Justice In a Time of Terror: Bending The Branches

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.

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.

Article II: The White House

The terrorists who struck us on September 11, 2001, were bold, quick, and clever and millions of words have been written over the past 3,643 days about how they outfoxed America's lumbering, outdated intelligence apparatus. So one of the early perceived lessons of the attacks was the need for speed, for a sort of deftness in prosecuting the War on Terror that had been lacking during previous administrations (don't forget, when it was hunting bin Laden, the Clinton White House unsuccessfully asked Congress for many of the terror law changes ultimately included in the Patriot Act).

Another early lesson was more fundamental: crime and punishment as America had known it for centuries was inapt and inept against cells like al-Qaeda. Rather than punishing terrorists for the crimes they had committed, rather than waiting for a mass casualty event caused by suicidal suspects who likely wouldn't be around for trial anyway, the government would have to do more to prevent the crimes in the first place. This is why so many terror suspects have been arrested and charged before they have come close to implementing their alleged plots; the feds say there is no margin for error or time to wait when thousands of lives (or more) may be at stake.

If al-Qaeda was part criminal conspiracy, part army of God, part terror organization, and part business venture, the United States would have to adopt hybrid legal measures to combat the practical threats posed by the group. The murkiness of our enemies begat a murkiness of our legal principles and a level of secrecy for executive branch policies that defied objective review from the other two branches of government. If there were no internment camps this time around, there was the extralegal roundup of hundreds of Muslims on material witness warrants. And there was Maher Arar, the Canadian citizen whose rendition and torture story encompasses so many of the excesses of its time.

During the Age of Fear, the Bush administration freely blended the presidency's traditional war powers, which are constitutionally broad anyway, with its traditional law enforcement powers, which were far more circumscribed. The USA Patriot Act, to cite just one example, gave the White House explicit permission to breach the wall separating foreign intelligence gathering and domestic law enforcement surveillance. The Foreign Intelligence Surveillance Act was altered to make it easier for the police to spy on citizens without a prior court order. Since the battlefield, technically, was everywhere, sweeping presidential power was allowed to creep into all corners of American life. Your phone conversations can be monitored. Your bank accounts searched. Your emails evaluated by intelligence officials.

Alas, during this period, the executive branch did what many governments throughout history have done when given sudden swaths of unchecked power; it went too far. It pushed beyond the boundaries which its many constituents were willing to accept or abide. The AUMF of September 18, 2001, was cited as a basis for the "torture memos," drafted by White House lawyers to justify waterboarding and other forms of "enhanced interrogation." Executive branch policies toward Iraqi detainees led to the scandal at the Abu Ghraib prison. Foreign nationals were "rendered" to secret prisons, where they were tortured in contravention of international law. And a 2002 executive order went beyond even the new FISA and Patriot Act laws to allow warrantless surveillance of American citizens.

Some of these excesses were known to the world on June 28, 2004, when Supreme Court Justice Sandra Day O'Connor declared in Hamdi v. Rumseld that the War on Terror did not give President Bush "a blank check" to trample the constitutional rights of U.S. citizens. But the Court's majority ruling that day gave both legal and political cover to civil libertarians, lower court judges, and others to more forcefully challenge some of the executive branch assertions that had been all but rubber-stamped immediately after the terror attacks. The Age of Doubt had begun. Three more times -- from 2006 to 2008 -- the conservative Supreme Court would rebuff the administration's terror law plans.

The Age of Reckoning began with the new president pledging, among other things, to close the odious terror law prison at Guantanamo Bay, Cuba. That it is not yet closed -- indeed, that its continued existence seems more assured now than ever -- is the clearest indication yet that presidential power over the War on Terror has waned; that it has given way to some of the same old partisan furies that existed before the Twin Towers fell. A Congress that dared not object to President Bush's most controversial policies-- which included releasing terror detainees back to their native countries on a promise of good behavior-- now has raised its back up against some of President Obama's efforts to similarly end the American experience at Gitmo.

So it took less than 10 years for "politics as usual" to again dominate terror law policies. In fact, it took less time for traditional "checks and balances" to regain their predominance than it has taken to successfully prosecute the two living men most reponsible for the attacks of September 11, 2001, Khalid Sheik Mohammed and Ramzi Binalshibh. Having long ago confessed their roles in the 9/11 attack, they are still at Guantanamo, in legal limbo, waiting for the day when American officials finally process them through the system and send them to their ultimate destination.

