The Redefinition of Presidential Power in Post 9/11 America and Its Consequences
The long history of the United States of America can essentially be boiled down to one question: how powerful should the central government of our democracy be? The continuous grapple between power and limits is at the heart of the founding and continuation of the American democratic system. In their initial rejection of royal prerogative—the assignment of certain powers, rights, privileges, and immunities to the monarch or Crown, based neither on statutes or common law, but instead on the judgment of the Crown—our founding fathers declared independence with the sole intention of creating a nation free from a monarch. Their first try was the Articles of Confederation. They created a system of government without an executive branch in order to prioritize limits on government tyranny. Their experiences in England made the founders question the need for an executive at all. As a result, the government was essentially a joke; the central government could only ask nicely for taxes, couldn’t regulate commerce, and had no standardized currency. When Shay’s rebellion occurred the Articles of Confederation’s framework restricted the authority to raise an army in emergency situations. These shortcomings highlighted the importance of an executive force in government, but it also created a new dynamic in the power versus limits debate. While initially—in the absence of an executive—there was a necessity to balance central government power versus the protection of individual rights, the introduction of the executive branch in the constitution posed a new question: how much power should the executive have in relation to the rest of the central government? In order to answer this question the founding fathers, particularly James Madison, developed and incorporated a system of checks and balances that served as the ideological underpinnings for the constitution. Madison’s system ensured that no one branch of government would have an overwhelming concentration of power to themselves. Madison intended for each of the three branches “ambition to counteract ambition”. Both the legislature and the courts were designed to restrict presidential authority, not out of the goodness of their own heart, but because that was the only way to prevent further power from slipping out of their hands. The system allowed for an executive branch that was powerful enough to defend against emergencies, but also accountable for its action. Its history is one of a balancing act, sometimes expanding presidential war powers such as in Korematsu v. the United States. And sometimes restricting presidential power such as the Youngstown Steel case. There was a natural ebb and flow, but the framework of our constitution ensured that one branch could not become all-powerful. However, that balance was upset in the aftermath of 9/11 and the Bush administration.
Post 9/11 and the Congressional Authorization of Military Force
The careful balance between power and limits was forever unsettled in the aftermath of the horrific events on September 11th, 2001. A nation still reeling from the deadly attack heard George H.W. Bush’s proclamation from the rubble of the twin towers, “I can hear you, the rest of the world hears you, and the people who knocked these buildings down will hear all of us soon”. His job approval soared to record highs and the nation screamed bloody murder in near unison. The president had galvanized the people and the legislature alike; on the surface, they had a common enemy. Three days after the towers collapsed, Congress signed a joint resolution authorizing the use of military force(AUMF). Section 2(a) of the joint resolution stated that:
the President is authorized 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.
There were certain caveats, specifically regarding the length of time and the war powers resolution, but as long as the AUMF remained in effect the president could take military actions within his “discretion” without the need for a Congressional declaration of war.
While authorized for the best intentions, in retrospect, Congress approved a dangerous lack of accountability for the executive and eliminated meaningful limits previously placed on presidential authority. As you will see, Congress’s actions served as the first nail in the coffin of our liberal democracy, a democracy characterized by free and fair elections, separation of powers, and adherence to the rule of law. Each of the substantial steps taken by the 21st-century presidents expanded executive power while diluting the importance of checks and balances. that was the true outcome of the “War on Terror”: a stronger executive and weaker liberal democracy.
