For law teachers, anniversaries of 9/11 inevitably coincide with the beginning of a new academic year.  We can be excused if, when commemorating that solemn day, we also find ourselves considering how American legal education has adapted to the post-9/11 world.

From the admittedly parochial perspective of someone who teaches at a law school located in New York – a city that stills bears the scars of that day -- 9/11 appears to have transformed the law school experience.  It has wrought changes in the curriculum, extra-curricular experiences, and classroom atmospherics.    

Law school curriculums are criticized – justly -- for their rigidity.  This is to be expected since the first year of U.S. law school in the twenty first century consists of subjects –and often even judicial decisions – that were first introduced in the later part of the nineteenth, when Christopher Columbus Langdell, initiated the case and Socratic methods at Harvard Law School.  But even that graveyard of innovation, the U.S. law school curriculum, now bears the imprint of 9/11.

The most obvious change, felt by teachers of national law no less than by those who teach international subjects, has been the revival of old-fashioned debates between civil libertarians and those primarily concerned with national security.  These had been salient in earlier periods of U.S. history – at the time of the Alien and Sedition Acts, over the course of the Civil War, during various “red scares” after the Russian revolution, and, of course, over the McCarthy era and the Cold War – but such tensions had, at least in the immediate wake of the Cold War, lost much of their contemporary resonance.  Tensions between rights and security, involving racial/ethnic profiling, new kinds of stops and searches, and undeclared warrant-less surveillance now play themselves out in our courses on constitutional law, criminal law, civil rights, critical race theory, and immigration.  Constitutional war-horses like Haig v. Ageehttp://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=453&invol=280 ) (in which the President was authorized to revoke a passport of a former CIA agent who threatened to reveal the identity of other CIA agents) and, of course, Youngstown Sheet & Tube Co. v. Sawyer (http://usinfo.state.gov/usa/infousa/facts/democrac/59.htm ), are getting a new lease on life, as is Abraham Lincoln’s suspension of habeas corpus, among other actions taken by prior U.S. Presidents in the name of national security.  Inevitably, given the focus on the extent to which our Commander-in-Chief can wage a “war” on terror unimpeded by the Congress, courts, U.S. states, or other nations, these debates have re-invigorated courses on foreign affairs and the constitution, federal courts, and, of course, international law.

At my school, like many others, new courses and seminars devoted to terrorism have emerged.  While these are most typically taught from the standpoint of U.S. criminal law and that field’s traditional tensions between “civil liberties” and the needs of law enforcement, terrorism courses necessarily canvass issues in and sources of international law.  These new courses are only one example of a more profound (if more subtle) change throughout law school curricula: even our offerings in U.S. law, including first-year courses, are gradually, and, since 9/11, far more rapidly, becoming more “international” -- as teachers become more accustomed to handling international and comparative law materials and topics, whether with respect to transnational aspects of civil procedure, criminal law, torts, contracts, or property (as, for example, regulatory takings issues emerge in such unlikely forums as NAFTA investor-state dispute settlement).  Although undefined “globalization” is normally given credit (or blame) for the internationalization of American legal education, the events of 9/11 should be given their due as well.

Consider the post-9/11 issues that now emerge in our classrooms: what constitutes a fair trial for “combatants” captured in the war on terror; the extent to which U.S. national law has incorporated counter-terrorism treaties, the Geneva Conventions, Security Council counter-terrorism mandates, or international criminal law; the extent to which certain methods of “expression” (including financial support given to certain “charitable” causes) can or should be criminalized; the legality of certain technological developments that can invade the privacy of our citizens or non-citizens; whether national criminal laws can be applied extraterritorially; the kind of rights non-citizens in our midst ought to be accorded whether by the police, our courts, or our immigration authorities; the extent to which persons can be held without charge or trial whether in national territory or abroad; whether national agents acting abroad or our government’s private contractors are reached by national law or treaty commitments; whether the freezing of assets violates property rights under both national and international law; what kinds of assurances are required, under national or international law, prior to rendering a person to another country; the meaning of “degrading or humiliating” treatment under national or international law; whether coerced testimony can be admitted in court for any purpose . . . the list continues.  All of these issues are getting attention not only from the three branches of the U.S. government but from international fora, such as the Committee on Legal Affairs and Human Rights of the Council of Europe, the Human Rights Committee, the UN Committee Against Torture, the European Court of Human Rights, the Inter-American Juridical Committee, and various counter-terrorism bodies of the Security Council.  Many of these issues have led to opinions by a number of national courts outside the United States.  As the UN High Commissioner for Human Rights Louise Arbour has suggested, terrorism and governments’ reactions to it have led courts, academics, and policymakers the world over to consider many common threats to the national and international rule of law -- and that reality alone may be producing a “worldwide jurisprudence capable of protecting fundamental human rights when it matters most.”  See Louise Arbour, In Our Name and On Our Behalf,   INT’L & COMP/ Q. 511, at 526 (2006), available at http://iclq.oxfordjournals.org/cgi/reprint/55/3/511 .

