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Lessons for the Next Twenty Years: What We’ve Learned in the Two Decades Since 9/11

A Note from Editor-in-Chief William C. Banks

By any measure the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001 brought an immediate laser focus to the phenomenon of international terrorism.

Though hardly new to the United States and the world in 2001, the 9/11 attacks instantaneously elevated countering international terrorism to the dominant national security imperative at home and abroad.

Questions were legion: Should we have known the attacks were coming? What could we have done to prevent them? What lessons learned will help forestall the next attack? What are the best options for countering international terrorism?

Twenty years later many lessons have been learned, even as we continue to struggle with the ever changing dynamics of global terrorism. JNSLP is honored to publish this Special Edition, “Lessons Learned for the Next Twenty Years: What We’ve Learned in the Two Decades Since 9/11.”

Special recognition and thanks are due to Guest Editor Matt Kronisch and Director of the Syracuse University Institute for Security Policy and Law Jamie Baker. Matt and Jamie approached us with the idea for a Special Edition, and then Matt worked miracles in securing commitments from an extraordinary assemblage of distinguished veterans of the larger national security and counterterrorism field to prepare short essays commemorating through various lenses what the two decades since 9/11 have shown.

Spend a moment glancing at the Table of Contents for the Special Edition and you will recognize many of the names and you will correctly anticipate that a deep dive into this marvelous collection of essays is a must.


Foreword
Thomas H. Kean & Lee H. Hamilton

Introduction
Matthew L. Kronisch

PART I: THE CENTRALITY OF INSTITUTIONS, POLICY, AND PROCESS

Staying Left of Boom: The Central and Essential Role of the NSC
James E. Baker

Lessons from the Past Twenty Years—A Former National Security Policymaker and Intelligence Community Leader’s Perspective
Michael G. Vickers

Reflections on Twenty Years of Counterterrorism Strategy and Policy
Nicholas J. Rasmussen

From 9/11 to 1/6: Lessons for Congress from Twenty Years of War, Legislation, and Spiraling Partisanship
Dakota S. Rudesill

Jack of All Trades, Master of None: Managing the Intelligence Community of the Future
Corin R. Stone

National Security Decision-Making in the Age of Technology: Delivering Outcomes On Time and On Target
Gary P. Corn

PART II: THE TOOLS OF INFLUENCE AND ACCESS

USSOCOM and SOF: War Around the Edges
Eric T. Olson

Cables from the Field: A Diplomat’s Lessons from the Two Decades Since 9/11
Anne W. Patterson

Lessons Learned After Twenty Years of Hostilities: The Use of Force and the Law of Armed Conflict
Kenneth Watkin

Wielding the Tools of Economic Statecraft
Brent J. McIntosh

PART III: SURVEILLANCE, OVERSIGHT, SKEPTICISM, AND RACE

Lessons for the Next Twenty Years: What the Two Decades Since 9/11 Have Taught Us About the Future of Foreign Intelligence Surveillance Law
David S. Kris

Reflections on the IG’s Role, Stellarwind, and the Information Sharing Fiasco
Joel Brenner

Data Collection: Lessons of Cost-Benefit Analysis, Skepticism, and Legal Transparency
James X. Dempsey

Reflections on Security, Race, and Rights Twenty-Years After 9/11
Sahar F. Aziz

PART IV: DOMESTIC TERROR AND THE FIGHT TO SUSTAIN DEMOCRACY

Counterterrorism 2.0
Deborah Pearlstein

Lessons for Countering the Domestic Terrorism Threat 20 Years After 9/11
Mary B. McCord

Learning From Our Mistakes: How Not to Confront White Supremacist Violence
Mike German

Send Airplanes, Phones, and Money: Cautionary Lessons For the Post-1/6 World from the Post-9/11 World
Paul Rosenzweig

A Twenty-Year Lesson: The Role of Civil Rights in Securing Our Nation
Kareem W. Shora

FARA in Focus: What Can Russia’s Foreign Agent Law Tell Us About America’s?

In 2012, Russia passed its first-ever Foreign Agent Law, which western analysts described as an attempt to stymie civil society. Russia argued that it modeled its Law after the American Foreign Agents Registration Act (FARA).

Samuel Rebo describes how on their face the laws seem similar, while their implementation has differed. While Russia has actively used its Law, the US launched only a single criminal FARA prosecution from 1990 to 2010. However, since Russian interference in the 2016 US presidential election, DOJ prosecutors have brought more FARA cases (2016-2019) than they had in the past 50 years combined.

Comparing FARA to its Russian counterpart, Rebo notes that the Russian law contains significantly more substantive limitations on the functioning of “foreign agents” than does FARA. However, both laws are broad and can sweep in legitimate civil society groups. Thus, DOJ discretion is the main barrier stopping America from replicating Russia. Rebo argues that, given the First Amendment rights at stake, this reliance on the DOJ is insufficient, and Congress should amend FARA to narrow its breath and clarify its scope.

Unequal Justice: Why Congress Should Expand the Supreme Court’s Jurisdiction to Review the Courts-Martial System

In 2018, the Supreme Court held that it has appellate jurisdiction to review decisions of the Court of Appeals for the Armed Forces (CAAF) under 28 U.S.C. §1259. However, CAAF is the final court atop the “courts-martial system” and §1259 limits Supreme Court review of courts-martial cases to those where CAAF has already reviewed or granted some relief. In fiscal year 2020, CAAF granted review in just 10.9% of cases where it received a petition.

Kyle Yoerg argues that service members should have a right to appeal to the Supreme Court even if CAAF denies a petition for review. The following three reasons underlie his argument. First, service members currently have inferior access to the Supreme Court than do civilians in other jurisdictions in the United State. This includes defendants in state court and even suspected enemy combatants detained at Guantanamo. Second, CAAF traditionally reviews error correction cases where the Supreme Court is unlikely to grant certiorari. Finally, enhanced Supreme Court review will not adversely affect military readiness.

Yoerg ultimately concludes that the Equal Justice for Our Military Act, an amendment to 28 U.S.C. § 1259 originally proposed in 2009, is the appropriate vehicle to expand service member access.