Chertoff Examines Gaps in 9/11 Laws

Former Secretary of Homeland Security Michael Chertoff ’75 called for Congress to build a legal framework for dealing with the complexity of modern security threats in a lecture on Tuesday.

The talk, titled “The Law of 9/11: Reflections by former Secretary of Homeland Security Michael Chertoff,” came two days after the tenth anniversary of 9/11. It was sponsored by the Harvard Law School chapter of The Federalist Society, a group of conservative, moderate, and libertarian students.

From 2005 to 2009 Chertoff served as head of the Department of Homeland Security at a post created by former President George W. Bush in the wake of 9/11.

At the time of the attacks, Chertoff, a graduate of Harvard Law School, was chief of the Justice Department’s criminal division.

“There were points in that morning where we seriously thought there was a possibility of eight, nine, ten, a dozen jets crashing into American buildings and killing not only the passengers on the plane, but the people in the buildings themselves,” he said.

Uncertainty and a lack of information created “a real sense of urgency in proceeding forward,” Chertoff said.

“You may see things like this in movies, but let me tell you it’s a lot different when you see them in video conferencing. You hear people talking about the fact that American fighters are going to be ordered to shoot down American passenger planes on American territory,” he said.

Chertoff then segued into a discussion of the flaws in national defense policy exposed by the 9/11 attacks.

Before 9/11, the government had organized itself according to a “binary view of security,” Chertoff said. Threats were either labelled as war or crime, two categories that have separate agencies, doctrines, and laws.

Globalization, technological advances, and the rise of “ungoverned space” since the Cold War have contributed to the deterioration of the applicability of a binary view of security, according to Chertoff.

The “eroded limits of a nation-state” and the ability to travel, communicate, and send money around the world gives networks “more global reach, often equal to or exceeding that of a nation.” Such groups now have access to biotechnology and radioactive material and are thus capable of widespread destruction, according to Chertoff.

He also cautioned that the rise of “ungoverned space” in countries like Yemen, Somalia, Pakistan, and Afghanistan allows groups to build laboratories, recruiting centers, and training camps without fear of law enforcement.

“Depending on the nature of the technology and the nature of the global reach of the particular threat, the consequences of [groups’] acts may be equal to or greater than what we experience in conventional wars,” Chertoff said.

He called on Congress to address the legal gap between the criminal justice system and wartime policy, arguing that a lack of clear legislation has left the government with antiquated, Cold War-era guidelines for dealing with the new threat of terrorism. Congressional silence has also forced the judicial branch to apply traditional laws to a modern security landscape.

According to Chertoff, the government needs “fine-grained analysis” of the current security threats to produce a “legal architecture” capable of dealing with current security issues.

—Staff writer Julia L. Ryan can be reached at jryan@college.harvard.edu.