Justice In a Time of Terror: Bending The Branches

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This is the second of a three-part series looking at the legal War on Terror since September 11, 2001. Part I focused upon some of the heroes and villains of the story so far. Part II looks at the ways in which each of the three branches of government reacted to the legal challenges posed by the attacks. Part III will offer a personal overview.


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Part II: Bending the Branches

It is axiomatic that the terror attacks of 9/11 fundamentally altered the balance of power between the three branches of government. For nearly three years following the assault, while the death and destruction was freshest in the minds of those who lived through it, and while al-Qaeda posed its greatest threat to national security, Congress eagerly ceded vast power and authority to the executive branch. The judiciary almost without exception bowed to the wishes of administration officials and their functionaries. And President George W. Bush successfully convinced a wounded and angry American populace that a different kind of war required new and different kinds of war powers for the executive branch. This period lasted 1,031 days, from September 11, 2001, until June 28, 2004. Let's call it the Age of Fear. 

9-11 Ten Years LaterThat day in June seven years ago was an extraordinary pivot point in our nation's history. Not only did Iraq's interim government take control that day of the beleaguered, fractious nation, but the United States Supreme Court handed down Hamdi v. Rumsfeld, the first of four terror law rulings against the Bush administration. From June 28, 2004, until January 20, 2009, the day Barack Obama was sworn into office, the balance of power over the legal War on Terror gradually began to shift back toward its traditional plumb line. Congress began to redirect or shun some executive branch priorities. The lower federal courts began to reject some White House arguments. And the American people began to again express their discomfort with the notion of an imperial and imperious presidency. This period lasted 1,667 days. Let's call it the Age of Doubt.

The inauguration of President Obama marked the latest turning point in the legal War on Terror. Congress has become openly hostile to executive branch policies and priorities, precluding the current administration from achieving objectives which were routinely endorsed during each of the previous two Ages. As the reactive branch of government, the federal judiciary has been disinclined to get too closely involved. Meanwhile, the White House itself checked some of its own power and authority in the legal War on Terror. It has sought for political and diplomatic purposes to withdraw from some of the excessive ground staked out by the Bush Administration. This period so far has lasted 955 days, from January 20, 2009, to September 2, 2011. Let's call this the Age of Reckoning.

"The executive branch did what many governments throughout history have done when given sudden swaths of unchecked power; it went too far."

It has been 3,643 days since the Twin Towers fell. Although many legal questions remain unresolved, the constitutional crisis created by the events of 9/11 is largely over. The crest of presidential power, for now, has ebbed. But there has not been, and there cannot ever be, a simple resetting of the balance between the branches to what existed before September 11, 2001. The Obama administration has not ceded back most of the authority the Bush Administration was given or took for itself immediately following the attacks -- take, for example, its relentless use of Predator drones to kill suspected Al Qaeda operatives -- and no future president ever likely will. The federal courts have not unwound the many decisions which endorsed and legitimized much of that authority. And no one seems to be clamoring for a return to the "old days" along the terror law front.

Here are some of the highlights, or lowlights, of how we got from there to here. 

Article I: The Congress

In the beginning, there was the Authorization for Use of Military Force. Instead of a formal Declaration of War, Congress on September 18, 2001 -- exactly one week after the Twin Towers fell -- gave President George W. Bush and his executive branch sweeping power to:

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This provision is the Tree of Life to the legal War on Terror since 9/11. From it has sprung the legal (or political) justification for virtually every controversial American policy or act that has followed, from the memos that authorized the torture of terror law prisoners to the directives that justified extraordinary rendition and secret prisons to the executive orders that spawned warrantless domestic surveillance. There has been a great deal of scholarship from the right and from the left about whether the September 18, 2001, AUMF gave the executive branch more power or less power to wage the War on Terror than a formal Congressional declaration of war might have given. But there is no dispute that the broad language of the AUMF gave the executive branch essentially a carte blanche ("all necessary and appropriate force") to implement the tactics it chose to implement.

With the adoption of this measure, Congress effectively acceded to the Bush White House its oversight role over the War on Terror. But as a practical matter the AUMF alone still wasn't enough for proponents of the unitary executive theory. That autumn, as the United States invaded Afghanistan to root out the Taliban and Al Qaeda there, the Bush administration asked the legislative branch to pass affirmative and specific authorization for broad new powers of surveillance, detention, and punishment. And the lawmakers complied. On October 26, 2001, just five weeks after the AUMF went into effect, Congress passed the USA Patriot Act, a huge bit of bipartisan federal legislation which dramatically altered for all Americans the balance between liberty and security, privacy, and government intrusion.

The Patriot Act has generated far more political controversy than it has legal trouble for its drafters and supporters. Despite legitimate concerns from civil libertarians, and rulings from lower federal court judges around the nation, the Supreme Court has consistently upheld its provisions (or at least refused to overrule them). And just a few months ago, President Obama signed into law an extension of some of the Act's key provisions, a sign that the voluminous legislation, passed in the dark of night by many lawmakers who had never bothered to read it, remains politically viable today. A plurality of the American people seem to like, or at least are willing to tolerate, even the Act's most controversial provisions. 

Both the AUMF and the Patriot Act became the law of the land within 45 days of the terror attacks on America -- at the very start of the Age of Fear. And yet they remain today the most significant Congressional contributions to the legal War on Terror. Save for its authorization for the war in Iraq, never again in the ten years since 9/11 would Congress empower the machinations of the executive branch in such sweeping terms. Having gone so far in undermining the principle of federal checks and balances, having given President Bush, Vice President Dick Cheney, David Addington, and John Yoo virtually everything they had asked for in those early dark days, the legislative branch essentially needed to go no further.   

Indeed, during the Age of Doubt, Congress seemed content to nibble around the edges of terror law. It began to try to take back some of the control it had so eagerly given to the executive branch and to re-assert itself against an emboldened judiciary. For example, after the Supreme Court's ruling in Hamdi v. Rumsfeld, a case about whether terror suspects had a right of access to civilian courts, the lawmakers passed the Detainee Treatment Act of 2005, a law which explicitly stripped the men of their power to seek redress in federal court. Similiarly, in 2006, after another Supreme Court ruling that went against the Bush White House, Congress passed the Military Commissions Act, which sought to re-start the failed military tribunal system. In 2008, the Supreme Court struck down both of these laws.

Then came the Age of Reckoning. Congress passed a new military commissions act, again seeking to strike the proper constitutional balance between giving terror law detainees due process rights and protecting national security interests. And the lawmakers blocked with great relish and fanfare the Obama Administration's efforts to prosecute 9/11 planner Khalid Sheik Mohammed in federal civilian court in New York. Such meddling in the discretion of the Justice Department's charging decisions would have been unthinkable during the Age of Fear. And the government's most successful terror law prosecutions since 9/11 (Zacarias Moussaoui in Virginia, Jose Padilla in Florida) occurred during the Age of Doubt. Yet in our current Age the executive branch was turned back by its sister branch even as President Obama was planning the successful attack that resulted in the death of Osama bin Laden.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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