SEPTEMBER ELEVENTH: LESSONS OF AN INSTRUCTIVE DECADE

George Anastaplo

 

Part One:    The Past

I began, on September 12, 2001, a series of public observations about our responses to the monstrous assaults the day before, in New York City, Washington, D.C., and Pennsylvania. The opening days of our decade-long encounter with suicidal terrorists included for me three letters I presumed to send at once to the Federal Bureau of Investigation with suggestions for immediate inquiries by our Government. My series of periodic observations thereafter looked back to Thucydides for inspiration as I recalled what he said about the beginning of the Peloponnesian War:    he had recognized at once that this was for his Athens a vital challenge, and he began writing about the war from its outset.

My running commentary, which includes public talks on various subjects and even letters to editors, has by now been published in three installments totaling almost five hundred pages. (See volumes 29 and 35 of the Oklahoma City University Law Review [2004, 2010] and volume 4 of the Loyola University Chicago International Law Review [2006].) Perhaps all of these, along with subsequent materials can someday be brought together on an Internet website, if not even in a print-volume. A University of Chicago Law School classmate, Ramsey Clark (a former Attorney General of the United States) has agreed to provide a Foreword upon the issuance of such a collection.

Critical throughout this decade has been the question whether an appropriate Sense of Proportion could be maintained in this country both in assessing the damage done to us on September Eleventh and in shaping proper responses thereafter. (Indicative of my overall concern, early on, is the title of my Loyola law school talk of September 12, 2001, “A Second Pearl Harbor? Let’s Be Serious.”) It was obvious from the outset both that the surviving men responsible for the September Eleventh attacks would have to be detected and punished and that any government that had knowingly permitted them to operate would have to be severely dealt with. Thus, the initial measures taken in Afghanistan (in 2001) seemed inevitable. They could even be understood as an appropriate Police Action, not as an Act of War. It was an Action that was at first quite successful, with the alleged leader of the September Eleventh assaults very much on the run (if not even about to be captured). World opinion seemed generally receptive to this phase of the response by the United States to the shocking September Eleventh assaults. Such an opinion made it more likely that sensible governments and peoples worldwide would be helpful in anticipating any future clandestine attacks on this country.

We then had in Iraq, however, what the student of Thucydides could recognize as a Twenty-first Century relapse into “the Sicilian delusion” that seized Fifth Century Athenians. They had been warned by their Pericles, at the outset of the Peloponnesian War, to restrict themselves to defensive measures, and certainly not to attempt to expand at that time their already considerable empire. But, after Pericles’ death, the Athenians were persuaded that there were great things to be done in Sicily (indeed as a major step toward that “universal” empire the Romans were later to achieve). The Sicilian campaign proved a disaster for the Athenians, evidently contributing significantly to their eventual defeat in the Peloponnesian War and to the dismemberment of their empire. It may take decades to figure out why our President, his Vice President and his Secretary of Defense were so determined to go into Iraq in 2003, effectively abandoning for several years the obvious Mission they had had in Afghanistan. It already seems to be widely accepted both that the abominable Iraqi dictatorship had had nothing to do with the September Eleventh atrocities and that that regime posed no immediate threat to the United States. Critical to judgments about what has been done by our government in Iraq are concerns about a blatant disregard for a Sense of Proportion. Particularly puzzling was the acquiescence of the British Government in what has turned out to be a remarkable act of folly.

It was bad enough that several thousand American lives have been sacrificed to this endeavor, along with a trillion dollars. It remains to be generally recognized how massive the Iraqi losses (perhaps hundreds of thousands of lives) have been at the hands of American power ever since the Persian Gulf War of 1990-1991 (with the decade-long economic sanctions thereafter that were followed eventually by the 2003 Intervention). It should not surprise us that suicidal measures against the United States could be promoted by such treatment. That is, the Iraqi people, for a quarter-century now, may have suffered much more at our hands than they did even from the brutal Saddam Hussein regime.