Article III: The Judiciary

At first, when it came to terror law matters, federal judges across the country accepted as Gospel the pronouncements offered in court and in court papers by the executive branch. They universally acquiesced to claims by the Bush Administration that the presidency's inherent constitutional war powers, and those expressly given to it by Congress under the AUMF and the Patriot Act, should alone resolve the question of which investigation should proceed or which terror law suspect should be detained. Don't worry your pretty little heads about it, the White House told the judiciary, over and over again.

Comparing the War on Terror to traditional wars, citing precedent from the Civil War to World War II, the judiciary by and large in the Age of Fear abdicated one of its core constitutional functions; that of interjecting itself squarely and ufairly between the individual and the state. You can today still understand, or perhaps even remember, the concern: no judge wanted to be the one to second-guess military officials and prematurely release a deadly terrorist. No judge wanted to thwart a counter-terror investigation in its nascency. Better safe than sorry, judge after judge ruled in case after case, when all anyone had to evaluate the merits of the case were the words of government officials.

Take Yaser Esam Hamdi, the American citizen apprehended in Afghanistan in the months following the attacks on America. As we have seen, Hamdi ultimately won his due process case before the Supreme Court. But in 2002 and 2003, as his case wound through the federal courts, he might as well have been the main character in a Kafka play. Here is the link to a January 2003 ruling by 4th U.S. Circuit Court of Appeals ruling -- it would never come down the same way today. The judges were unwilling to allow Hamdi to have access to his own lawyer. They were unwilling to conduct a meaningful evaluation of the allegations against him. As far as the court was concerned, Hamdi was a prisoner of an ongoing war.

Gradually, however, federal judges began to rediscover their inquisitive nature. It wasn't because they had changed their view of the mandates of the Constitution. It wasn't just because the Supreme Court in 2004 had stood up to the Bush White House. It was because, in terror law cases from coast to coast, judges began to notice a gulf between what executive branch officials were asserting in court and what the objective truth was revealing beyond the courtroom. A credibility gap emerged. The White House had consistently cried wolf. Many detainees turned out either to be low-level criminals or simply victims of circumstances or tribal feuds.

And Hamdi? After years of solemnly proclaiming him to be a dangerous terrorist, after swearing in court that he was too menancing even to be allowed assistance of counsel, the Bush White House suddenly released him and sent him to Saudi Arabia a free man. Never mind, the executive branch said when it came to this iconic terror suspect.

As the Age of Fear passed into the Age of Doubt on into the Age of Reckoning, the judiciary began to look more closely at the evidence in terror law cases. Judges began to ask in court many of the tough questions they had long asked in regular criminal cases, challenging with less much deference the broad government assertions they had earlier allowed to pass uncontested. In many instances, from domestic surveillance to governmental immunity, the White House and Congress were still was able to convince the courts to protect federal interests over individual challenges. But the balance became more familiar; after all, even before September 11, 2001, the government almost always won in court when terror law issues were raised.

Because the judicial branch is a reactive branch -- because the federal courts may only accept or decline the cases that are brought to it -- it is difficult to compare its response to 9/11 with the repsonse offered by the executive and legislative branches. For example, even though the Supreme Court has repeatedly told the White House and Congress that it's been wrong on the rules governing military tribunals, it has persistently failed to give those other branches specific guidance on how the rules should be fixed. And while some federal judges even early on bravely challenged the most dubious White House policies, many more were content to take the path of least resistance. In this respect, I suppose, they were no different than the rest of us.

So, ten years after the deadliest criminal act in the history of the United States, the transformation of American law is not yet complete. It has not yet become what it will eventually be. We still don't have military commission rules that have passed constitutional muster. We still haven't prosecuted any of the men directly responsible for the attacks on America. We still don't have a final reckoning on the scope of police power to eavesdrop on virtually every facet of our lives. We still don't know the scope of the government's secret prisons program. As former Secretary of State Donald Rumsfeld may have put it, we still don't know what we don't know about all the rest of it.

In the meantime, for better and for worse, the unity of public purpose that accompanied the early post-9/11 period (on terror law and virtually everything else) has given way to partisan bickering. You can argue that this is a good thing -- that our beloved system of "checks and balances" has finally returned. Or you can argue this is a bad thing -- that the paralytic impact of gridlock will cause in ways we cannot yet know some catastrophic failure of the sort that helped make September 11, 2001, one of the worst days in the life of our nation. It's a debate we will likely all be struggling with ten years from now.