The Page 99 Test: Joseph Margulies's "What Changed When Everything Changed"

Joseph Margulies is clinical professor of law and assistant director, Roderick MacArthur Justice Center, Northwestern University School of Law. He has been deeply involved in post-9/11 litigation and scholarship, and his book Guantanamo and the Abuse of Presidential Power received the American Bar Association’s prestigious Silver Gavel Award as well as several other awards.

Margulies applied the “Page 99 Test” to his new book, What Changed When Everything Changed: 9/11 and the Making of National Identity, and reported the following:

For those of us who came to 9/11 from the criminal justice world, the revolt against certain post-9/11 policies like indefinite detention without trial and warrantless surveillance was something of a mystery. The fact is that policies like these have been a fixture of the American criminal justice system for many years. The curious thing about the reaction to 9/11 was not that these policies were adopted, but that they caused such an uproar, at least for a time. Why would policies that were met with yawning indifference in the criminal justice context be the occasion for so much angst when applied to the supposedly more serious threat of trans-national terror?

This was one of the many riddles I set out to understand in my book, What Changed When Everything Changed: 9/11 and the Making of National Identity. Another was the curious course of our post-9/11 hostility to Islam. Contrary to what is widely imagined, the antipathy toward Islam within the right did not begin with the attacks of September 11. On the contrary, in the first weeks and months after the attacks, conservatives and Republicans were actually more likely to express favorable views of Muslims and Islam than were independents, liberals, and Democrats (though the differences were fairly modest).

And favorable sentiment on the right continued a trend that began even before the 2000 presidential elections, when the Muslim and Arab communities in the United States voted overwhelmingly for George Bush in his contest with Al Gore. Longtime Republican activist Grover Norquist wrote an article that actually credited Bush's victory to the Muslim vote and described Muslims as "natural conservatives". In truth, Republican animosity toward Islam did not reach its current highs until years later, long after the threat from trans-national jihad had all but disappeared. Why?

To answer these and related questions, I realized fairly early on in my research that it was impossible to talk about after without a very clear understanding of before. In other words, it made no sense to ask how 9/11 had changed national identity without first painting a very clear picture of national identity as it had taken shape prior to the attacks. And that brings us to page 99.

One of the most important aspects of modern life in the United States is the impulse toward punitiveness. Borrowing an expression from my Northwestern University colleague, Mike Sherry, I call it the punitive turn. Many people have described the evidence of this turn: interminable prison sentences, exploding prison populations, mammoth law enforcement budgets, expansion of the death penalty, etc.

In my research, I concluded that the punitive turn had been thoroughly integrated into national identity by the time of the 9/11 attacks, and that it involved certain well-defined rituals. With great regularity, demons are created in the public square, each of which threatens greater apocalyptic peril than the last. And each new demon triggers the all important call to action, in which the elements of civil society join in a shared plea that the executive branch save the country from imminent calamity. New laws are passed, new powers bestowed. The community is calmed, at least somewhat, by the knowledge that law enforcement at the local, state, and national levels has been given greater power to track, seize, prosecute, convict, sentence, and execute the demon in our midst.

Page 99 is smack in the middle of my chapter on the punitive turn. At that point in the book, I am describing a classic example of communal demonization: the creation of the juvenile "super-predator" in the late 80s and 90s. Civil society ritualistically created the crisis of marauding kids and demanded a solution, which culminated in a wholesale rewriting of juvenile codes across the country and tens of thousands of juveniles being prosecuted in adult court. Of course, we now know the juvenile "super-predator" was a myth; juvenile crime rates have been falling for decades. But that knowledge came only later, long after the country had turned its anxious gaze at yet a new demon and the process began anew.

It is vitally important to understand that the punitive turn is a communal process. The community joins in casting a new demon beyond the pale. And it is this communal sentiment that President Bush overlooked in his response to 9/11. By insisting on unilateral power, by adopting such a cavalier attitude toward judicial accountability and congressional oversight, and by developing such an uncommon attachment to secrecy, the Bush Administration outran the limits of the punitive turn by placing itself outside the community it was ostensibly trying to protect. This was the great mistake.

Though it takes us beyond page 99, the solution to the riddle described at the start of this note is that people did not really object to the policies of the Bush Administration (torture being an exception, and for which there is a different riddle with a different solution). Instead, they objected to the way they were implemented, which was contrary to national identity as it had taken shape before the attacks. And once Obama abandoned claims to unfettered power and adopted a rhetoric that seemed to welcome more scrutiny by the other elements of civil society, the narrative that took shape during the Bush Administration all but disappeared.

And that's page 99 of What Changed When Everything Changed: 9/11 and the Making of National Identity.