July 20, 2012
“It’s going to take a long time to win this war,” President George W. Bush told a group of Pentagon employees on September 17, 2001, six days after the terrorist attacks that marked a new era in global history. “Americans should not expect one battle but a lengthy campaign, unlike any other we have ever seen,” he said, three days later, at a joint session of Congress. Bush was right. More than a decade after 9/11, Osama Bin Laden is dead and many of his top associates have been killed or captured. And yet the endless war against Islamist terrorists—already the longest war in American history—continues on several fronts, in several countries, with no end in sight.
An endless war, and an endless emergency too. “A national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States,” Bush declared, three days after 9/11. Bush renewed the emergency declaration every subsequent year of his presidency. President Barack Obama renewed it as well every year in office. “The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues,” he proclaimed. “For this reason, I have determined that it is necessary to continue in effect . . . the national emergency with respect to the terrorist threat.”
War and emergency invariably shift power to the presidency. Permanent war and permanent emergency threaten to make the shift permanent. George W. Bush’s counterterrorism initiatives—warrantless surveillance, targeted killings, detention without trial, military commissions, limitations on habeas corpus, aggressive interrogations, and much more—were unthinkable on September 10, 2001. Bush succeeded in preventing another attack on the homeland, an accomplishment he described as the “most meaningful” of his presidency.
But many believe that his success came at an unacceptable cost to American legal traditions, and that he destroyed the constitutional separation of powers by violating scores of laws and snubbing Congress. “Decades from now,” said Republican Senator Arlen Specter at the twilight of the Bush presidency, “historians will look back on the period from 9/11 to the present as an era of unbridled executive power and Congressional ineffectiveness.”
Barack Obama campaigned against the Bush approach to counterterrorism and came to office promising to repudiate it and to restore the rule of law. “As for our common defense, we reject as false the choice between our safety and our ideals,” he said in his inaugural address. But in perhaps the most remarkable surprise of his presidency, Obama continued almost all of his predecessor’s counterterrorism policies. “Presidents don’t tend to give back power on their own volition,” remarked Princeton historian Julian Zelizer, nine months into the Obama presidency. “While there have been some changes it is difficult to conclude that the election made a serious dent in the strength of the executive branch.”
Spector and Zelizer—a mainstream politician and a progressive professor—reflect the widely held view that 9/11 was the death knell for the separation of powers and for presidential accountability. For many, James Madison’s famous concern that “no nation could preserve its freedom in the midst of continual warfare” has been realized. Books such as Bomb Power, The Decline and Fall of the American Republic, Madison’s Nightmare, and The Executive Unbound argue that 9/11 brought a dramatic shift of power to the President. These books differ in the details of their arguments and in their normative stance. But they generally agree with law professors Eric Posner and Adrian Vermeule, the authors of The Executive Unbound, that in military and national security affairs we live “in an age after the separation of powers, and the legally constrained executive is now a historical curiosity.”
The Revolution in Presidential Accountability
The problem with the conventional wisdom about the expansion of presidential power is that it tells only half the story. The rest of the story is a remarkable and unnoticed revolution in wartime presidential accountability that checked and legitimated this growth in presidential power.
The U.S. Constitution creates a system of “checks and balances” that gives other institutions—Congress, the courts, and the press—the motives and tools to counteract the President when they think he is too powerful, pursues the wrong policies, or acts illegally. Far from rolling over after 9/11, these institutions pushed back far harder against the Commander in Chief than in any other war in American history. The post-9/11 Congress often seemed feckless, especially in its oversight responsibilities. But it nonetheless managed to alter and regulate presidential tactics on issues—interrogation, detention, surveillance, military commissions, and more—that in previous wars were controlled by the President.
Congress was often spurred to action because the American press uncovered and published the executive branch’s deepest secrets. It was also moved by federal judges who discarded their traditional reluctance to review presidential military decisions and threw themselves into questioning, invalidating, and supervising a variety of these decisions—decisions that in other wars had been the President’s to make. Judicial review of the Commander in Chief’s actions often left him without legal authority to act, forcing him to work with Congress to fill the legal void.
These traditional forces received crucial support from something new and remarkable: giant distributed networks of lawyers, investigators, and auditors, both inside and outside the executive branch, that rendered U.S. fighting forces and intelligence services more transparent than ever, and that enforced legal and political constraints, small and large, against them.
On the inside, military and national security lawyers devoted their days and many of their nights to ensuring that the Commander in Chief complied with thousands of laws and regulations, and to responding to hundreds of lawsuits challenging presidential wartime action. These lawyers’ checks were complemented by independent executive-branch watchdogs, such as inspectors general and ethics monitors, who engaged in accountability-enhancing investigations of the President’s military and intelligence activities. These actors were empowered by a culture of independence that had grown up quietly in the previous three decades. And they enforced laws traceable to 1970s congressional reforms of the presidency that most observers assumed were dead but that turned out to be alive and quite fearsome.
On the outside, nongovernmental organizations like the American Civil Liberties Union and the Center for Constitutional Rights connected up with thousands of like-minded lawyers and activists in the United States and abroad. Together, these forces—often, once again, invoking laws and institutions traceable to decades-old legal reforms—swarmed the government with hundreds of critical reports and lawsuits that challenged every aspect of the President’s war powers. They also brought thousands of critical minds to bear on the government’s activities, resulting in best-selling books, reports, blog posts, and press tips that shaped the public’s view of presidential action and informed congressional responses, lawsuits, and mainstream media reporting…