Aronofsky, David

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Case Western Reserve University School of Law

Case Western Reserve Journal ofInternational LawVolume 34 | Issue 22002September 11 Reflections from Ground Zero:Parent, International Law Teacher and Rule of LawPerspectivesDavid AronofskyFollow this and additional works at: https://scholarlycommons.law.case.edu/jilPart of the International Law CommonsThis Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons.It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western ReserveUniversity School of Law Scholarly Commons.Recommended CitationDavid Aronofsky, September 11 Reflections from Ground Zero: Parent, International Law Teacher and Rule of Law Perspectives, 34 Case W.Res. J. Int'l L. 185 (2002)Available at: https://scholarlycommons.law.case.edu/jil/vol34/iss2/3SEPTEMBER 11 REFLECTIONS FROM GROUND ZERO: PARENT,INTERNATIONAL LAW TEACHER AND RULE OF LAW PERSPECTIVESDavid Aronofsky*September 11, 2001 has forever impacted me from multipleperspectives.First and foremost, I write as a father whose older daughter began herNYU education only a few short weeks before September 11. We nevercontemplated the far distance between Manhattan and Missoula, Montanauntil that morning when we heard the news and realized she was only a fewblocks from the World Trade Center. My wife and I lived many anxiousmoments wondering whether she was safe, unable to contact her. A fewhours after the attack, she got an e-mail to me indicating that she had seenthe Towers fall and was scared, but otherwise okay. About 30 minuteslater, she reached me by cell phone in my office and I was able toconference her mother into the call. Just talking to each other at thatmoment was the most comforting moment we'll likely ever have as afamily.I also teach Public International Law at The University of MontanaLaw School with a wonderful co-teacher colleague who is a career federalgovernment public international law attorney living in Missoula. Ourbackgrounds complement each other well since we both have over 20 yearsexperience as working international lawyers, with much of that time spentin Washington, D.C. After sharing our personal concerns over whether weknew any Pentagon or New York attack victims, we had to decide whetherto cancel our September 11 class that afternoon. The Law School left thisto each faculty member, and most opted to cancel. My co-teachingcolleague and I chose instead to hold class because we thought our studentsmight need a place to come discuss what happened. We also wanted to beavailable to our Law School community as resources. Every studentenrolled in the course showed up and we all talked through, at times quiteemotionally, what we thought about the day's events from a publicinternational law standpoint. As a teacher, that has been by far my mostdifficult, and most uplifting, experience.We modified our syllabus that day by moving up our laws of war andterrorism sections. The teachers and students alike wanted to use the courseto better understand what September 11 might mean. From that pointforward we added related topics and activities to all our classes, especially* The author is General Counsel and an adjunct faculty member in the Schools of Lawand Education at The University of Montana. The views herein reflect solely the author'sindividual personal opinions.CASE W. RES. J. INT'L L.those related to the legal status of combatants from the Taliban and alQaeda. Our international human rights law sessions acquired specialmeaning as we tried to apply human rights principles to September 11attackers. Although we teach parts of our course from news headlines,neither of us grasped how natural, and how important, it was to do so lastsemester until after September 11. We joined our students in realizing thatSeptember 11 was taking the U.S. and the rest of the world into unchartedinternational law waters, on a voyage seeming even now as if it is justbeginning.I personally view the September 11 attacks as acts of war against theUnited States, and the U.S. military response in Afghanistan well within theboundaries of a legally acceptable response by international standards.Certain U.S. non-military responses, however, are another matter.As a lawyer and legal educator who has long worked for bringing therule of law to emerging democratic countries on several continents, I cannotseparate September 11 events from my rule of law beliefs. My law reformwork has generally been a terrific professional experience, because (O.J.Simpson trials notwithstanding) the rest of the world often recognizes andappreciates U.S. rule of law leadership. Anyone who doubts this needmerely review constitutions and statutes in former dictatorships to see thehuge U.S. imprint. Civil rights and civil liberties previously unknown inmany places are today taken for granted. For this reason alone, September11 raises critical questions about whether the U.S. will continue as theworld's leading civil rights and civil liberties defender; or instead, as theworld's leading hypocrite.Those committed to civil rights and civil liberties should be appalled atU.S. law enforcement roundups and detentions of