Sometimes other branches of government did step in to rein in the White House. “This is, I think, more of the defining separation of powers moment of the post-9/11 era than any sort of unilateral assertion of executive branch power.” Generally speaking, he says, “courts really seemed hesitant for a very long time to second-guess the political branches, so long as they were working together.” “Essentially you saw Congress facilitating the expansion of executive branch power,” says Anderson. But Congress passed the 2006 Military Commissions Act shortly thereafter granting that authority, which marks a crucial dynamic at play in this era: Congress and the Bush Administration worked jointly to expand the White House’s reach in the years after the attacks. Rumsfeld, for example, the Supreme Court ruled that the military commissions system was unconstitutional because it needed Congressional authorization. The executive branch’s assertions didn’t go unchallenged. “I think there’s a recognition both in legislation and in court decisions that some extreme measures have to be measured against the scope of that core responsibility.” “The government’s core responsibility is to protect American citizens from attack and violence,” argues Terwilliger.
13, 2001, President Bush also issued an executive order establishing separate military commissions-which would have limited procedural protections, limited review processes, and a high degree of secrecy-to try detainees kept at Guantánamo Bay, Cuba. These included the legality of “enhanced interrogation techniques”-tactics that subsequent Administrations and a years-long Senate investigation later concluded constituted torture. would need more tools to gather intelligence.īeginning in the weeks after 9/11, the Department of Justice’s Office of Legal Counsel issued memorandums authorizing a raft of unprecedented executive powers. But to execute such a complex war, argued then-Attorney General John Ashcroft, the U.S. Shortly after 9/11, the Bush Administration declared a war on terrorism to go after the perpetrators of the deadly attacks. Here are some of the key legal arenas that were shaped by 9/11. “Fail-safes that we have all painfully learned can be insufficient.” “When a president has what appears to be unlimited powers… the only thing holding them back are the norms of the office of the presidency and their own personal accountability,” she says. “I think one of the legal legacies of 9/11 is the government’s ability to collect that kind of information…That enhancement has been very important and needs to be maintained.”īut for Debra Perlin, the director of policy and program at the progressive American Constitution Society (ACS), many of those changes are a “cautionary tale” of rash decision-making. “The most potent weapon in preventing terrorist attacks is intelligence,” says George Terwilliger, a member of the conservative Federalist Society and the former Deputy Attorney General under President George H.
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