Whether or not Arbour’s “worldwide jurisprudence” is truly in the offing, 9/11 has meant that even U.S. law teachers unfamiliar with international law have found it harder to ignore – especially after Supreme Court decisions like Hamdan, which not only put the Geneva Conventions front and center but also led Justices as varied as Breyer, Kennedy, and Thomas to engage in detailed discussions of the meaning of Nuremberg precedents.  (See my prior ILpost column, “The Hamdan Teaching Moment”- http://www.asil.org/ilpost/president/pres060901.html ).  Five years after 9/11, more U.S. law school deans are also getting the message that their faculties and their students think that international law matters.  This may help to explain some law schools’ (e.g., Michigan’s, Hofstra's) international law requirements, or my own school’s new transnational law elective in the first year.

As of this fifth anniversary of 9/11, there are signs of other 9/11-inspired courses less focused on the constitutional and criminal law aspects of the U.S. Patriot Act.  Over the course of the past five years, our school has seen courses on the “gender of 9/11,” and the “jurisprudence of war,” as well as an explosion of courses and seminars relating to international humanitarian law, the rights of “victims” under international and comparative law, international criminal law and tribunals, and transitional justice.

As the last suggests, our traditional international law courses, from survey courses on public international law and human rights to the more specialized, have been changed – and re-invigorated -- in the wake of 9/11.  My public international law course now devotes considerable time to re-examining the precedents set by the United Nation’s handling of the Lockerbie bombing, the two Iraq conflicts, and the law of armed occupation.  It now addresses very specialized topics, such as the status of “enemy combatants” under the Geneva Conventions, and, like the human rights survey course, spends more time on the Torture Convention, the rights of criminal defendants (as well as those who are not charged at all), the extraterritorial application of human rights treaties, and the interplay between human rights treaty regimes, customary law, and international humanitarian law.  While some of these topics would have surfaced due to the press of other post-Cold War events, none would have emerged the same way but for 9/11.

My course on international organizations now spends considerable time on the “legislative” actions of the UN Security Council to counter WMDs or terrorism and less formal coordination activities among other organizations and government networks to deal with terrorist financing, aviation security, or weapons transfers on the high seas.  My foreign investment course now spends time re-examining the scope of U.S. laws that restrict or affect foreign investment due to concerns of national security, especially in the wake of the fiasco over whether “foreigners” should control security at U.S. ports.  Of course, the work undertaken by our students in our human rights clinic, who frequently work with New York-based NGOs, has also been affected by 9/11 -- as much of the focus of those NGOs have turned inward, to confront human rights problems at home resulting from our “war” on terror.

The extracurricular speakers engaged and conferences hosted by our students or law school centers have also felt the profound effects of 9/11.  Our Center on Global Problems, for example, has featured a year-long series on “Columbia Goes to War” and is canvassing post-9/11 issues this fall.  The last will include debates on whether to close the Guantánamo detention camp, the implications of Hamdan, the prospects for a new counterterrorism organization, and the preemptive use of force.

But perhaps the deepest effects of 9/11 have emerged with respect to classroom   atmospherics.  Classroom debates about the impact of globalization, about the benefits or detriments of “exporting U.S. values” such as the rule of law, democracy or human rights abroad, about the uses and misuses of power, about the threats to sovereignty posed by non-state actors, about the “universality” of international norms – have, in the post-9/11 world, new immediacy and bite.  The stakes have gone up and students know it.

Prior to 9/11 arguments about whether “globalization” (or the WTO or the IMF) piqued the interest of only those students with abstract commitments to certain causes, from protecting the environment to fighting world poverty.  Even when sincerely held, these engagements were not often deeply connected to students’ real lives since they did not emerge from real threats to those lives.  Students were also at some remove from the kind of complaints heard outside the United States, including in the Islamic world.

