Ryan Goodman of Just Security asked me to contribute to a project they were doing with NYU’s Reiss Center on Law and Security: a collection of short personal and analytically grounded reflections by each invited contributor on “where they were on 9/11; how it shaped their professional path; and how that experience continues to inform the work they are doing today, particularly in the current historical moment.”They have now published that here. This is what I submitted:
For most people, September 11, 2001, was a visual event: the towers burning live on television. I experienced it first on the radio. I was a young Miami Herald reporter covering Broward County government, reverse-commuting up I-95 toward a 10 a.m. commission meeting that was cancelled before I arrived. The day set off localized freakouts everywhere: I recall Broward deputies being dispatched with rifles to guard the entrance to Port Everglades, as if Al Qaeda might assault it. Soon we learned the hijackers had actually been living in South Florida, and I was among the reporters sent to the seedy motels they had stayed in, sometimes just hours behind the FBI. After the hijacker-pilot Marwan Al-Shehhi checked out of one, the owner fished a duffel bag from his dumpster and found Boeing 757 manuals, flight path maps and a binder of handwritten notes; the owner told me had kept the binder but tossed the notes, which garbagemen carted away the day before the attack. Recalling chatting with Al-Shehhi in the motel laundry room, his wife marveled that had she only known, she could have locked him inside and called the authorities.
A journalism fellowship took me to Yale Law School in 2002-03. Torture, warrantless wiretapping, and drone strikes were not yet public, but the legal controversies generated by the already-known parts of the Bush administration’s response to 9/11 dominated discussion. My constitutional law small group under Paul Kahn practiced briefs and oral arguments around a set of cases about the bulk closure of deportation hearings to the public and press. After watching a Harold Koh talk about the 1990s fight over HIV-positive Haitian refugees in legal limbo at Guantánamo, I took an international human rights lecture class from him spring term. I also took a seminar on practicing national security law from Jamie Baker, the former NSC legal adviser in the Clinton administration, and participated in a student reading group run by Steve Vladeck, then a 2L, working through Supreme Court precedents on topics like military tribunals in the Civil War and World War II, suddenly relevant again in the 21st Century.
This reoriented my journalism career around the turbulent intersection of national security, individual rights, the rule of law, and what all that meant for the future shape of American democracy. Back at the Herald in the summer of 2003, I created a regional homeland security beat and then also temporarily took over covering Guantánamo when the Southcom beat reporter, Carol Rosenberg, was sent to cover the Iraq war. Soon, The Boston Globe hired me for their Washington bureau. In theory, my job was to cover the Departments of Justice and Homeland Security. In practice, I mostly focused on 9/11 legal policy themes, which reached as well into places like the Pentagon, CIA, White House, Congress and courts.
In 2005, that meant I was closely covering Senator John McCain’s fight with the White House over his proposal to tighten a ban on torture, and my focus on constitutional dimensions led me to become the only mainstream media reporter to write about Bush’s signing statement asserting a commander-in-chief power to override the new law. That led to a project examining all of Bush’s overlooked signing statements, which turned out to be a publicly available roadmap to the extraordinary executive power theories the administration team was also pushing behind closed doors. Exploring the Bush-Cheney project to expand presidential power – its intellectual history in Cheney’s post-Vietnam/Watergate experiences, how 9/11 threw it into overdrive – became my first book and carried me to The New York Times. Several years later, Georgetown University asked me to co-teach a seminar about the Constitution and national security with Michael Davidson, the recently retired Senate Select Committee on Intelligence general counsel. Designing the syllabus for that course helped lead to my second book, about Obama’s post-9/11 presidency and the charge that, contrary to the expectations created by his campaign rhetoric, he often acted like Bush on counterterrorism issues like the surveillance state Obama inherited and kept, as Edward Snowden revealed.
As the post-9/11 era gave way to the Trump era, conflict over the expanding scope and eroding limits of presidential power became urgent in ways that pushed in new directions: emergency powers invoked to fund a border wall, subpoenas stonewalled, the Roberts Court’s blessing of presidential immunity and unitary executive-style firings, the imposition of direct White House control over criminal prosecutions and the war powers issues raised by the boat strikes and Iran conflict. Trump’s executive power grabs build on precedents Bush and Cheney established after 9/11, tracing back a clear line that, for me, connects the current constitutional upheaval to that morning on I-95, listening to the towers burn via the radio.