20 Years After 9/11 – Lawfare

Like nearly all of my contemporaries in the national security law space, 9/11 was a formative professional experience for me, back then a low-level legal assistant at Main Justice, the Justice Department’s headquarters on Pennsylvania Avenue in Washington, D.C. Since leaving government service more than a decade ago, I’ve from time to time been grateful for the space on Lawfare to write a few words reflecting on 9/11. You can find them here, here, here, here and here. In years past, I’ve looked primarily to the text of the 9/11 Commission Report to try to glean lessons for the national security policy community and for law students who were part of a seminar I used to teach at Georgetown Law on intelligence law, policy and reform. Given the 20th anniversary of the attacks, and the now-complete military withdrawal from Afghanistan in August, this might seem like an appropriate time to reflect anew on the 20 years since. No doubt, there will be reviews, studies and probably even investigations. But for me, given the past year and a half of a pandemic that has killed a 9/11-worth of Americans day after day, witnessed a violent assault on the Capitol and a summer of climate-related disasters, the present moment feels less like a time to scour the past 20 years for lessons and instead a time to close the chapter on the 9/11 era. Although international terrorism will remain a priority, the country has a wider range of important national and homeland security challenges to deal with. And while countering international terrorism will remain a critical function of the national and homeland security communities in the long term, they need to adapt more quickly to the challenges that threaten Americans’ safety and the effective functioning of the nation’s constitutional democracy. 

 

A Look Back

I did not believe then, and I don’t assess now, that 9/11 and al-Qaeda presented an existential threat to the United States. It did, however, present a substantial danger of death and violence that was deeply unsettling to the country and, not insignificantly, the responsibility of the federal government to prevent future such events. The fear of continued militant Islamist terrorism was a very real threat that has been subject to some minimization and under-appreciation in contemporary discussion and commentary surrounding the end of U.S. military engagement in Afghanistan. My experience that day did, however, leave me with the observation that the federal government was not as secure as I might have previously thought. If the continuity and functioning of the government were not in grave danger after 9/11, its leaders and institutions were certainly knocked a bit off balance. 

Although I’ve included some of this relevant background when testifying before Congress from time to time, one thing I’ve never done is share what the day was actually like for me, a 26-year-old legal assistant and nighttime law student working in a small national security office at the Justice Department.. The office I worked for was small, relatively unknown and nondescript; a precursor to what is now the department’s robust National Security Division. 

A few memories from the day:

Twenty years ago on 9/11, I was working at my cubicle at Main Justice, when a secretary came up behind me and told me to come to our office conference room. I nodded, said I’d be there and then continued to work at my computer. There were no TVs or cell phones in my area, as I worked in a SCIF, a secure office space designed for classified information. I was a third-year law student, attending American University’s Washington College of Law at night and working full time at the Justice Department during the day. My official title was the decidedly unglamorous bureaucratic one of “paralegal specialist.” I really hated that title, but I viewed it as better than “intern,” which one of my senior colleagues insisted on conferring on me for the years that I worked with him. To this day, I’m not sure he ever knew I drew a salary to work there. 

In any event, as a law student, I was privileged to work on sensitive counterterrorism and counterintelligence cases, including preparing applications  that were presented to the attorney general for approval and then to the Foreign Intelligence Surveillance Court (FISC), the panel of federal district court judges who do double duty approving sensitive surveillance and search authority for foreign intelligence purposes. It was a unique, interesting and meaningful job. And so I probably thought that whatever document I had up on my desktop was more important than whatever was going on in the conference room. 

A few minutes later, the secretary came back. “You need to come, now.” I headed over. In the windowless conference room, the head of office informed us of the attacks on the World Trade Center. At some point shortly after the meeting broke, I was directed to go across the street to FBI Headquarters, situated on the other side of Pennsylvania Avenue, with a senior attorney with whom I worked closely. Our job was to stand up a satellite office for our group of attorneys, so that they could be co-located with the FBI agents in the Usama Bin Laden Unit  (there were only five supervisory special agents allocated to the unit prior to 9/11, one of whom is now my husband of 17 years), several national security lawyers from the FBI’s Office of General Counsel, and the massive investigation that was about to begin, run out of the FBI’s Strategic Information and Operations Center (SIOC). 

