Myers Essay: The Legal Legacy of 9/11

Challenges Writing the Legal History of the Recent Past

Writing contemporary history presents unique challenges.  In the time of the ancient historians, it was thought that there needed to be at least 1,000 years before an event could become history, that is, the type of history that could be written objectivity.[1]  In the modern era, historians don’t have to wait that long, but contemporary events are still written primarily by the non-historians, be it a personal diary or a journalist writing a news story.  Sometimes historical research needs a certain perspective that distance gives.  After all, this provides the type of analysis historians make intellectual hay out of; it allows them to delve into topics of historiography and historicity.  It allows historians to dive deep into the primary sources of the past as an intellectual “outsider” as opposed to someone “being there.”[2]  And historical objectivity, whatever that means, is created through time and distance.

Of course, historians, like any other writers, are not completely devoid of opinion.  The elusive perspective of objectivity is difficult to obtain, and arguably it doesn’t even exist.  As Kenneth Cmiel wrote in 1990, historical “objectivity” the “dull-witted monarch who despotically ruled the discipline since the late nineteenth century, lies dethroned.”[3]  Theoretical approaches and analysis lend themselves to judgment, and, as a result, historical accounts provide an understanding of history that is, more or less, idiosyncratic to the historian and the time that he or she lives in.[4]  So, that begs the question, can historians today write a good history of the 21^st century?  If so, what will that history be?

The Start of an Era

The history of America in the 21^st century will likely begin with an analysis of 9/11, and its impact on global politics, society, and culture. It may serve as the beginning point to the periodization of the War on Terror, and it may also signal the starting point for studying early 21^st century American history. After all, 9/11 is already part of secondary school history curriculum, and, though teachers may have difficulty in teaching a seminal event from their own past, their students see 9/11 as purely historical, as they were not yet born in 2001.[5]  As we approach the 20^th anniversary of the terrorist attacks of September 11, 2001, there are so many historical topics that are the subcategories of inquiry:  the American War in Afghanistan, the Iraq War, the presidency of George W. Bush, first responders, media coverage, terrorism, and U.S. domestic policy.

It is this last category that is particularly important because it illustrates the contemporary political climate of 9/11, the public attitudes of citizens, and how 9/11 changed American law, rights, and, arguably, legal values.  For legal historians, 9/11 will be likely analyzed through the PATRIOT Act, which provides a snapshot of what a society does when it faces danger.[6]  Through its debates, both political and academic, the history of the PATRIOT Act shows the balance between civil liberties and safety within American society and law.  For media historians there also the question of how well or accurate the PATRIOT Act was covered by the press, and the challenges of providing an even-handed analysis of the issue of security and civil liberty in a time of American crisis.

The PATRIOT Act and Civil Liberties

Passed only 45 days after 9/11, the PATRIOT Act was enacted to provide tools to combat terrorism targeting the United States.  It contained 10 sections, which included provisions for domestic security, enhanced surveillance, money laundering, border security, and redefining terrorism under the U.S. criminal code.[7]  While the law enjoyed bipartisan support at the time of its passage–it passed 357-66 in the House of Representatives and 98-1 in the U.S. Senate–its impact has been controversial because it altered many of the criminal procedures and surveillance techniques allowed in the United States.[8]  Civil liberties organizations, such as the American Civil Liberties Union (ACLU), argued the act stripped away many individual rights. [9]  Some of the most controversial aspects of the law were its indefinite detention of suspected terrorists, searches without warrants for business records, including library materials, and searches of homes.[10]  Section 206, which dealt with roving surveillance, and section 215, which allowed the government to ask businesses for assistance in investigations, would become talking points for the next 20 years in American politics and security policy.

Of course, the PATRIOT Act changed with the political times. Through the past 20 years some of the provisions have expired or changed.  There were hard fought extensions of the Act. In 2006 President George W. Bush signed a law giving extension to some provisions, and in 2012 President Obama signed the PATRIOT Sunsets Extension Act.[11]  Later in 2015, Obama signed the USA Freedom Act extending many provisions.[12]  Along the way, lawsuits challenging the Act were filed, political wrangling over the extensions intensified, and twenty years later Americans find themselves living in a new era (though one shaped profoundly by the legal legacy of 9/11).[13]

The PATRIOT Act’s Legacy

So, what is the historical legacy of this law?  In many ways it illustrates the reaction of government during a time of crisis, and, in the context of American legal history it demonstrates the tension between national security and civil liberties.  In the larger historical arch of the legal development of civil liberties it also signals a point when the value of civil liberty was analyzed through the context of safety.  From an institutional historical perspective, the PATRIOT Act also demonstrated how the political zeitgeist of the early 21^st century led to a creation of new institutional norms within society that changed how citizens viewed the role of government within society and the United States and the global community.

Examining the histories of 9/11 one thing is clear, there is much history to still write.  However, the legacy of the PATRIOT Act is one that shows that major events in the United States sometimes have legal consequences that live on for decades.  The history of 9/11, legal and otherwise, shows something broader about the role of time in history and how much distance historians need before they can analyze a time they lived through.  Writing in 1967, historian Arthur Schlesinger, Jr. wrote that in the modern world the “present becomes the ‘past more swiftly than ever before.”[14]  In the 21^st century the present becomes past at warp speed.  However, analyzing the impact of 9/11 is still a challenge because historians, like everyone else, are still living in its shadow.

About the author: Cayce Myers is the Director of Graduate Studies and an associate professor at Virginia Tech’s School of Communication where he teaches public relations and communication law. His research focuses on public relations history, and laws that influence public relations practice.

References

[1] Arthur Schlesinger, “On the Writing of Contemporary History,” The Atlantic, March 1967.

[2] Donna Merwick, “ ‘Being There’:  Some Theoretical Aspects of Writing History at a Distance,” Reviews in American History 14 (1986):  487-500.

[3] Kenneth Cmiel, “After Objectivity:  What Comes Next in History,” American Literary History 2 (Spring 1990):  170-181, 170.

[4] Mark Bevir, “Objectivity in History,” History and Theory 33 (1994):  328-344.

[5]Olivia Waxman, “9/11 is History Now:  Here’s How American Kids are Learning About It in Class,” Time, September 10, 2019.

[6] Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism (USA PATRIOT Act), Pub L. 107-56, 115 Stat. 272-402 (2001).

[7] Ibid.

[8] Most of the no votes in the house were Democrats, but three Republicans also voted no notably Ron Paul (R-TX). Nine House members did not vote.  The lone nay vote in the Senate was Senator Russ Feingold (D-WI).  One Senator did not vote.

[9] “Myths and Realities of the PATRIOT Act,” American Civil Liberties Union, accessed February 28, 2021, https://www.aclu.org/other/myths-and-realities-about-patriot-act.

[10] Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism (USA PATRIOT Act), Pub L. 107-56, 115 Stat. 272-402 (2001).

[11] USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006, Pub. L. 109-178, 120 Stat. 278 (2006); PATRIOT Sunsets Extension Act of 2011, Pub. L. 112-14, 125 Stat. 216 (2011).

[12] USA Freedom Act, Pub. L. 114-23, 129 Stat. 268 (2015).

[13] See, e.g., ACLU v. Klapper, 785 F.3d 787 (2d Cir. 2015); Obama v. Klayman, 800 F.3d 559 (D.C. Cir. 2015).

[14] Schlesinger, “On the Writing of Contemporary History.”