The follies of our most recent past can remind us of other, perhaps even more serious, follies in our history. Particularly destructive, of course, was that incredible folly, the First World War, which severely damaged the Western World and opened the way to the murderous regimes of Josef Stalin and Adolf Hitler. The “good war” that had to be fought thereafter was preceded by a series of appeasements in Europe which may even have taught decent people the wrong lessons (against diplomacy) since the Second World War. A harbinger of our Iraqi folly was what happened in Korea in 1950-1953. A Police Action, authorized by the United Nations, permitted the repulse of the June 1950 North Korean invasion of South Korea. But, unfortunately, our leaders were not satisfied with driving the invaders back across the 38th Parallel. Their push up to the Yalu River virtually invited a Chinese intervention which poisoned relations between the United States and China for a generation thereafter.  One consequence of all this is that the United States has maintained a substantial military force in South Korea for six decades. There may be seen, in this escalation of the initial relatively modest 1950 mission, an anticipation of the escalation of the First Gulf War (repelling the August 1990 Iraqi invasion of Kuwait) into the 2003 Intervention which could trap the United States in Iraq for a generation.

Then there was, in this catalogue of Interventionist follies, the decade-long effort we made in Vietnam, somehow having been induced to try to clean up the mess left by the French as a Colonial Power. Some fifty-thousand American lives were lost there, and many more Vietnamese. Much was heard then about “falling dominoes” and about a need to head off an imperialistic China. I have recently noticed reports, however, not only of hundreds of millions of dollars having already been invested by American corporations in Vietnam but even of a tacit alliance between the United States and a “Marxist” Vietnam against a threatening China.

Then, of course, there was the overall Cold War with the Soviet Union, a formidable nuclear-armed adversary. I have recently had occasion to be reminded of the passions of the Cold War upon reviewing the correspondence I had in 1952-1953, as a naïve graduate student, with a distinguished philosophy professor, a passionate Cold Warrior. That correspondence is now available, in its entirety, in a posting of August 2011, at http://www.anastaplo.wordpress.com. Indeed, one can wonder, considering the extraordinary passions exhibited on that occasion six decades ago by a quite intelligent scholar, how we avoided an all-out shooting war with Communist Russia. However that may have been, people were very much surprised by the “sudden” collapse of the Soviet Union in 1990-1991. But anyone who ever visited the Soviet Union and noticed how primitive its civilian economy was—as we could see in 1960 (as part of a nine-month family-camping trip across Europe)—one could wonder how that regime could survive as long as it did. Perhaps the fragile Soviet dictatorship could somehow be sustained as long as it was in part because of American fearfulness and hostility.

Here, as elsewhere, a Sense of Proportion on our part was lacking, that Sense which can also be assigned the old-fashioned name of Prudence.

 

SEPTEMBER ELEVENTH:    LESSONS OF AN INSTRUCTIVE DECADE

George Anastaplo

 

Part Two: The Present

            The Present depends, in large part, upon recollections of the Past as well as expectations (including fears) with respect to the Future. Recollections of my career at the bar, culminating in a remarkable Dissenting Opinion by Justice Hugo L Black (366 U.S. 82, 97 [1961]), could be drawn on in my Chicago Daily Law Bulletin article of April 25, 2011 (on the fiftieth anniversary of that decision). How are we situated today? Signs of undue fearfulness can be disturbing. Among these signs are the massive armaments that we still insist upon. It is said that half of all expenditures worldwide for military purposes has long been by the United States. What sense does all this make, especially when there are far better uses to which much of such enormous funds could be put both at home and abroad?

Not only should such continuing endeavors as those in Korea be questioned, but our NATO commitments as well. Has there even been any scaling down of our military prowess that reflects the collapse of the substantial Soviet threat? It is said as well that there has been, since September 2001, a doubling of its defense budget by the United States. What sense does the fearfulness implicit here make on the part of the most powerful country, militarily, in the known history of the human race?

But this is only material wastefulness, however grand the scale. What is truly troubling is the determined fearfulness exhibited in our much-publicized campaigns against “Terrorism.” This may be seen most dramatically perhaps in how civil aviation passengers are routinely treated—and, even more revealing, in how we all put up with what is thereby done to us.

