Sept. 11 Changed the Law, Way We Talk About It Terms such as "Patriot Act," "unlawful enemy combatant" and "Guantanamo detainee" were not part of the average American vocabulary before Sept. 11, 2001. Six years later, the legal world is only just coming to grips with the attacks' impact.
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Sept. 11 Changed the Law, Way We Talk About It

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Sept. 11 Changed the Law, Way We Talk About It

Law

Sept. 11 Changed the Law, Way We Talk About It

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ROBERT SMITH, host:

The impact of September 11th was immediate on the skyline of New York, the Pentagon, and in the hearts of Americans. But the events of that day also set in motion a more subtle transformation. The legal system in the United States was seen as inadequate to handle the new war on terror and the nation's leaders began to reshape the balance between liberty and security.

Dahlia Lithwick, legal correspondent for DAY TO DAY and Slate.com joins as us. Hey, Dahlia.

Ms. DAHLIA LITHWICK (Slate): Hi, Robert.

SMITH: Well it's been six years, has there been enough time to evaluate the legal impact of September 11th?

Ms. LITHWICK: You know, I think we're probably just beginning to understand what happened. I think it's clear that the legal world sort of tipped on its axis after 9/11, and there was a sense, I think, in the government and probably among the public that legal failures had caused the problem and so legal solutions would fix the problems. And that led to a very, very wholesale effort to redefine the laws of war, reexamine our criminal surveillance laws, all sorts of very, very broad efforts that we're only really now starting to evaluate and to in effect say was the fix a good fit for the problem or was it sort of an over-correction? So I think that it's really taking this long to kind of think critically about some of those steps we took.

SMITH: Well, sure, we've been talking about the balance between security and freedom for years now. Have we reached sort of a balance point on, say, like the Patriot Act, for instance?

Ms. LITHWICK: In some ways. I think, you know, it's fair to say that the Patriot Act really was just the government's wish list for more law enforcement powers and it was passed fairly uncritically by a Congress, many of whom didn't really read it. So now I think we're pulling back a little and as recently as last week we had a federal judge in New York who struck down some of the provisions in the Patriot Act that had to do with so-called national security letters.

Those are sort of warrantless subpoenas, and there was a provision that would have gagged the recipient of those subpoenas from talking about it. The judge in New York - here we are all this time later - says, hey, that is that the, quote, "legislative equivalent of breaking and entering." It's way too excessive and has to be struck down.

SMITH: Well, 9/11 also highlighted this age-old issue of presidential power. I mean, certainly the president attempted to use this in the warrantless wire tapping issue, the attempt to classify people as enemy combatants. Now, the Supreme Court has pushed back on this, but can we say the constitutional balance of power has actually shifted?

Ms. LITHWICK: I think we probably can. I think we're going to start to see it shift back, Robert. But it's certainly the case, as you said, that this president has staked out the most extreme vision of sort of unilateral, unchecked executive power most of us will have seen in our lifetime, a sort of variant on Richard Nixon's claim that if the president does something it's never illegal.

We saw it in the torture program, we saw it in the extraordinary renditions to black sites, we saw it in the labeling of people enemy combatants and suppressing sort of fundamental rights that they may have had to due process, in tandem with all these unilateral executive actions.

SMITH: Well, what would you say the biggest legal issue that still needs to be resolved is?

Ms. LITHWICK: One of the most imminent ones remains to be a question of the trials for the folks who are down at Guantanamo; many of them who have been sitting down there without any sort of meaningful due process for years and years. The Supreme Court is poised to hear that case this fall. But I think there are other, larger questions about what kind of warrantless wiretapping is acceptable in light of new technologies and questions about our interrogation policies that may not be squared away.

So there really is, I think, a whole enormous menu of areas where the president has sort of taken his position and it really lies with the Congress and the courts to determine whether those positions are too extreme.

SMITH: Our regular legal correspondent Dahlia Lithwick of Slate.com. Thanks for joining us again.

Ms. LITHWICK: It's always a pleasure.

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