawfare’s early history was consumed with questions related to the terms of what became that consensus. The key elements of that institutional settlement, all components of which have dissenters and some of which are more broadly embraced than others, include:  

  • That armed conflict can exist with a non-state actor terrorist group.
  • That this particular armed conflict exists wherever the participants encounter one another—not just in Afghanistan or any predefined geographic area. 
  • That international law constraints on using force in foreign territory without host-government consent drop out if that government is unwilling or unable to control the threat of terrorism from its soil.
  • That lethal force at least sometimes may take place outside of zones of active hostilities.
  • That the detention of enemy belligerents without granting them status as prisoners of war by U.S. forces is lawful, but also something to be avoided if possible in light of practical, policy and political costs.
  • That it is better to try alleged terrorists for crimes, rather than to hold them in military detention, and where noncriminal detention is necessary, it is better to outsource detention to allies, even if that might means worse conditions for the detainees.
  • That secret CIA detention is rejected, as are all enhanced interrogation techniques, and that the CIA no longer conducts any custodial interrogations. 
  • That NSA surveillance innovations should be openly debated and largely made permanent by Congress by statute with increased oversight by the courts and Congress.
  • That material support and conspiracy charges become the workhorses of counterterrorism prosecutions, while military commissions become increasingly disfavored, having grossly underperformed on all fronts. 
  • That, even after the killing of bin Laden, it is not actually clear where and how the GWOT formally ends.

Because Lawfare did a lot of writing defining and defending these elements—especially the insistence that the armed conflict empowered the government against non-state actors much as it did in a traditional war—Lawfare in its early years was generally associated with the conservative end of the political spectrum, which at that time largely took a hawkish view on counterterrorism questions. The broad project of the Obama administration during this period lay in institutionalizing a framework many liberals preferred to abolish. As much writing on this site, and of our writing personally, was concerned with defining the terms of the overall institutional settlement and defending its vitality, this project had an enthusiastic audience in the administration. But it was anathema to many advocates and scholars outside of government, who often saw it as advocacy of a more palatable diet of Bush-era counterterrorism policy.  

There were other questions, of course, that resisted settlement in this period and that also consumed a great deal of attention on the site. Two, in particular, stand out:

  • The scope of the 2001 AUMF: The specific question here was about the scope of the conflict (which groups are in and which out), though this topic also concerned the larger issue of the role of Congress in supervising executive branch decisions relating to force. Along with Matt Waxman, the three of us proposed an approach to this question that at the time was dismissed as radical and unrealistic because it contemplated a very lengthy war and was designed to adapt to the reality that the al-Qaeda network was fracturing and that the U.S. government was already just shoehorning the successor and splinter offshoots into the existing AUFM using the “associated forces” concept.  Looking back now, it is clear those expectations were correct, and hence the proposal might today seem rather mundane. Its ideas, at any rate, are now mainstream. Indeed, they are very much like the ones being kicked around in Congress these days. Meanwhile, presidents alone still decide the scope of the conflict; Congress has talked and talked about reforming the 2001 AUMF but thus far has not acted. 
  • Military commissions: A vast effort has been made to make the commissions work—and they have faced continuous opposition as well. The commissions have not achieved important results after nearly 20 years, and there is today widespread agreement that they have performed badly compared to their civilian court counterparts. There is, however, no consensus as to what to do about them. So they putter along with an uncertain future.

To be sure, the general stability of the Obama-era consensus depended, as one of us noted in 2012, on certain stabilizing assumptions. Most notably, the institutional settlement that developed in that period presupposed that there was at least a conventional ongoing conflict in Afghanistan—and, at that time, in Iraq and Syria. It also assumed secondarily that there really was still an “al-Qaeda” in the original sense from 2001. Through the Obama administration, these assumptions did not face serious challenge. And the result was that over the eight years of the Obama administration, the questions that consumed Lawfare in its first few years began to fade; with greater stability in the framework came less need for debate. By the time Obama left office, it was clear that Guantanamo was going to stay open and what the rules for detention there would be. It was clear what the NSA was allowed to do and wasn’t allowed to do. The rules for drone strikes, even when they might target a U.S. citizen, were clear as well. And it was clear what kind of conduct could and could not get a person locked up for material support for terrorism. The answers the United States had come to on these questions each had their dissenters, but there were, in fact, known and seemingly stable answers.