Bush and the Unitary Executive Theory
In the months following 9/11, Bush and his team successfully utilized the fervor of his constituents, now a vast majority of America, to pressure Congress into bolstering executive power. With advice from his vice president Dick Chaney and other key players, the Unitary Executive Theory became the structure for the Bush Administration’s “War on Terror” campaign and actively undermined both Congressional power and a healthy liberal democracy. But what is it? Proponents of the Unitary Executive Theory insist that the “vesting clause” of the constitution gives the president sole authority over the executive powers. One of those powers designates the President as the sole commander in chief with authority over the military. Despite the constitution directly allocating the “power to declare war” to Congress, scholars who favor the Unitary Executive Theory argue that the president has essentially the unofficial authority to engage in conflict. While there is often variation and debate from scholars about the strength and scope of the doctrine—there are two widely accepted classifications of unitary theory: narrow and broad— the Bush administration favored the broader version. Vice President Chaney carefully crafted his vision of a “unitary executive” on the basis that in order to properly carry out presidential duties the president should not be bound by Congress or the courts in exercising his executive power. Almost immediately this ideological framework had detrimental effects on the health of our liberal democracy and the institution of Congress.
Warrantless Wiretapping Under the Bush Administration
Congress’ initial authorization of military force had ramifications to their power that not even they could have foreseen. One of the clearest incidents of disregard for Congressional power was the Bush administration’s violation of the Foreign Intelligence Surveillance Act(FISA). Nearly three decades before the collapse of the twin towers and the authorization of the “War on Terror” President Nixon utilized warrantless wiretappings to spy on his political opponents for personal gain. After Nixon’s resignation, the Senate voted to establish the Church Committee, which investigated a wide range of executive branch abuses of power that had taken place for decades. They discovered multiple surveillance programs that existed in violation of privacy rights. The Church Committee concluded that at its height, the NSA analyzed as many as 150,000 private messages a month. This alarming violation of citizens’ right to privacy prompted Congress to attempt to rebalance the power of the presidency. They passed the Foreign Intelligence and Surveillance Act, which essentially informed the president of the legal and non-legal circumstances for wiretaps. It was an important limit on the precedent that was brushed aside during the “War on Terror”, having detrimental effects on the health of our liberal democracy.
In December of 2005, the New York Times revealed that in connection with the “War on Terror” the Bush administration had been monitoring telephone calls and emails between suspected terrorists and domestic citizens from within the U.S. This announcement was deeply controversial because it seemed to violate both FISA and Katz v. the United States. In the case of Katz v. In The United States, the Supreme Court found that the Fourth Amendment protections from unreasonable searches and seizures also applied to wiretaps. That meant that without a warrant acquired from a judge, any wiretap concerning the communications of a United States citizen was a violation of their constitutional right to privacy. The Supreme Court stated that requiring a warrant is part of the checks and balances built into the Constitution to prevent the
exercise of arbitrary power. The majority opinion of the case stated that “These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive.
It was apparent from both Congress and the judiciary that executive wiretapping was a clear overextension of presidential power. And yet, under the guise of preventing more terror attacks, the Bush administration was able to utilize Congress’ AUMF to violate Congress’s own law preventing warrantless wiretapping. In retrospect, the destructive implication of this measure is obvious. The Bush administration was able to continue warrantless wiretapping despite being directly in conflict with both a judicial opinion and statute. Furthermore, wiretapping was acknowledged to be a breach of fourth amendment rights. This set the precedent that the post 9/11 presidency could disregard Congress, the Supreme Court, and even the constitution on the basis of national security. It was an action that is irreconcilable with the American structure of checks and balances and the rule of law. With Congress’s passage of FISA, they actualized Madison’s claim that ambition will counteract ambition. They acknowledged that the president was going too far, potentially threatening their power, and successfully stopped him. Yet, in the “War on Terror” era where Congress had every opportunity to prevent both a violation of constitutional protections and power from slipping out of their hands, they instead further endorsed Bush’s “War on Terror” with the passage of the U.S.A. Patriot Act. This passage further added the presidential arsenal, allowing for expanded wiretap powers and bolstering presidential power long after Bush left office.
Whether intentional or not, the Congressional authorization of military force was a green light for the Bush administration to proceed with the loosely defined “War on Terror” with complete immunity, unreviewed and often times unaware by Congress. Their action stood as a confirmation that in a loosely defined wartime, the president can act with near impunity. It was a precedent that was set by Congress that continued to be utilized and abused, long after the Bush administration was replaced.