Once airliner cockpits were secured against forcible entry by hostile passengers, the threat of another World Trade Center-style assault was eliminated—and would be known by would-be assailants to be virtually impossible. Airport security, then, is designed “merely” to protect individual airliners from destructive sabotage. But there still remain ways, of course, to bring down individual airliners—and, terrible as that may be, it is hardly of the scope of what happened in September 2001.

Here, as elsewhere, there is the question of how our vast resources can best be used. It is not hard to imagine how tens of thousands, perhaps even hundreds of thousands, of lives could have been saved during the past decade with half of the resources devoted to airport security alone. The most effective use of resources (in anticipating, for example, the current equivalent of “a suitcase dirty-bomb”) still depends upon effective police work and the imaginative use of Intelligence resources. And it very much helps here, we again notice, to have the good will of peoples and governments around the world, something that is much more likely if we are generally perceived to be both decent and sensible.

However “counterproductive” various defensive measures may be, the most troubling aspect of our security measures lies in what they reveal about, and do to, the American character. Indeed, there may even be something demeaning about a determined program of public announcements which insist, again and again (for years now), “If you see something, say something.” What is generally seen (and heard) is a “something” which consists of a steady promotion, in effect, of fearfulness—and much should be said about that!

Particularly revealing here have been the occasional rampages conducted by lone gunmen who assault peaceful gatherings. The dreadful Virginia Tech and Northern Illinois University episodes readily come to mind. Such gunmen tend to be suicidal—so they cannot be deterred by threats of punishment, at least in this life. What is more likely to discourage them (besides a proper upbringing) is the fear that the people they target will not turn into scurrying targets desperate to avoid being shot. If it should be suspected that such assemblages will not act as they have heretofore, but rather will go after (and take alive) even an armed assailant (throwing at him whatever is at hand—chairs, clothing, backpacks, bottles, laptops, etc.), the dynamics of “the situation” would be radically changed.

What the marauding gunman typically counts on is a radical individualism, which has each potential victim looking out only for himself. The spirit that needs to be encouraged here (by school administrators, for example) is that evidently exhibited in a targeted airliner over Pennsylvania on September 11, 2001. Indeed, there must already be assemblies that a murderous gunman knows better than to attack, such as a locker-room full of football players.

However sensible we are in discouraging an unbecoming fearfulness among ourselves, there do remain problems associated with the ventures we already find ourselves entangled by. What more should we reasonably expect to accomplish hereafter in Afghanistan? What lessons can be learned from the experiences there of Alexander the Great, the British, and the Russians? Even before Osama bin Laden was hunted down and killed, we could have plausibly argued that we had already accomplished our primary (if not even our only legitimate) purpose in that “country.” Other peoples and their governments had been warned thereby about what can happen to them in turn if the United States is criminally attacked again as a result of operations that are permitted to be developed elsewhere.

Then there is Iraq—with all kinds of challenges related to the status of the Kurds, the maneuvers of the Iranians, and the legitimate interests of the Israelis, to say nothing of an incipient civil war. All of these challenges might seem to be, not improperly, addressed (but not really settled) by establishing in an autonomous (if not even in an independent) Kurdistan a permanent American military base. I can wonder what one’s military service on such a base would be like, recalling my experience in the 1940s as an Air Corps flying officer at my last base overseas (Dhahran, Saudi Arabia). I can even wonder, for example, whether our personnel at any Kurdish base would have food of the quality we enjoyed at Dhahran, where we benefitted from the culinary skills of Italian prisoners-of-war. However that may be, would a Kurdish enterprise on our part be a “perpetually” entangling Korea all over again?

A survey of our Present Situation should at least notice the economic circumstances of our day (if not of our decade). Will Rogers could say of the Great Depression that it would be the first time that a nation went to the poor house in an automobile. Today, the counterpart to that automobile may be sophisticated (constantly “improved”) electronic devices that put us, instantly, in touch with “everybody” everywhere—and with no one, really, anywhere? That is, has an electronically-promoted globalization had the effect of making it difficult (and, for many, perhaps even impossible) to form any vital community upon which one can rely? Is an isolating kind of Individualism thereby encouraged?

