The Bin Laden Exception

ABSTRACT-Osama bin Laden's demise provides an opportune moment to reevaluate the extraordinary measures taken by the U.S. government in the "war on terror," with any reassessment incorporating the threat posed by al Qaeda and other terrorist organizations. Some modest analysis suggests that terrorism remains a miniscule risk for the average American, and it hardly poses an existential threat to the United States. Nonetheless, terrorismrelated fears have distorted the people's risk perception and facilitated dubious public policies, exemplified here by a series of programs implemented by the Transportation Security Administration (TSA). Among other things, this agency has adopted costly technology and intrusive pat downs to screen airline passengers with little evidence that the terrorist risk has been meaningfully and efficiently reduced as a result. The TSA regime also clashes with core constitutional values and decent understandings of the Fourth Amendment. To date, however, the courts have been deferential to the government. Although the decisions rehearse established exceptions, they are indicative of an entirely new constitutional exception grounded in irrational fears of terrorism. AUTHOR-Sydney and Frances Lewis Professor of Law, Washington and Lee University School of Law. INTRODUCTION On the evening of May 1, 2011, the American people learned that the world's most wanted criminal-Osama bin Laden-had been killed in Pakistan during a covert operation by an elite U.S. military team.1 The news triggered spontaneous gatherings and revelry across the country. For the millennium's new generation, bin Laden had been the embodiment of evil, an omnipresent bogeyman, and, for some, "the first person I was ever taught to hate."2 Many young Americans will not be able to recall life without a deep-seated fear of the terrorist leader and the organization he founded,3 all against a national backdrop of the so-called "war on terror." Bin Laden's death thus signaled the "end of an era" and progress "toward a safer, less violent world."4 After emotions settled, however, thoughts turned to the ultimate impact of the operation that closed "the Bin Laden decade."5 The al Qaeda leader "really did a number on all of us," wrote New York Times columnist Thomas Friedman.6 "Who will tell the people how deep the hole is that Bin Laden helped each of us dig over the last decade-and who will tell the people how hard and how necessary it will be to climb out?"7 The question appears ripe in light of statements made by top officials. Defense Secretary Leon Panetta claimed that the United States was "within reach of strategically defeating Al Qaeda."8 Shortly thereafter, President Barack Obama announced that "Al Qaeda is under more pressure than at any time since 9/11" and that "more than half of al Qaeda's leadership" had been taken out.9 The time has come for a postmortem examination, so to speak, of the damage wrought during the decade of bin Laden. Some, like Friedman, have looked to the international consequences, including the perpetually troubled relationship among Israel, Muslim-majority nations, and the United States, which was undoubtedly worsened by 9/11 and its aftershock. This Essay contemplates an area of domestic concern that represents perhaps the most palpable effect of terrorism on the American citizenry: travel by plane. In an insightful piece, Professor Alexander Reinert analyzes Fourth Amendment doctrine as applied to airport security.10 Here, I hope to complement this work by offering some context on terrorism, with the goal of prompting discussion as to whether bin Laden's legacy will include yet another instance of constitutional exceptionalism. By definition, exceptionalism is a comparative concept involving a contrast among sufficiently analogous sets of values and practices, where an apparent anomaly or special case is subject to descriptive and normative assessments.11 For example, the idea of drug exceptionalism is premised upon the unique history and policy of prohibition and, in particular, the extraordinary treatment of drug crime by legislatures, law enforcement, and the courts. …