Cass R. Sunstein: The 9-11 Constitution
[Cass R. Sunstein is a contributing editor at TNR. He is the author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America (2005).]
After the attacks of September 11, constitutional law was bound to change. Serious threats to national security have always had large effects on the nation's understanding of its founding document. A major reason is that the president's lawyers tend to see the Constitution as a highly flexible instrument, permitting their client to do what he thinks must be done. Francis Biddle, attorney general under Franklin Delano Roosevelt, said that "the Constitution has never greatly bothered any wartime president." Courts often ratify the decisions of wartime presidents. Roosevelt himself placed Japanese-Americans on the West Coast in internment camps, and the Supreme Court upheld his decision.
We are starting to see the shape of a new vision of the Constitution. The legal stage was set on September 25, 2001, when the Department of Justice advised the White House that "the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks." In the key memorandum, the White House was told that if the president wants, military "force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon." Indeed, "the amount of military force to be used in response, or the method, timing, and nature of the response ... are for the President alone" to decide.
In 2002, the Department of Justice's Office of Legal Counsel indicated that as commander-in-chief of the Armed Forces, the president has the power to engage in coercive interrogation, even torture--and that Congress lacks the power to limit that authority. The executive branch has argued that the president has the authority to seize and to detain "enemy combatants," including American citizens captured on American soil, and to hold them for extended periods without access to a lawyer, judicial review, or a hearing (to determine whether they are, in fact, enemy combatants). Most recently, Attorney General Alberto Gonzales has claimed that, whatever Congress says, the president has the "inherent" power to monitor telephone calls and e-mail messages between Americans and individuals in foreign countries. Perhaps most important, the executive branch believes that, as a matter of constitutional law, the president has the authority to make war without congressional approval--though President Bush, to his credit, sought such approval for the wars in Afghanistan and Iraq.
The Supreme Court has rejected the Bush administration's claim of power to detain enemy combatants without hearings; we do not know how it will react to the rest of the administration's claims. But (and this point is often neglected) the legal views of the executive branch can be every bit as important as those of the Supreme Court. In the domain of foreign affairs, the central legal issues rarely come before the Court at all. The law is effectively settled within the executive branch, or by informal agreements between the president and Congress. In negotiating those agreements, the president has formidable advantages over the legislature. The executive branch's lawyers are talented, numerous, and exceptionally well organized. They can overwhelm Congress with their intensity and their expertise. Whether or not courts ultimately accept the legal positions of the Bush administration, most of those positions are now operating as the law.
It is important to emphasize that, as a technical matter, few if any of those positions are preposterous or unprecedented. Presidents always read the Constitution in a way that serves the presidency. In general, the Bush administration has built on the arguments of previous presidents, rather than re-writing the separation of powers from scratch. But taken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions. ...
Read entire article at New Republic
After the attacks of September 11, constitutional law was bound to change. Serious threats to national security have always had large effects on the nation's understanding of its founding document. A major reason is that the president's lawyers tend to see the Constitution as a highly flexible instrument, permitting their client to do what he thinks must be done. Francis Biddle, attorney general under Franklin Delano Roosevelt, said that "the Constitution has never greatly bothered any wartime president." Courts often ratify the decisions of wartime presidents. Roosevelt himself placed Japanese-Americans on the West Coast in internment camps, and the Supreme Court upheld his decision.
We are starting to see the shape of a new vision of the Constitution. The legal stage was set on September 25, 2001, when the Department of Justice advised the White House that "the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks." In the key memorandum, the White House was told that if the president wants, military "force can be used both to retaliate for those attacks, and to prevent and deter future assaults on the Nation. Military actions need not be limited to those individuals, groups, or states that participated in the attacks on the World Trade Center and the Pentagon." Indeed, "the amount of military force to be used in response, or the method, timing, and nature of the response ... are for the President alone" to decide.
In 2002, the Department of Justice's Office of Legal Counsel indicated that as commander-in-chief of the Armed Forces, the president has the power to engage in coercive interrogation, even torture--and that Congress lacks the power to limit that authority. The executive branch has argued that the president has the authority to seize and to detain "enemy combatants," including American citizens captured on American soil, and to hold them for extended periods without access to a lawyer, judicial review, or a hearing (to determine whether they are, in fact, enemy combatants). Most recently, Attorney General Alberto Gonzales has claimed that, whatever Congress says, the president has the "inherent" power to monitor telephone calls and e-mail messages between Americans and individuals in foreign countries. Perhaps most important, the executive branch believes that, as a matter of constitutional law, the president has the authority to make war without congressional approval--though President Bush, to his credit, sought such approval for the wars in Afghanistan and Iraq.
The Supreme Court has rejected the Bush administration's claim of power to detain enemy combatants without hearings; we do not know how it will react to the rest of the administration's claims. But (and this point is often neglected) the legal views of the executive branch can be every bit as important as those of the Supreme Court. In the domain of foreign affairs, the central legal issues rarely come before the Court at all. The law is effectively settled within the executive branch, or by informal agreements between the president and Congress. In negotiating those agreements, the president has formidable advantages over the legislature. The executive branch's lawyers are talented, numerous, and exceptionally well organized. They can overwhelm Congress with their intensity and their expertise. Whether or not courts ultimately accept the legal positions of the Bush administration, most of those positions are now operating as the law.
It is important to emphasize that, as a technical matter, few if any of those positions are preposterous or unprecedented. Presidents always read the Constitution in a way that serves the presidency. In general, the Bush administration has built on the arguments of previous presidents, rather than re-writing the separation of powers from scratch. But taken as a whole, the claims of the Bush administration may be properly regarded as an effort to create a distinctive set of constitutional understandings for the post-September 11 era. The White House is attempting to create a kind of 9/11 Constitution. A defining feature of these understandings is a strong commitment to inherent presidential authority over national security, including a belief that in crucial domains the president can act without congressional permission, and indeed cannot be checked by congressional prohibitions. ...