9/11’s Aftereffect: The Constitutional Accountability Abyss

Over the last several weeks in the lead up to the 25th anniversary of al Qaeda’s attack on the U.S., I’ve had American and foreign journalists ask me the same question: how did 9/11 change America?

My answer has generally been some version of this: 9/11 didn’t change us, we allowed it to change us, and in doing so critically damaged our very own political way of life.

We allowed our Arab American and Muslim American fellow citizens to become targets of federal surveillance and to be placed on secret government “watch lists” in the absence of any evidence they’d committed a crime.

We allowed the creation of the most sweeping and invasive surveillance dragnet in American history – first in secret via the National Security Agency’s (NSA) STELLAR WIND program and then openly through the passage of the PATRIOT Act just six weeks after the attacks.

We allowed a previous American president to lead our nation into a war against a country – Iraq – that had nothing to do with al Qaeda’s terrorist atrocities. The drama came complete with a televised presentation of “evidence” to the United Nations Security Council of the continuing threat Saddam Hussein allegedly posed to the region – evidence that turned out to be false.

We allowed those who opposed George W. Bush’s war of choice against Iraq to be targeted by the FBI with surveillance and informant penetration operations that mirrored some of the worst Cold War era tactics employed by J. Edgar Hoover and the organization he led.

We allowed our government to set up secret torture chambers around the world for captured Arab and Muslim men – the CIA’s “rendition, detention, and interrogation” (RDI) program (a.k.a., the torture program). Some, like Khalid Shaik Mohammad (KSM), were directly responsible for the attacks. Others not only had nothing to do with the attacks but no involvement with terrorism at all. And through it all, the U.S. abandoned the very principles of justice under law and due process that it had proclaimed to the world since the trials of German and Japanese war criminals after World War II. That torture program has already damaged the legal case against KSM.

And we allowed the president who authorized these things to get away with all of them and leave office legally unmolested.

I’ve used the phrase “we allowed” because we who are citizens of the Republic cannot escape our responsibility for what George W. Bush did, even if we voted for his opponents in 2000 and 2004.

Yes, there were those who went into the streets to protest the Iraq War and the creation of the Guantanamo prison and its dysfunctional, sham trial system. Those who risked police batons, tasers, and tear gas to raise their voices against unjust wars and the torture of those we captured deserve remembrance and praise. But they were too few in number to alter the course of events because too many of their fellow Americans did not join them when it mattered most.

I witnessed these events from a different angle, that of a senior House staffer working for then-New Jersey Democrat Rush Holt during the final four years of Bush’s presidency. Holt’s repeated efforts to stop runaway surveillance programs from his position on the House Intelligence Committee frequently came to naught because of the refusal of many of his colleagues to join his efforts.

Bush’s authorization of the secret STELLAR WIND mass electronic surveillance program after the 9/11 attacks was a direct violation of the Foreign Intelligence Surveillance Act (FISA) of 1978. It literally represented an impeachable offense, as was his authorization of the CIA’s torture program. And even though multiple impeachment resolutions against Bush or then-Vice President Dick Cheney were introduced, they went nowhere – even though Democrats controlled the House during Bush’s last two years in office.

The fact that not a single House GOP member signed onto any of those resolutions no doubt contributed to the failure to hold Bush accountable for his misconduct in office. It was a posture that stood in stark contrast to the seven House Judiciary Committee Republicans who joined their Democrat colleagues in voting to impeach Richard Nixon for his crimes in office over 30 years earlier.

The degradation of the Congressional ethos of institutionalism and constitutional protection began before 9/11, but the attacks and how we responded to them accelerated the process of political and constitutional decline and the intensification partisan loyalty to the president. Donald Trump did not create this phenomenon, but he and his closest aides have exploited it and pushed it to new depths.

The brutalization of immigrants (legal or otherwise), the legal and political attacks on individuals or entities that oppose Trump’s policies, the expansion of mass surveillance programs, the initiation of multiple illegal military actions – all of this and more has come to pass because of a failure to hold accountable a prior president who engaged in almost identical misconduct in the years after 9/11. Whether that dynamic can be broken and reversed is up to each of us.