My memory of the day is not perfect, and I did not keep a contemporaneous journal. And so what I have from this point forward is a series of anecdotes, in no particular order, to the best of my recollection, which may differ from the recollections of others. I think most of this happened on the day of 9/11, but it’s very possible certain anecdotes happened a day or two (or maybe more) later. The days were long and ran together. My intent in sharing them is to provide a small, limited glimpse into what it was like to be at Main Justice and FBI Headquarters on 9/11, from the view of the lowest person on the totem pole: 

• I remember a time that morning when we feared there could be as many as 50,000 people in the towers, who might be dead.
• I remember needing air. FBI headquarters had been evacuated except for essential personnel, but at some point during the day I went outside, walked a block or so, and stopped to look around. I remember seeing people who were truly, deeply scared and panicked—racing down sidewalks, running to their parking garages to get their cars. Others navigated the quickly increasing traffic downtown in their cars, frantic to get home to loved ones. 
• I remember thinking I better get back to work. 
• Back upstairs in SIOC, we set up computers, the big, clunky, block screen kind. Over the coming days and weeks, there could be as many as 10 or 12 lawyers, agents and analysts in what was a very small room. I know some of these former colleagues read Lawfare, and I remember how hard they worked at great personal sacrifice, not just that day, but for days, weeks, months and even years thereafter. 
• I remember taping sheets of paper to the walls of our small room that contained lists of who in the Justice Department could see certain information, because the “wall” was still in place. I remember thinking that it was pretty nuts that we had to do that given the attack of the day. But I kept my thoughts to myself and helped keep the lists up to date. 
• I remember seeing then-FBI Director Robert Mueller, just a few days into his tenure, walking briskly past our office on the floor of SIOC. I remember being comforted by his visible presence.
• I remember calling home and reaching my dad by phone. I remember worrying I would get in trouble for making a long-distance personal call from SIOC. I remember telling him that I was fine, but that he probably wouldn’t hear from me for a while because we had a lot of work to do. 
• I remember a quiet that came over SIOC as those present learned that former FBI agent John O’Neill had died in the World Trade Center towers. 
• I remember one of my supervisors broke a blood vessel in his eye, presumably from the stress.
• I remember (again, this one may have been later) hearing about how senior leaders of the department had been driven by their security detail in a car across the lawn of the Mall. Since cars don’t drive across the Mall, I remember feeling uneasy about that, as if the highest levels of government were perhaps panicked, and not so in control. 
• And I remember (at some point in the days after the attacks, in a dark corner of SIOC one evening well out of the earshot of others) asking one of my supervisors why we weren’t exploring using the 15-day suspension of FISA’s court order requirement under circumstances when Congress authorizes war. And I remember that his response was something along the lines of “because we’re just not, we don’t have to, we’re not there, we will get these authorizations done” under the authorities we have. It was a fairly significant lesson on the rule of law that a third-year law student could have the benefit of receiving on the job. I took it to mean: We have a legal framework, and we will move heaven and earth to abide by it. That lesson became more complicated when it was revealed years later that, in fact, in some circumstances, the statute was bypassed and executive authority was relied upon instead. 

In the days, months and years after 9/11, I remember persistent and credible threats by al-Qaeda and its affiliated network of international terrorists to conduct attacks here at home and how my colleagues at the Justice Department, the FBI and the intelligence community, as well as the judges and staff at the FISC, worked around the clock to stop them from happening. I think about that threat environment when modern-day commentators minimize the reason the United States went to war to begin with. And truthfully, from a practical professional perspective, that formative experience probably ruined me. I never again have viewed any job deadline quite as urgently as working to prevent a bomb going off. 

But, obviously, my experience was really not all that remarkable. There were others in the Justice Department and FBI whose actions in service that day were truly heroic. And I am ever mindful of the insignificance of my own experience in the context of others who suffered great loss. 

 

A Look Ahead 

Long before I was fortunate enough to secure an entry-level position at the Justice Department right out of college, I didn’t attend rigorous teenage outdoor adventures or have fancy professional internships over my high school and college summers back home in Cleveland, Ohio. Instead, I was a summer camp counselor at Jewish day camp. One of the jobs of a counselor was to help out with swim lessons, so we had to learn CPR and other water safety lessons. One of the things you learn about swimming safety is that drowning happens quickly and quietly. There’s not much splashing and noise; instead, it’s a quick, silent sinking. So silent, in fact, that a whole swimming pool full of distracted kids and adults might not even notice. 

When I think about how American democracy might wither and die, I don’t think about 9/11. I think about this much earlier lesson on drowning. Contrary to the tagline, U.S. democracy won’t die in darkness. Instead, if it comes to that shameful outcome, it will be in broad, hot daylight while everyone looks over at the sparkly spectacle. It will sink silently, while the crowd is distracted by the latest manufactured political crisis or celebrity demagogue. 

