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September 11, 2006

ORIN KERR:

During the week following the September 11 attacks, most major newspapers ran stories on the very plausible prospect that 9/11 could lead to a radical overhaul of civil liberties in the United States. The articles included sober discussions by law professors of whether we would have internment camps for Muslims, citing the camps for Japanese during World War II, or whether there would be a suspension of habeas corpus, citing the precedent of the Civil War. Fortunately for all of us, this didn't happen. While there were some aggressive law enforcement steps taken, particularly with regard to immigration offenses, for the most part the changes in existing statutory and constitutional law have been minor. . . .

Where does that leave us? To me it suggests that the impact of 9/11 on the law is still largely an open question, but that as a general matter the impact has been notably less significant than most of us would have predicted on the afternoon of 9/11. Maybe this will change in the future: Senator Specter's NSA bill is still pending, and a few Supreme Court vacancies might alter the picture. But on the five-year anniversary of 9/11, I'm struck more by how little the law has changed than by how much.

I think that's right. It's certainly true that the civil-liberties violations I feared in the fall of 2001 have not come to pass. It's also true that, critical as I have been, and remain, of Homeland Security efforts we have gone five years without a major attack, which is something I certainly didn't expect. There seems to be a fair amount of gloom around the blogosphere today,which is appropriate on an anniversary like this one, I suppose, but those seem like two very bright spots.

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