Epstein Examines 'A Decade of Legal Blunders'

A Decade of Legal Blunders

Ten years ago, the fate of this nation, and of the world, was changed by a coordinated and premeditated Al-Qaeda attack that leveled the Twin Towers in lower Manhattan, damaged the Pentagon, downed four American airplanes within American airspace, and claimed the lives of over 3,000 innocent people. By the time the dust settled, the conventional wisdom predicted that this attack was to be the first among many that could lead to the imposition of draconian limitations on civil liberties, all in our fruitless quest to keep one step ahead of a wily, ruthless, and shadowy adversary.

A decade later, as countless commentators have recounted with a sigh of evident relief, none of these dire predictions has come to pass. Al-Qaeda has surely been weakened. No second attack of major consequence has taken place in the United States. The few incidents overseas have all been of smaller magnitude. Al-Qaeda has been degraded. Its key operatives have been picked off one by one, its finances have been choked off, and its communications lines have been severed by smart intelligence work in the United States and elsewhere. Keeping Al-Qaeda at bay has been a resounding success for U.S. counterterrorism.

The crucial question, however, is whether the other components of our decade-long counter-terror program have been equally successful. At this second level, we have a mixed verdict. The three key pieces of U.S. policy to evaluate are these: First, what level of force should the United States have used against those groups and nations that backed, and continue to back, the use of terror against the United States? Second, what are the implications of this policy for civil liberties in the United States on issues like detention, rendition, torture, and surveillance? Third, how should the power to carry out these actions be divided among the three branches of government—the president, the Congress and, especially on matters of individual liberty, the courts?

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