http://www.globalissues.org/article/460/executive-power-after-9-11-in-the-united-states
Above the Law: Executive Power after September 11 in the United States
By Alison Parker and Jamie Fellner
Human Rights Watch, World Report 2004
January 2004
"Good Government Under Law
In fourteenth century Italy, Ambrogio Lorenzetti painted frescoes in Siena’s city hall depicting good and bad government through allegorical figures. Rendered in shades of gold, cobalt blue, red, and ochre, the fresco of good government depicts Justitia twice, reflecting her cardinal importance. In one classic image, she sits balancing the scales held by wisdom. The fresco of bad government presents the enthroned figure of Tyrannia, who sits above a vanquished Justitia, pieces of broken scales at her side. Lorenzetti’s message, drawing on a revolution in political thought, was clear: justice is central to good government. In bad government, the ruling power places himself above a defeated and supine Justitia. Justice no longer protects the individual -- the executive acts above the law and without restraint.
In Renaissance Siena, as elsewhere in Western Europe, officials who were part and parcel of the ruling power meted out justice. Modern governments have tried to ensure justice by creating an independent and impartial judiciary, capable of holding the government as well as the governed accountable for breaking the law. Certainly, the separation of the courts from the executive branch and the ability of the courts to scrutinize the constitutionality of executive actions has been a crucial feature of the legal framework in the United States. Indeed, it has been the lynchpin for the rule of law and the protection of human rights in that country.
Nevertheless, since taking office, U.S. President George W. Bush has governed as though he had received an overwhelming mandate for policies that emphasize strong executive powers and a distrust -- if not outright depreciation -- of the role of the judiciary. The Bush administration has frequently taken the position that federal judges too often endorse individual rights at the expense of policies chosen by the executive or legislative branches of government, and it has looked to nominate judges who closely share its political philosophy. But the concern is more fundamental than specific judges or decisions. Rather, the administration seems intent on shielding executive actions deemed to promote national security from any serious judicial scrutiny, demanding instead deference from the courts on even the most cherished of rights, the right to liberty.
Much of the U.S. public’s concern about post-September 11 policies has focused on the government’s new surveillance powers, including the ability to peruse business records, library files, and other data of individuals against whom there may not even be any specific suspicion of complicity with terrorism. These policies potentially affect far more U.S. citizens than, for example, the designation of “enemy combatants,” or the decision to hold individuals for months in prison on routine visa charges. But the latter efforts to diminish the right to liberty and to curtail or circumvent the courts’ protection of that right may be far more dangerous to the U.S. polity as a whole. Critics of the administration’s anti-terrorism efforts have raised concerns that civil liberties are being sacrificed for little benefit in national security. But those critiques have generally failed to grapple with more fundamental questions: who should decide how much protection should be afforded individual rights and who should determine what justice requires -- the executive or the judiciary? And who should determine how much the public is entitled to know about domestic anti-terrorist policies that infringe on individual rights?
Many of the Bush administration’s post-September 11 domestic strategies directly challenge the role of federal and administrative courts in restraining executive action, particularly action that affects basic human rights. Following September 11, the Bush administration detained over one thousand people presumed guilty of links to or to have knowledge of terrorist activities and it impeded meaningful judicial scrutiny of most of those detentions. It has insisted on its right to withhold from the public most of the names of those arrested in connection with its anti-terrorism efforts. It has designated persons arrested in the United States as “enemy combatants” and claims authority to hold them incommunicado in military prisons, without charges or access to counsel. It insists on its sole authority to keep imprisoned indefinitely and virtually incommunicado hundreds of men at its military base at Guantanamo Bay, Cuba, most of whom were taken into custody during the U.S. war in Afghanistan. It has authorized military trials of foreign detainees under rules that eschew a meaningful right of defense and civilian appellate review.
In all of these actions, the Bush administration has put the ancient right to habeas corpus under threat, perhaps unsurprisingly since habeas “has through the ages been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive.”24 Habeas corpus, foreshadowed in 1215 in the Magna Carta and enshrined in the U.S. Constitution after centuries of use in England, guarantees every person deprived of his or her liberty a quick and efficacious check by the courts against “all manner of illegal confinement.”25
The Bush administration argues that national security -- the need to wage an all out “war against terrorism” -- justifies its conduct. Of course, there is hardly a government that has not invoked national security as a justification for arbitrary or unlawful arrests and detentions. And there is hardly a government that has not resisted judicial or public scrutiny of such actions. But the administration’s actions are particularly troubling and the damage to the rule of law in the United States may be more lasting because it is hard to foresee an endpoint to the terrorist danger that the administration insists warrants its actions. It is unlikely that global terrorism will be defeated in the foreseeable future. Does the U.S. government intend to hold untried detainees for the rest of their lives? Does it intend to keep the public from knowing who has been arrested until the last terrorist is behind bars?
U.S. anti-terrorism policies not only contradict principles woven into the country’s political and legal structure, they also contradict international human rights principles. The diverse governmental obligations provided for in human rights treaties can be understood as obligations to treat people justly. The imperative of justice is most explicitly delineated with regard to rights that are particularly vulnerable to the coercive or penal powers of government, such as the right to liberty of person. Human rights law recognizes that individual freedom should not be left to the unfettered whim of rulers. To ensure restraints on the arbitrary or wrongful use of a state’s power to detain, the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, requires that the courts -- not the executive branch -- decide the legality of detention.26 The ICCPR also establishes specific requirements for court proceedings where a person’s liberty is at stake, including that the proceedings be public. Even if there were to be a formally declared state of emergency, restrictions on the right to liberty must be “limited to the extent strictly required by the exigencies of the situation.”27
Justice cannot exist without respect for human rights. As stated in the preamble of the Universal Declaration of Human Rights, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The Bush administration’s rhetoric acknowledges human rights and insists that the fight against terrorism is a fight to preserve “the non-negotiable demands of human dignity, the rule of law, limits on the power of the state—and equal justice,” as President Bush told the graduating class of the West Point military academy in June 2002. But the Bush administration’s actions contradict such fine words. Taken together, the Bush administration’s anti-terrorism practices represent a stunning assault on basic principles of justice, government accountability, and the role of the courts.
It is as yet unclear whether the courts will permit the executive branch to succeed. Faced with the government’s incantation of dangers to national security if it is not allowed to do as it chooses, a number of courts have been all too ready to abdicate their obligation to scrutinize the government’s actions and to uphold the right to liberty. During previous times of national crisis the U.S. courts have also shamefully failed to protect individual rights -- the internment of Japanese Americans during World War II, which received the Supreme Court’s seal of approval, being one notorious example. As new cases arising from the government’s actions make their way through the judicial process, one must hope the courts will recognize the unprecedented dangers for human rights and justice posed by the Bush administration’s assertion of unilateral power over the lives and liberty of citizens and non-citizens alike..."
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