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The US Judicial Response to Post-9/11 Executive Temerity and Congressional Acquiescence

David E. Graham
Publication date: 
Wed, 14 May 2008

The 11 September 2001 al-Qaeda terrorist attack on the United States produced not only human and material loss; it also resulted in an apparent loss of the nation's traditional adherence to the rule of law. Sensing the physical and emotional fear of the American public, as well as the political timidity of Congress, the Administration seized upon the aftermath of 9/11 to foster its concept of the ‘Unitary Executive’: a sweeping expansion of presidential authority.

Essential to its desire to expand its Executive powers was the Administration's ability to convince both the American people and their elected representatives that, given the events of 9/11, the United States was now at ‘war’ with not only al-Qaeda, but with ‘terrorism’, writ large. Playing on this theme, it was said that the president must be imbued with all of a chief executive's ‘war-making’ authority and act accordingly.
This attempt to deal with terrorists and terrorism in an armed conflict, Law of War context, and the Administration's subsequent misapplication of this body of law, has led to numerous legal challenges over the past five years. This policy brief will examine the most significant of these challenges and the emerging, and critically important, role of the US judiciary in responding to an unchecked Executive.