people of Middle Eastethnicity who are lawfully residing in the United States. Our President,Members of Congress and U.S. Attorney General all took oaths of office touphold the U.S. Constitution, not violate it. I for one find any suchdetentions, unless based on probable cause of criminal wrongdoing,outrageous and of dubious constitutional validity. Although the courts willultimately prove my legal theory right or wrong, I have no qualms aboutcriticizing our government for these activities because they potentiallyreverse our own civil rights movement by light years.Those concerned about civil rights and civil liberties should likewisebe appalled at U.S. treatment of persons detained in or en route toGuatanamo. Although the U.S. military has effectively won the war andour country has the power to do whatever it wishes to the captured, everyAmerican should view with alarm the U.S. Government uncertainty overthese detainees' legal rights. As I write this, it appears that President Bushhas just decided to apply some Geneva Convention principles to thedetainees although they will evidently not be considered prisoners of war.If they are not, who is our military fighting? Leaving these detainees inlegal limbo while making up the rules as we go along does not pass muster[Vol. 34:185PRESIDENT BUSH'S MILITARY ORDERin any society committed to rule of law values. Surely we must realize thatterrorists like those who attacked the U.S. on September 11 have beendoing this for years to their own victims, and the examples we have set todate give them the excuse to continue. Even hardened military veteransnow see why this subjects our own captured U.S. military personnel tosimilar treatment, and are concerned.Arbitrary justice is not the American way, and has not been so fordecades. Moreover, we cannot expect new democracies with fledglingindependent judiciaries to respect basic human rights derived from the U.S.Constitution and international treaties if the U.S. itself fails to do so. Oncethese countries retreat from rule of law, we can soon expect widespreadlegal abuses. These in turn will likely lead to contempt and disregard forthe law generally - with corresponding linkages between such sentimentsand even more terrorist acts a likely result.Equally troubling in U.S. non-military responses to September 11 forthose who believe in civil rights and civil liberties is the apparent U.S.Justice Department reliance on World War II era U.S. Supreme Courtjurisprudence to justify our government's actions. Secret trials andsummary executions of Nazi saboteurs may have been good law in 1940'swartime, but those events predated many important Supreme Court Bill ofRights decisions. Can anyone committed to rule of law principles crediblyargue for returning to pre-Miranda "anything goes" days of uncontrolledlaw enforcement discretion? Does anyone today consider the 1943Korematsu decision' valid precedent for depriving persons of Middle Eastethnicity of their rights and liberties, because it has never been directlyoverruled? I have heard U.S. officials justify setting aside fundamentallegal rights on the premise that "the Constitution is not a suicide pact." Isubmit that setting aside U.S. Constitution safeguards instead helps createsuch a pact, by promoting justice based solely on military might rather thanuniversal law principles. History has yet to see any country dependentsolely or primarily on military might survive over time.My final point addresses the deafening silence, at least initially, of theU.S. legal community following the fierce verbal assaults by U.S. officialson applying our criminal justice system and laws to September 11 attackers.I listened with dismay as many public officials openly ridiculed the roles oflaw, lawyers and judges in bringing these attackers to justice. Recognizinghow heated passions in an immediate September 11 aftermath could triggersuch reactions, I nonetheless questioned then and question now thesoundness of this position. Vigilante justice at the end of a rope orgunpoint has played all too prominent a role in U.S. history, and I wantnever to return there. Instead, September 11 must be a wakeup call for allwho believe in constitutional rights and rule of law. In times of crisis wehave three choices. We can intentionally disregard civil rights and civil1 Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944).2002]188 CASE W. RES. J. INT'L L. [Vol. 34:185liberties, citing the crisis as an excuse; muddle along without worryingabout these issues and conveniently forget legal abuses which occurredduring the crisis after it ends; or rise to the occasion and make sure theUnited States lives by law-based, rights-based principles in everything wedo regardless of the difficulties. To me the choice is obvious, as theSeptember 11 legacy will be left to my daughter's generation throughoutthe world.

September 11 Reflections from Ground Zero: Parent, International Law Teacher and Rule of Law Perspectives

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September 11 Reflections from Ground Zero: Parent, International Law Teacher and Rule of Law Perspectives

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