What a thoughtless Individualism can mean, in practice, is indicated by the caustic responses to a recent tax-increase proposal by one of our most prominent billionaires published by him in the New York Times (August 15, 2011), where he ventured to explain that the “super-rich” really paid a significantly smaller proportion of their income in taxes than the typical middle-class taxpayer. This argument was reinforced, a week later, by the “Doonesbury” comic strip (of August 21, 2011) which played with a report that “the 400 richest families in America now hold as much wealth as the bottom 50% of the country combined.”

Whatever the merits of these and like debates, we have seen, during the past decade, financial adventurers willing to put others (including the community at large) at great risks while they have personally managed to survive in quite comfortable circumstances, which they can desperately protect thereafter from efforts by any community to require them to share more of the common burdens. And that, it should be suggested, may not really seem to be right.

SEPTEMBER ELEVENTH:    LESSONS OF AN INSTRUCTIVE DECADE

George Anastaplo

 

Part Three:    The Future

            One way or another, we will get past Afghanistan and Iraq, Iran and North Korea. But there are better and worse ways of proceeding. The better ways are more likely to be available if our political institutions are reasonably efficient.

An illusion we have long had is about the efficacy of the Presidency. That office, because of its high visibility, does seem to be particularly powerful. But at times it can be very much dependent on the whims of public opinion, whims often dictated by chance circumstances.

Then there is the United States Supreme Court, which exercises, sometimes irresponsibly, a power never intended for it by the Framers of the Constitution—the power routinely to subject Acts of Congress to constitutional scrutiny. Reservations that a few of us still have about the propriety of the Judicial Review of Acts of Congress can now seem to have the aura of a Lost Cause. A recent dramatic extension of judicial usurpation was seen in what the Supreme Court did in December 2000, presuming as it did to insist on exercising the power assigned by the Constitution to the House of Representatives for determining who the President of the United States would be.

The Presidency (however selected) will continue to be subject to the gusts of public opinion. And the Supreme Court will continue in its presumptuous usurpations, even as it insists upon abdicating its intended office as the most significant judicial shaper of the common law of the country. But it can be hoped that the Congress may be helped to be more effective than it seems to be these days. Illustrative of its failure to assert itself as it should, for the good of the country, is how Congressional declarations of war have come to be dispensed with since December 1941.

Also illustrative here is what has come to be allowed in the Senate of the United State with not the use but rather with the threat of the use of the Filibuster that only a 60% super-majority can overcome. The regular majority is thereby frequently impeded (or so it can seem) from exercising the power constitutionally available to it, power necessary for the good of the country that should be, and should appear to be, available.

What we know as “super-majorities” were indeed provided for in specified circumstances in the Constitution. Otherwise, it was expected, the Senate majority would usually rule, just as electoral majorities do (for example) in selecting who the Members of the Senate from any particular State are to be. (The authority of the majority of a proper assembly is even insisted on, in 1215, in Chapter 61 of Magna Carta.) It would be a notable service to responsible legislating, and hence to the Country at Large, if a Point of Order should now be raised in the United States Senate, insisting upon the right (and, really, the duty) of the majority to rule in ordinary circumstances—a Point of Order which the Vice President (as President of the Senate) would then confirm. It can be hoped that the Supreme Court would not subvert thereafter what the Senate had done in thus contributing to the enactment of any contested statute by “a mere majority.”

Of course, a responsible Senate would not cut off debate before the issues relating to any measure before it have been thoroughly considered. It can even permit old-fashioned filibustering to be indulged in, but the way the “Filibuster” has come to be employed in recent decades has had the effect of discouraging genuine debate. Those who invoke the current Filibuster rule do not do so in order to air their positions, but rather (in effect) to discourage (if not even to suppress) any serious discussion of issues. A self-respecting legislative body, sensitive to the spirit as well as to the letter of the Constitution, would not permit its prerogatives to be abused as they have been by the current practice with respect to nominal filibusters. Competent lawyers, properly familiar with our constitutional heritage, should be able to develop these and like points in the ways needed for effective and responsible governance.