Post-9/11 debates about globalization and its discontents – when some of those discontented threaten violence against the perceived servants of globalization (including the United Nations itself) are more engaged.  Arguments about whether there exist legitimate, culturally relative complaints about the West’s (or the IMF’s) notions of the rule of law, democracy, or human rights seem more vital now that such complaints  are contested violently and threaten to affect us.  The abundant law review articles on these subjects have a relevance that they lacked before; after all, they are being cited by courts, the media, and in congressional hearings addressing such weighty matters as whether or not to immunize former U.S. officials from criminal charges for war crimes.

Debates about the legality of the use of force have obvious urgency – now that the U.S. President indicates that our nation is engaged in a war without evident end or territorial limits.  Our own commitment to the universality of human rights is tested when our own government appears to be acting on the premise that some human beings are less human than others.  The stakes for those who seek to give effect to human rights, reform international organizations, or propagate the rule of law have gone up, especially for those who believe that alleviating the plight of the global South may lessen the desperation and frustration that make some willing to give terrorists their passive support.
Sovereignty (and, by extension, state-centric international law), despite evident challenges, has also staged a dramatic comeback, not only because our students, including the civil libertarians among them, are more willing to acknowledge the need for governments to protect them, but because 9/11 and events since have made it clear that non-state actors, particularly those who might come armed with the poor man’s equivalent of a missile or weapon of mass destruction, can pose as grave a threat as any state.  At the same time, students do not need to be taught about the dark side of non-state actors -- of international uncivil society -- or about the inadequacies and silences of traditional international rules when confronting them.  Our students now know that in form if not function, Al Qaeda most resembles the very same purveyors of globalization that it seeks to destroy and that international law often seems as helpless in controlling non-state terrorists as in dealing with the adverse impacts of economic privatization and deregulation.

None of this should come as a surprise.  American law schools are not immune from contemporary U.S. culture.  At a time when Emmys are awarded to Fox network’s fear-mongering “24,” Pulitzer prize-winning authors like John Updike publish controversially empathetic novels like Terrorist (2006), and Broadway audiences nervously laugh at the over-the-top terrorist violence in Martin McDonagh’s The Lieutenant of Inishmore, our law students expect to talk about terrorism in their classrooms.

Five years into a “war” on terror, interest in matters international in many U.S. law schools seems at a high point.  Yet celebrating this resurgence feels unseemly, and not only because of the memory of those who lost their lives at Ground Zero.  Many of us are on edge because the interest emerges, apparently, for all the wrong reasons – because of fear, the waging of war, or the temptation to change rules that now appear inconsistent with our security.  We are concerned lest terrorism permanently displace consideration of many other important issues, to our nation and to others. We are uneasy because the interest coincides with evident challenges to the post-World War II legal order, including from our government, which on before launching war against Iraq in 2003 suggested that if the United Nations stood in its way it was irrelevant. (See, e.g., Remarks by the President after visit with Employees at Nebraska Avenue Homeland Security Complex, Sept. 19, 2002, at http://www.whitehouse.gov/news/releases/2002/09/20020919-7.html .)

Yet, like ASIL member, Peter Spiro, I too am beginning to believe that while 9/11 might at first have seemed to deter the advancement of international law and institutions, five years later it may be emerging as its paradoxical accelerant.  (See Peter J. Spiro, Realizing Constitutional and International Norms in the Wake of September 11, 198, at 210 in Mark Tushnet, ed., The Constitution in Wartime (2005)(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=441380 ).)  This would not be altogether strange from a historical perspective.  Massive and largely positive changes in international law and its institutionalization certainly occurred in the wake of the destruction wrought by the two world wars of the last century.  International law has been re-invigorated in previous eras by vigorous challenges to its fundamental assumptions and state-centricity.

And if the focus of some in our government continues to be on narrow military objectives, I draw comfort from more enlightened student discussions—which now, with the benefit of some distance from 9/11 itself, engage more with issues that have greater resonance to those who have not been as directly affected by the threat of terrorism, but that may nonetheless put that calamitous event in context.  These discussions give me hope that our current preoccupation with the events of 9/11 will help us to avoid comparable events here and elsewhere in the future.