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What If 9/11 Never Happened?


Dahlia Lithwick
Supreme Court correspondent, Slate

9/11 Five Years Later

Had 9/11 never occurred, we’d still be debating the boundaries of executive power, but we’d have to do it without one of the most important sentences penned in our legal lifetimes. Justice Sandra Day O’Connor’s “a state of war isn’t a blank check for the president,” may not have been written, but we’d likely be fighting over vast expansions of police power. Many of the Patriot Act’s most sweeping provisions had been on John Ashcroft’s Christmas wish list for domestic crime fighting long before 9/11. And unsurprisingly, Patriot Act provisions have been used to prosecute a Las Vegas vice lord and interrogate a college death-penalty opponent in cases having nothing to do with terrorism. September 11 was a useful excuse. Systematic erosions of the warrant requirement, liberal use of presidential signing statements, sweeping notions of what constitutes a “state secret,” and efforts to sideline the courts would all merely have been directed at criminals. This was a constitutional shift waiting to happen. Without a war on terror, the administration’s legal focus would have stayed on the culture wars. Efforts to reverse Roe v. Wade and roll back affirmative action and the separation of church and state would have been serious. Bush’s choices for the Supreme Court could have been different. A President Bush who believes that terrorism must be fought by the president without oversight or check had to select Supreme Court nominees guaranteed to sanction that. If that need didn’t exist, Chief Justice Roy Moore could have by now torn down the Supreme Court cafeteria to house the 7,000-pound rotating crystal monument he’d built to the Ten Commandments.


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