9/11 was 25 years ago, but the emergency never ended | Opinion

The first time emergency powers changed my life, I was six years old. In 1975, Prime Minister Indira Gandhi declared a state of emergency in India. My father, a former editor of an opposition magazine, was wanted for his writings. We moved from place to place. Eventually, we had to sneak out of the country.

We ended up in Canada. At six, I knew nothing about constitutional rights, due process or emergency powers. I just knew my father was wanted and we had to leave.

Almost two decades later, as a law student, the subject found me again. My first law review publication, in 1994, was a review of the book Human Rights in Crisis: The International System for Protecting Rights During States of Emergency. The question was personal as much as legal: What happens to rights when governments confront a crisis and decide the ordinary rules are no longer enough? I later pursued the same questions in my doctoral research on national security and emergency powers.

Seven years later, it wasn’t academic anymore.

On September 11, 2001, I was driving to my law office in Toronto when a friend called and asked, “Did you see?” I hadn’t. I changed course and stopped at my parents’ home. We watched in horror and disbelief. How could anyone deliberately do this to innocent people?

Nearly 3,000 people were murdered that morning. We had no idea then how much more death and suffering would follow. As the shock sank in, I wondered what would come next. As a Muslim lawyer, I was already involved in civil liberties issues affecting Muslims.

It didn’t take long. Mosques were attacked. Muslims, Arabs and people perceived to be Muslim or Arab were assaulted and harassed. People who had nothing to do with the attacks suddenly found themselves answering for them.

Something else was happening too. In the name of national security, the boundaries of government power were shifting.

Governments had an obligation to respond to a genuine threat. But within weeks, Congress passed the USA Patriot Act, greatly expanding surveillance and investigative powers. The Authorization for Use of Military Force gave the president broad authority to use force against those connected to the attacks. Guantánamo, extraordinary rendition, warrantless surveillance, watch lists, no-fly lists and drone warfare followed.

The attacks also reshaped government itself. The Department of Homeland Security (DHS) was created, bringing 22 agencies and offices under one department. Immigration and Customs Enforcement (ICE) emerged from that reorganization in 2003, placing immigration enforcement within the new homeland security apparatus.

That same year, the new security environment reached my own family. My father traveled to Florida with another Canadian imam for an Islamic conference. U.S. authorities detained and interrogated them and ultimately refused them entry. Almost three decades after I had fled India with my father because the government wanted him for his speech, he was again caught in a security apparatus built in response to an emergency.

The circumstances were profoundly different, but both experiences taught me something about power: Powers acquired in an emergency are much easier to acquire than to surrender.

Each measure had its justification. Together, they changed the baseline. Powers and institutions created for an extraordinary moment became part of ordinary government.

By 2008, I was still wrestling with the same question. In a review of David Dyzenhaus’ The Constitution of Law: Legality in a Time of Emergency, I discussed the “normalization of the exceptional.” Dyzenhaus had warned that the post-9/11 emergency was being treated as having “no foreseeable end and so is permanent.”

Twenty-five years later, that warning looks uncomfortably like a description.

The consequences went far beyond civil liberties—and far beyond America’s borders. Brown University’s Costs of War project estimates that the post-9/11 wars caused 4.5 million to 4.7 million deaths, directly and indirectly, and displaced at least 38 million people. Much of that burden was borne by people far from the United States. The victims of 9/11 deserved justice. We also have to reckon with the enormous human cost of what followed.

I spent much of the next 25 years dealing with the domestic consequences as a lawyer, civil liberties advocate and later a law professor, working on anti-terror laws, no-fly lists and the scrutiny of Muslim charities.

The phrase “war on terror” is heard much less often today, but much of its infrastructure remains, embedded in immigration, borders, financial regulation and even the charitable sector.

And this is no longer primarily a Muslim story. Legal tools developed for one feared group rarely remain confined to that group. The target changes. The machinery remains.

But there is a question we haven’t asked often enough: Did these departures from ordinary legal protections actually make us safer? Those asking us to surrender rights in the name of security should have to show not only that the threat justifies it, but that giving up those rights actually makes us more secure.

None of this means terrorism is not real. Governments must investigate genuine threats and prosecute those who plan or commit violence. But as Justice Robert Jackson warned 75 years ago, it is easy in wartime to “reduce our liberties to a shadow, often in answer to exaggerated claims of security”—a warning that applies whether threats are exaggerated or merely perceived.

Today, I teach law in Los Angeles. Many of my students were not alive on September 11. Watch lists, mass surveillance, securitized borders, drone warfare and expansive national security powers are simply part of the world they inherited. What my generation experienced as exceptional, theirs inherited as normal.

When I was six, I didn’t know what a state of emergency was. I knew only that the government was looking for my father and we had to leave.

Twenty-five years after September 11, after wars that killed millions, displaced tens of millions and extended the consequences of America’s emergency far beyond its borders, I find myself wondering what I was too young to ask then: What happens when the emergency ends, but we have grown accustomed to living as though it hasn’t?

Faisal Kutty is professor of law at Southwestern Law School.

The views expressed in this article are the writer’s own.