The Magazine

Law, Loyalty, and Terror

From the December 1, 2003 issue: Our legal response to the post-9/11 world.

Dec 1, 2003, Vol. 9, No. 12 • By MICHAEL CHERTOFF
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ON SEPTEMBER 11, 2001, acts of war were unleashed on the United States by a stateless international enemy which we know as al Qaeda. Actually, al Qaeda formally declared war against the United States during the late 1990s, but most of the American public did not pay much attention. That changed, of course, when aircraft slammed into the World Trade Center, the Pentagon, and a field in western Pennsylvania.

In the hours and days after the air attacks of September 11, several fundamental facts became apparent. First, the enemy deliberately avoided wearing uniforms or declaring itself. To the contrary, the terrorists masqueraded as students or other civilians and exploited the mobility and freedom of our society to leverage their assault. Second, there was every reason to believe that the enemy had some kind of witting or unwitting support network within the United States, which furnished al Qaeda operatives with resources such as fraudulent documents, places to live, and transportation. Whether the sources of documents, resources, and funds knew what the terrorists intended or not, the existence of these support networks created the potential for future terror attacks. Third, there was no simple way to distinguish between the vast majority of well-meaning foreign visitors and U.S. residents, and those very few but very dangerous individuals who had the intent and capacity to do great harm. This was not merely searching for a needle in a haystack--it was searching for a needle disguised as a stalk of hay.

Finally, and perhaps most significant, the American people realized that we were at war. To be sure, this was not a war in which our adversaries operated in massed formations within a discrete geographic area. But it was (and is) a war by any meaningful definition of the term. The attack of September 11 not only caused an unparalleled loss of American civilian life, but it culminated an ongoing campaign against Americans of several years' duration. That campaign included bombings of our embassies in Africa, an aborted attack on the USS The Sullivans, and a successful attack on the USS Cole.

After September 11, no one could mistake al Qaeda for a mere gang of lawbreakers. For they chose not to violate the law but to attack the law and its institutions directly. Their proclaimed goal, however unrealistic, was to destroy the United States. They used powerful weapons of destructive force and openly declared their willingness to employ even more powerful weapons of mass destruction if they could lay hold of them. They were as serious a threat to the national security of the United States as one could envision.

Because this was a war on American soil, national defense required a domestic as well as an overseas response. And, as is invariably the case in the midst of a crisis, that response was necessarily formulated with very imperfect information about the scope and imminence of the threat. Americans knew that the threat was not over--that the terrorists had no intention of declaring a cease-fire. What we did not know was the timing, location, and scope of the attacks yet to come. We did not know whether the assaults of September 11, as awful as they were, were a prelude to a disaster of even more tragic proportions. (As a matter of fact, even now we do not know. We cannot be sure what is to come and what we have succeeded in averting.)

In this dynamic and dangerous moment--shrouded in the proverbial fog of war--the government approach to domestic security was based on three goals: (1) enhancing our intelligence capability to predict what might happen next; (2) preventing those who could be identified as an active threat from carrying out their deadly missions; and (3) disrupting the networks and institutions from which terrorists might draw sustenance and support.

At the same time, and of equal importance, the leaders of our domestic security effort understood a principle that the attorney general himself repeatedly articulated: We must think outside the box, but not outside the Constitution. Put another way, everyone involved in formulating the response to the challenge of September 11 was acutely aware that this effort would be subject to the verdict of history, in the same way that we have rendered that verdict on the actions of our forefathers when they stepped forward to defend the country during times of peril.

I cannot, of course, render the historical judgment on the actions of the generation with which I served. I do, however, think that those who would write even a rough first draft cannot fairly do so without comparing the steps taken in our own time with our nation's past actions in facing domestic threats.