From 9/11 to 1/6: Lessons for Congress from Twenty Years of War, Legislation, and Spiraling Partisanship
11 Journal of National Security Law and Policy __ (2021, Forthcoming)
8 Pages Posted: 10 Sep 2021 Last revised: 14 Sep 2021
Date Written: September 8, 2021
Two decades on from the September 11, 2001 (9/11) attacks, and in the wake of the violent insurrection at the U.S. Capitol on January 6, 2021 (1/6), it is appropriate to appraise Congress’s performance over the past twenty years in providing “for the common Defence." This invited symposium essay finds the record mixed. Going forward, Congress certainly can and urgently must summon its foresight, civic courage, and institutional resolve to do a better job providing for the common defense while also doing its constitutional duty to “insure domestic Tranquility.” Part I of this essay takes stock overall. Congress helped the nation to mitigate the foreign terrorist threat more effectively than most probably expected immediately after 9/11. That is the good news. But Congress has done worse regarding the domestic terrorist threat than almost anyone twenty years ago would have predicted. Additionally, Congress has provided the Executive Branch a predictable but dangerously expansive degree of latitude in national security. Part II of this essay sets out particular lessons learned and actionable steps toward national and institutional redemption. These recommendations center on stemming the spiraling partisanship that now—worse than any foreign actor—threatens the nation’s ability to “secure the Blessings of Liberty to ourselves and our Posterity.” Legislators must lead opinion: they must show integrity and put constitutional conscience ahead of partisan and personal self-interest. Congress will better play its constitutional role by asserting more confidently and carefully its abundant national security constitutional authorities vis-à-vis the Executive Branch. This essay recommends that Congress vigorously examine Executive claims about intelligence and use of force; reclaim its powers over use of force by repealing and replacing existing statutory Authorizations for the Use of Military Force (AUMFs); reigning in standing statutory grants of emergency authority to the President; legislate with future threats and risks in mind; and enact a framework statute on "secret law" to prevent repeat of the kind of radical secret reinterpretations of the law that were part of the post-9/11 era's most searing scandals regarding surveillance and torture.
Keywords: war, military, law, national security, 9/11, insurrection, Congress, U.S. Constitution, surveillance, intelligence, interrogation; constitutional law, secret law
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