If national security is fundamentally about protecting the continuation of our constitutional democracy, then the national security community should be focusing on threats here at home as seriously as threats from abroad. That means being capable of recognizing the current and emerging threat environment. It also means not forgetting but moving through and then beyond the past. The decision President Biden made to complete the withdrawal from Afghanistan last month, and his steadfastness to it, has the potential to force the national security community, and the nation more broadly, to move forward. It’s a necessary act, even if deeply complicated and imperfectly executed. He has illuminated the path. Time will tell if the national security community follows it. 

This country has problems, and I think they are worse than they were in 2001. Like most Americans, I see this complicated national picture manifest at home. I have now raised two generations of kids with my husband—one a stepchild and two of our own—and the health and safety threats they face seem deeper and more insidious from one decade to the next. I remember when we instructed  my then-high school stepson to carry his backpack with heavy books on his chest if there was a live shooter at school. That was a decade ago. Now, we send our children to school with masks they wear for seven hours per day to protect themselves and their classmates and teachers, and we are just grateful that they even get to go to school. Neither thought would have ever crossed my mind when I was school age, myself. Meanwhile, we know that within our network of extended family and friends and professional associates are those who decline to be vaccinated or otherwise dismiss the seriousness surrounding the spread of the coronavirus. It’s as if those we thought we knew simply don’t care that more than 640,000 Americans and well over 4 million people worldwide have died of the virus in less than two years. Public health safety threats are no longer opportunities for national unity and common purpose; instead, they are tearing apart families and communities based on misinformation, denial and radicalization. Americans shouldn’t have to think this hard about security on a daily basis; our government and politics and society is doing something very wrong that places everyday Americans in a constant state of exhaustion and credible fear, whether from a deadly virus variant, a devastating flood, a shooting at the grocery store or the nation’s poisonous politics. 

The United States’ domestic political crisis must not be underestimated. After five years of warning about the damage former President Trump posed to U.S. national security, I’d probably be wise professionally to move on from that, too. But Trumpism has unleashed an abandonment of truth, science and reason that is continuing to poison not just public discourse but the nation’s political process as well. And for those reasons, I think it is distinguishable, and presents the possibility of greater violence and long-term consequences, from the 1960s, the last recent U.S. era of civil unrest, political assassinations and division. In the current environment, everyone from federal elected representatives to cybersecurity officials to election workers might get caught up in the toxic environment of threats of violence based on their willingness to be in public service.

Although the Biden administration has taken the lead in producing the first-ever domestic terrorism strategy, the broader national security policy community’s general apathy toward the events of Jan. 6 is distressing. And I still don’t understand why Washington’s major newspaper covers the daily investigative developments related to Jan. 6 on the Metro page, as if it is a local legal interest story, not an event of national significance with international consequences. To be clear, had just one of many things gone differently that day—had Vice President Pence lacked courage; had the Capitol Police and Metropolitan Police Department given way; had Officer Eugene Goodman not been on duty—the outcome could have been far different. That difference even has a range, from members of Congress or their staff being hurt or even killed, to the completion of the certification of the election for president being delayed indefinitely. The constitutional transfer of power is not some bit of arcane political pageantry; it is the whole ballgame. And the U.S. came very close to losing it on Jan. 6, 2021. 

For the law student or college student today looking for areas where one can contribute meaningfully to national or homeland security-related public policy, there is still important work to be done in counterterrorism or defense or cybersecurity. But the landscape is even broader now, and students today who want to protect the United States at home have the opportunity to look at how the international community can cooperate to end the current pandemic and prevent the next. They can look to the immediate crisis in climate—from a scientific and legal and social science perspective. And especially for the lawyers-to-be, they can look at developing skills to protect the nation’s strained democracy, whether by contributing to civil rights litigation or participating in the political process at the state and local levels, so that the process is not overtaken by the extremes. And across this large field of work, they can consider serving in government to ensure that the rule of law has a voice when the next crisis hits. 

 

Moving Through and Beyond the 9/11 Era 

My final observation will probably resonate with only a small group of Lawfare readers, but I hope it provides a meaningful reference point for some: This year, the 20th anniversary of 9/11 is situated in the period between Rosh Hashanah, the Jewish New Year, and Yom Kippur, the ​Day of Atonement. For those who observe, this period of days between the two holidays is a time of reflection. By the conclusion of Yom Kippur, the “book of life” closes and is sealed until the next year. For those for whom this time of year has meaning, it is a fitting time to break free from the professional and, at times, accompanying personal grip of the 9/11 era, close the book, and take on new challenges that lie ahead. As for me, this will be my last 9/11 reflection piece for Lawfare.