Proponents of Bush-era policy argued that in his declaration of the “war on terror” Bush was acting well within his rights; Scholars and judicial precedent alike agree that the executive has both the power and the duty to repel sudden attacks. There is a clear precedent of executives overstepping their usual limits in emergency situations. Additionally, the Bush administration’s plan was authorized eagerly by Congress, further reinforcing the argument that he acted lawfully. Most centrally, however, Bush and his counsel argued that their acquisition and expansion of emergency power with a rampant disregard for accountability was a temporary measure meant to prevent another 9/11 from ever occurring. Yet, as we’ll observe it was anything but temporary
Obama and the Failed Presidential Promise
By the end of his presidency, Bush and his council had dramatically upset the balance of power and limits. Under Congressional authorization to continue his war on terror the Bush administration 1) engaged in counterintelligence without initial approval from either branch of government. 2) created an interrogation program that utilized techniques widely considered to be torture with little legal foundation. And 3) opened up Guantanamo Bay, a military prison off the coast of Cuba, that detained war prisoners rarely with due process and often without a trial.
For the critics of the Bush-era “War on Terror” policies, the up-and-coming senator Barack Obama was positioned to be a refreshing change of pace. One of his major campaign promises—the eventual closure of Guantanamo Bay— appeared to be a rejection of the Bush administration’s presidential power expansion. However, most dishearteningly, Obama would continue and even expand, Bush’s war on terror in all but the name.
This was particularly apparent in March of 2011 when President Obama signed Executive Order 13567 entitled “Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to The Authorization of Military Force”. As professor Edelson illustrates:
Executive Order 13567 describes how prisoners held at Guantanamo as of March 7, 2011, could be subject to “continued law of war detention” if “necessary to protect against a significant threat to the security of the United States.” The order defines “law of war detention” as “detention authorized by the Congress under the AUMF, as informed by the laws of war.
In the executive order, President Obama essentially withdraws his promise to close Guantanamo Bay asserting that he can continue to detain prisoners indefinitely under an AUMF that is nearly a decade old. It was a further extension of the executive power and a further infringement on the guaranteed constitutional right to due process. Obama and his legal counsel argued that this was a safety precaution because the detainees were a potential threat to national security. But it begs the question: if the administration had evidence clearly demonstrating the perpetrator’s guilt why are they not being tried and convicted? And if they do not have evidence why are they operating on the presumption of guilt? It seemed to be yet another example of constitutional protections being cast aside under the guise of an emergency.
Obama’s inability to close Guantanamo and continued detention of suspected criminals without a trial was not unique to his presidency, but it indicated that the “War on Terror” was less of a set of policies set by one president and more of a restructuring of presidential power. It redefined both the power and limits of the executive under one supreme principle: if we are always in emergency wartime, the president can act with impunity, free from the judgment of other branches and constitutional responsibility. That is clearly the intent and the outcome, with the AUMF still greenlighting a war that has been waged for over two decades.
The AUMF is a 21st-century example of the old saying “the path to hell is paved with good intentions”; While it began as a reasonable authorization for the president to repeal the sudden attack on 9/11, it soon morphed into a complete Congressional endorsement of anything loosely connected to the “War on Terror”. From troop deployment to detention without a trial to warrantless wiretapping, the AUMF became a legal basis for the rapid expansion of presidential power, at the detriment of individual freedoms normally guaranteed within a liberal democracy.
However, 21st-century presidents have posed other challenges to liberal democracy, independent of the “War on Terror”.
