That 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.
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.