9/11 and the Law, Five Years Later:
Today marks five years since the 9/11 attacks, and I wanted to offer a few thoughts on the big picture of how 9/11 has shaped the law. This is an enormous topic, and my views on this are pretty tentative, but I'd like to suggest that 9/11 has had a significantly smaller impact on the law than most of us expected five years ago.

  During the week following the September 11 attacks, most major newspapers ran stories on the very plausible prospect that 9/11 could lead to a radical overhaul of civil liberties in the United States. The articles included sober discussions by law professors of whether we would have internment camps for Muslims, citing the camps for Japanese during World War II, or whether there would be a suspension of habeas corpus, citing the precedent of the Civil War. Fortunately for all of us, this didn't happen. While there were some aggressive law enforcement steps taken, particularly with regard to immigration offenses, for the most part the changes in existing statutory and constitutional law have been minor.

  Granted, it took a while for the press to catch up to this reality. For two or three years following 9/11, it was often repeated that the USA Patriot Act had dramatically changed civil liberties laws in the United States. Everyone seemed to think that the Patriot Act had changed everything, with the caveat that no one seemed to know what was actually in the Patriot Act. In time, though, more and more people have begun to realize that the Patriot Act (fortunately) was never anything like the hype. And I think we can all agree on the basic constitutional picture: the constitutional law "on the books" as it relates to civil liberties is pretty much the same today as it was on September 10, 2001.

  The key thing that has changed, it seems to me, is primarily the nature of the claims of executive authority that the Administration has made since 9/11. Some of these claims were made out in the open, such as claims relating to the detention of enemy combatants. Others were made in secret, such as the constitutional and statutory claims justifying the NSA domestic surveillance program. If you're going to assess the impact of 9/11 on the law, it seems to me that one of the big and difficult issues to consider is the future of these arguments. In 10 years, or 20 years, are the strong Article II claims going to be accepted as a basic part of the constitutional separation of powers? Or are they going to be thought of as a relic of particular figures from the Bush Administration?

  We don't yet know the answer to that, of course. If I had to guess, though, I would guess that the latter is probably more likely than the former. I suspect there is only one vote on the current Supreme Court for the strong Article II theory. Further, my sense is that the existing political constituency for a strong view of Article II is a short-term constituency; it presumably ends as soon as a Democrat is elected President. (When Hillary becomes Commander-in-Chief in 2012, will the folks at Powerline Blog zealously defend the Commander-in-Chief power?) Given that, it would not be surprising to me if today's debates over Article II prove somewhat short-lived.

  Where does that leave us? To me it suggests that the impact of 9/11 on the law is still largely an open question, but that as a general matter the impact has been notably less significant than most of us would have predicted on the afternoon of 9/11. Maybe this will change in the future: Senator Specter's NSA bill is still pending, and a few Supreme Court vacancies might alter the picture. But on the five-year anniversary of 9/11, I'm struck more by how little the law has changed than by how much.

  That's my impression, at least. I look forward to your comments.

  UPDATE: I have fiddled with the second paragraph to make it more accurate. Thanks to Craig Oren for flagging the issue in the comment thread.