The Authoritarian Challenge and The Issues with an Elected Congress
It can often be difficult to tell if your nation’s democracy is dying. It’s not drastic like in the movies; you don’t wake up one day in a dystopian society, stripped of your rights and food. However, if the root cause isn’t identified—much like a tumor—it could have dire consequences. Throughout the 21st century, we have seen an unprecedented expansion of emergency presidential power from both presidents. Subsequently, with the continued approval of Congress and the executive branch’s seeming immunity from checks and balances, there has been more than a decade-long downward trajectory in the health of our liberal democracy and the adherence to the rule of law.
President Donald Trump is an extreme example of the detrimental consequences of an executive that no longer believes the rule of law applies to him. In order to understand the threat of the Trump presidency, we should first define authoritarianism. In their book entitled How Democracies Die, Steven Levitsky and Daniel Ziblatt introduce a litmus test to identify authoritarian leaders. It consists of four parts: 1) Rejecting or showing a weak commitment to democratic rules. 2)Denying the legitimacy of political opponents. 3) Encouraging or tolerating violence. And 4) A readiness to stifle or limit the civil liberties of opponents, including the media. An authoritarian is inherently incompatible with and thus a threat to liberal democracy. Several authoritarian tendencies were made apparent in Donald Trump’s populist rhetoric throughout his campaign and presidency. Firstly, He delegitimized his political opponents when he called for the imprisonment of Hillary Clinton with the campaign slogan “lock her up”. Trump also undermined the democratic concept of free and fair elections, twice. Initially, in 2016, Trump claimed that he should have won the popular vote, but millions of illegal immigrants had tipped the voting in Clinton’s favor. Finally and Most crucially, Trump claimed the only reason he lost the 2020 election was due to mass mail-in voter fraud. He refused to concede the election, a democratic norm that has existed for over two centuries. As a result, A group of supporters—arguably directly invited by Trump—stormed the capitol as a violent mob. Trump meets all the criteria of an authoritarian leader. In an interview, Steven Levitsky and Daniel Ziblatt argued that “Trump was easily identifiable as someone who is not committed to the democratic rules of the game…there is real cause for concern for the health of our democratic institutions”.
it is often difficult to identify the withering of democracy. It is a slow process that, more often than not, begins with a justified seizure of power. While it is still hotly debated whether the Bush administration’s early expansion of presidential power—especially when juxtaposed with their disregard of constitutional protections— was justified, as we grew further away from the tragedy of 9/11, presidential overreach became more intrusive and dangerous. Donald Trump was just the most recent and obvious example of a president acting against the interest of liberal democracy, but he wasn’t the first.
When our hurt nation cried out for revenge, Bush obliged, and Congress—reliant on the votes of the people desperate to strike revenge on al-Qaeda—stepped out of the way; not wanting to seem soft on terrorism they allowed him to expand his power to the detriment of the system of checks and balances that we’ve established. They continued to greenlight an endless war with little end in sight while their laws were disregarded and their AUMF was overused. They refused to remove Donald Trump from office, despite his authoritarian tendencies and rejection of liberal democracy. The legacy of these three posts 9/11 presidents will be one of detrimental presidential action; Violation of constitutional protections, two decades without an official declaration of war, authoritarianism, and power. And Congress’ legacy will be one of an abettor, complicit in the steady erosion of checks and balances, particularly from their own branch. In Youngstown Sheet—arguably the most important court case for the limitation of presidential power in the 20th century— Justice Jackson stated that “only Congress itself can prevent power from slipping through its fingers”. In the years following 9/11 power was steadily siphoned from Congress to an administration that fiercely advocated for the use of unitary executive authority. Congress ignored Jackson’s warning and continued to authorize the expansion of presidential power, complicit in both the dilution of their own power and the undoing of our long upheld system of checks and balances. This was not only an unwise moral decision—the detention of citizens and non-citizens without trial; violation of U.S. privacy protections; and counterinterrogation torture techniques— but, it was a costly precedent that drastically expanded presidential power, an expansion that Justice Jackson warned us about, and began a long descent that challenged the health of our liberal democracy, eventually culminating in authoritarian leadership.
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