It is somewhat reassuring these days that our decade-long crisis has not led to that crippling curtailment of our vital freedom of speech that we had to endure during much of the Cold War. But our freedom of speech guarantee was intended to be put to far better use than the Supreme Court seems to recognize. The Court has, in the name of freedom of speech, insisted on dubious rulings about video-games regulations, campaign-financing laws, etc. A harbinger of how “freedom of speech” was to be vulgarized could be seen in Cohen v. California (1971).

A healthy reading of the First Amendment depends on the recognition of the grounding of the traditional “freedom of speech” guarantee in the assurance, given centuries ago, to participants in parliamentary discussions. It is such an assurance which makes it more likely that a community’s issues will be properly discussed. And it is an assurance that is reinforced (as seen in John Milton’s Areopagitica) by the protection against prior restraints, or official censorship, of publications.

Among the issues to be discussed, again and again, is whether our resources, spiritual as well as material, are being properly used. Those resources include the venerable writ of habeas corpus which has seemed at times, during the past decade, to be cavalierly dealt with by both Courts and Executive officers. The underlying issue here is as to what is indeed terrible and how that should be dealt with by a responsible community. What, we must wonder again and again, is truly fearful—and how can it best be indentified and responded to? Such an inquiry should expose, for example, the limitations of the 2001 PATRIOT Act as well as our covert reliance on torture.

I have been privileged, during the past decade, to develop two sets of serial publications in addition to, and bearing upon, the September Eleventh materials that I have been producing. One set has been devoted to a projected ten-volume compilation of “constitutional sonnets.” The first three of these volumes have been published by the University Press of Kentucky (Reflections on Constitutional Law [2006], Reflections on Freedom of Speech and the First Amendment [2007], and Reflections on Life, Death, and the Constitution [2009]). The fourth volume, Reflections on Slavery and the Constitution, is to be published later this year by Lexington Books. And a fifth volume, Reflections on Religion, the Divine, and the Constitution is now being prepared for publication.

A second set of serial publications draws on my thirteen encounters, in 2000-2001, with a thoughtful veteran of Nazi concentration camps, camps which were one of the monumentally awful consequences of our monstrous First World War folly (Simply Unbelievable:    Conversations with a Holocaust Survivor). Four of these conversations have already been provided as appendices to various things I have published during the past decade. (The conversation currently included in Volume 35 of the Southern Illinois University Law Journal [“Why the Jews?”] provides citations to the places where the other published conversations may be found. The first three are also available on the anastaplo.wordpress website.) It is to be hoped, of course, that all of these conversations, after having been placed here and there [D.V.] during the next few years, can be collected someday in one volume.

My Reflections series, following upon treatises that I have published since 1971 on the Constitution, explores facets of the constitutionalism which is at the foundation of my offerings (here and elsewhere) with respect to our often-questionable responses as a community to the dreadful September Eleventh challenge. My Simply Unbelievable Holocaust series can remind us of the horrible things that human beings are capable both of inflicting on others and of somehow enduring. It may be hoped, of course, that we can, on reflecting upon such matters, discern and cherish what is truly appropriate for us to feel and to think—and hence to know and to do—both as citizens and as human beings.

George Anastaplo is Professor of Law, Loyola University of Chicago; Lecturer in the Liberal Arts, The University of Chicago; and Professor Emeritus of Political Science and of Philosophy, Dominican University. His publications include more than a dozen books and two dozen book-length collections in law reviews.

 

This essay has been published, with quite modest editorial revisions, in the Chicago   Daily Law Bulletin, September 9, 12 and 13, 2011. The titles provided by editors for the three articles are “Local professor examines the historical record,” “Making sense of the current state of affairs,” and “Efficiency of political institutions.”

 

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