Reflections on the 25th Anniversary of 9/11

Today is the 25th anniversary of the 9/11 attack. I have written about my memories of that event and reflections on its aftermath before. I will not recapitulate all of that in this post. But here is a link to my piece on that subject, written on the twentieth anniversary of the attack. A brief excerpt:

On the day of 9/11, I was clerking for a federal judge in Houston, Texas. I first heard about the attacks listening to the radio on my way to work that morning. The dial was tuned to a “top 40” station that almost never had any news. So when they interrupted the usual programming to say that a plane had crashed into the World Trade Center, I assumed it must be some sort of hoax. I had read about the 1938 “War of the Worlds” radio program scare (some listeners were convinced there was an actual alien invasion). I thought this might be the same sort of thing.

When I got to the office and turned on my computer, I could not load the CNN website; too many other people were trying to access it. That’s when I knew the attack was real.

Business in our judge’s chambers went on more or less normally for most of the day. But I did call some people I knew in the New York area to see about their safety. The longest of these conversations was with the brother of a Muslim friend who worked near the Twin Towers. By the time we spoke (it was late morning), we already knew the attack was likely the work of radical Islamist terrorists. We discussed the implications for US foreign policy, and also the possibility of an upsurge of anti-Muslim bigotry at home. We both thought there would be a strong military response, and also both were in favor of the idea; I still think it was necessary, though many in retrospect disagree.

With respect to the other issue, I said historical precedent…. suggested such a backlash could well happen. But I also thought there would be more resistance to it than in earlier eras….

To an extent, I turned out to be right; but only to an extent…..

I would also like to highlight two major pieces of unfinished business from the attacks and the ensuing war in Afghanistan.

First, as prominent conservative legal scholar and former federal judge Michael McConnell points out in a recent article, 9/11 accelerated and exacerbated a trend towards normalizing the constant use of dangerous emergency powers by the executive. While the 9/11 attack was a genuine emergency, the reaction to it helped incentivize the use of such powers even in response to normal public policy problems, and even issues (such as trade deficits) that aren’t genuine problems at all.

McConnell is right to urge Congress to curb the use of emergency powers. The judiciary can also help by engaging in stronger judicial review of their invocation by the executive. I outline how and why this should be done in two articles published last year:

“Not Everything is an Emergency,” The Dispatch, July 31, 2025 (non-paywalled version here).

“Trump’s ‘Emergencies’ Are Pretexts for Undermining the Constitution,” Lawfare, May 15, 2025.

And, for those keeping score, yes, I also objected to the abuse of emergency powers under Biden. See, e.g., here and here.

The second major outstanding issue is the treatment of Afghans who fled the Taliban, including many who aided US forces during the war. Along with others, I have long argued for giving these people rights to permanent residency in the US, thereby protecting them against deportation back to their oppressors (see here and here).

Unfortunately, under Trump 2.0, we have done the exact opposite. Trump has sought to deport Afghan refugees from the Taliban – including those who aided us in the War in Terror – back to their oppressors, and suspended processing of immigration applications and “benefits” for all Afghans. The suspension remains in place for almost all Afghan visa applicants, including those eligible for special visas because they helped US forces in the war. A June 2026 court decision ruled against the suspension and “re-review” of visas and  benefit processing for those in the US.

These efforts to deport Afghans back to their oppressors are simultaneously unjust and couterproductive for reasons I summarized here.

The 25th anniversary of 9/11 is an appropriate time to honor and remember the victims of that horrific attack. It is also as good a time as any for us to work to protect Afghans who aided us in the War and fled the Taliban, and to curb the dangerous emergency powers that have proliferated over the last twenty-five years.