And long before the stabilizing factors undergirding the institutional settlement began to unwind, new issues began to appear on the site’s horizon. It may have started with Edward Snowden, who presented Lawfare with its first giant set of issues that was in significant part unconnected to Sept. 11. Cybersecurity similarly came to loom increasingly large. We even began to think about climate change in national security terms. 

Then there was the arrival of Donald Trump. There was the simultaneous acceleration of China’s rise and Russia’s spoiler activities. And there was the 2016 presidential election, which brought together a counterintelligence investigation, foreign interference in American elections, Trump’s own attacks on Muslims and the intelligence community, and a collection of cybersecurity dilemmas. The world of great-power competition had returned suddenly and with oxygen-consuming intensity, making the GWOT seem less compelling, especially since so many of its big legal questions were largely settled. The shocking emergence of foundational, domestic security concerns having to do with the fragility of bedrock elements of the country’s political order—including but not limited to rising domestic extremism on the right, the abuse of presidential power, serious and not-serious talk about a “deep state,” and the involvement of foreign actors in the political system—necessarily shifted the site’s energy away from the counterterrorism questions that had been its bread and butter for the years before. 

In any number of ways, Lawfare reflected these changes. No editorial decision ever drove the site away from counterterrorism and toward these new issues. The change flowed, rather, organically from the subjects that were moving our writers. Lawfare writers followed the Mueller investigation with the kind of intensity we once reserved for Guantanamo litigation; our writers debated the plain-statement rule in the application of criminal laws to the president in a fashion in which they would once have debated the availability of habeas to a detainee at Bagram; and Lawfare covered obstruction of justice statutes the way we once covered only the material support and conspiracy laws. Rule of law and domestically directed separation of powers questions came to loom very large for Lawfare.

All of which gave rise to big new audiences. Whereas Lawfare was born in dialogue with a relatively small group of government lawyers over technical counterterrorism legal questions, this period saw it for the first time become a mass-market product speaking to the general public. It also gave rise to the perception in many corners that the ideological valence of the site had changed and that the site had become more political. Whereas during the Obama administration the site was commonly identified with a certain form of conservatism, in the Trump years the site was increasingly identified with the political left—or, at least, with criticism of President Trump (for there was never any shortage of “Never Trump” conservatives on the site). 

There was a specific sense, beyond simply the fact that we published a great deal of criticism of Trump from a rule-of-law perspective, in which the perception that the site had changed was true. It had grown a great deal. It was covering a far greater range of material. Whereas it had once been bound together by a certain sensibility toward a series of post-Sept. 11 challenges, it was now far more diverse in its range of writers, subjects and approaches. Many of its writers had no sense of its roots in a certain set of arguments that had roiled national security lawyers in 2010 and 2011. Many of its writers did not think of national security law and the law of counterterrorism as one and the same subject. And the relatively conservative sensibility the three of us shared on post-9/11 issues more than a decade ago doesn’t map easily onto the hard national security choices of today. 

Meanwhile, as we mark the 20th anniversary of the 9/11 attacks, the core stabilizing assumptions of the Obama-era settlement—a settlement writers on this site chronicled and often championed—are starting to change. Most notably, the United States is out of Afghanistan. President Biden said, “We succeeded in what we set out to do in Afghanistan over a decade ago. … It was time to end this war.” 

Taken out of context, this might sound like a true end to the war on terror—a deck of the Missouri moment for the post-9/11 era. But there are reasons to doubt that the Obama-era settlement is about to unravel just yet.

Biden’s very next words were: “This is a new world. The terror threat has metastasized across the world, well beyond Afghanistan. We face threats from al-Shabaab in Somalia; al Qaeda affiliates in Syria and the Arabian Peninsula; and ISIS attempting to create a caliphate in Syria and Iraq, and establishing affiliates across Africa and Asia.” 

That is still the language of the GWOT.  The “war” that ended was the “war” in Afghanistan, the war with the Taliban, not the GWOT itself. Its verbiage may be in the dustbin alongside “unlawful enemy combatant,” but like the lingering Guantanamo detainee population, the practical reality of the GWOT remains. Or at least so we predict.

Whatever happens on this front, Lawfare will continue to cover it as we always have, even as we likewise continue to cover the other hard national security choices our nation has come to confront. Whereas the site was once about the legal legacy of Sept. 11, today it should be just as much about cybersecurity, immigration, counterintelligence, disinformation, domestic terrorism, health policy and climate change to the extent those raise security issues, and so much more. 

Born of the 9/11 conflict, Lawfare has grown beyond it. But we will never leave it behind. 

Topics: