I also have a 9/12 memory. 19 years ago today...
i worked in “L”, the legal office @StateDept, handling int’l humanitarian law (mainly law of war/armed conflict). I came in early that morning and, tho my memory is hazy on the particulars, found a post-it note on my desk.
It was from a senior lawyer, brilliant person who had 20 questions for each 1 of yours (L ppl, familiar?). the handwritten note said something like, ‘david, what if a perpetrator/facilitator of the attacks falls into US hands? what’s their status? criminal? combatant?’
obvious question. an industry of lawyers & scholars developed around it. For me, still in shock of the day before, it was novel. At the time I had only thought about this in context of Israeli legislation on ‘unlawful combatants’, which USG lawyers mainly thought was bad idea.
the initial view of career lawyers, at least at state & defense, was not to get into status. it would lead to uncertainty, fine questions that might be seen to limit IHL’s and human rights law’s protections, confuse personnel in the field, undermine US personnel protections, etc.
but soon began a process of writing at state and elsewhere considering whether 9/11 marked the start of an armed conflict for legal purposes. Again, careers of law profs have been made on this question. The question then had at its core status & prosecution in mind.
eventually a small group of inter-agency lawyers started talking about different models of prosecution. It involved career people & political appointees, some now in the firmament of GOP/Trump lawyering
One idea was a military tribunal (a la ex parte quinn). For career lawyers, it was out of nowhere when pres bush signed executive order establishing them 11/13. I was in Beijing & went online (earthlink!) to learn about it and emailed a colleague, WTF? fas.org/irp/offdocs/eo…
they have foundered ever since, a stain on american integrity & commitment to rule of law. we saw it all in advance. even conservative (by prevailing stds then) columnist william safire saw military tribunals immediately as ‘kangaroo courts’. nytimes.com/2001/11/26/opi…
anyway, that fatefully terrible decision – to treat perpetrators/al qaeda members as combatants subject to military commissions, rather than the criminals they were, subject to US crim jurisdiction – was an answer to that 9/12 question posed by a smarter lawyer than me.
It presaged numerous other terrible/unlawful decisions, & a debate over application of #GenevaConventions. We fought with DoJ & WH beginning early january ‘02. i’m incredibly proud of this doc (& those who helped make it happen, & esp Taft/Powell): nsarchive2.gwu.edu/torturingdemoc…
more back and forth of course. One of the worst memos of that period was a tendentious and malicious one signed by alberto gonzales, then WH counsel, in january. i think i first saw in the washington times. Ugh, i hate even to share it: nsarchive2.gwu.edu//NSAEBB/NSAEBB…
Bush signed this consequential memo on 2/7/2002 pegc.us/archive/White_…
all of this laid the groundwork for the immoral and wrongheaded memos written by john yoo and signed by jay bybee finding the lawfulness of torture. nsarchive2.gwu.edu/NSAEBB/NSAEBB1…
the bush years were marked by secrecy in gov’t, the amassing of executive authority, the taking of inhumane actions, & just awful lawyering. I was proud to work with lawyers at State and DoD who believed in rule of law, but it was deeply embittering.
many of the folks on the dark side, the political appointees, have done well for themselves in republican legal circles. several unsurprisingly in the trump orbit.
more than i intended to write, but that’s where my mind leads when i think of ‘the day after’ 9/11. all from a post-it!
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