American anti-terrorism laws are insufficient to address the next wave of global terrorism. When President Bush declared that the United States had begun a “war on terror,” the entire government began to reorient itself to tackle America’s newest “generational challenge.” The Department of Justice (DOJ) joined this massive effort, declaring in a new Strategic Plan that its focus was not simply to prosecute terrorists for crimes, but to “[p]revent, disrupt, and defeat terrorist operations before they occur.” Despite its constant talk of reorientation, however, DOJ has been limited in its ability to creatively address the war on terror for one simple reason: many of the relevant federal criminal statutes are poorly constructed. Prior to September 1994, there were no federal criminal prohibitions that specifically punished material support for terrorism. Prosecutors had to rely instead on generic federal crimes, such as murder and money laundering, or on a variety of statutes condemning specific acts of terrorism, such as air piracy or hostage taking. After the 1993 terrorist bombing of the World Trade Center, this situation rapidly changed. Legislators hastily drafted a number of statutes and amendments that sought to address the domestic terrorist threat. Acting in response to public demand for quick, decisive action, Congress generally maximized the scope of anti-terror prohibitions while overriding any legal obstacles to quick prosecution that were presented by the judiciary.
Tag: Separation of Powers
Foreign Affairs and Separation of Powers in the Twenty-First Century
John Yoo is nothing if not controversial. During his tenure at the Department of Justice’s Office of Legal Counsel (OLC), he became widely known for, among other things, drafting the Administration’s legal justification for the use of aggressive interrogation techniques.1 His prior academic writing also frequently staked out bold positions supporting expansive interpretations of executive power in the realm of foreign affairs. Yoo’s recent book, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11, amplifies many of the themes of his earlier work in academia. In it, he addresses two fundamental aspects of foreign policy making, the war power and the treaty power, each of which he analyzes from a decidedly revisionist perspective.
Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power
The system of detention and military trial authorized by President George W. Bush on November 13, 2001, and additional claimed authority to hold terrorist suspects indefinitely without process, have been litigated in several judicial circuits, moving from district courts to the Supreme Court and back down again. In 2006, these authorities returned to the Court for further exploration in Hamdan v. Rumsfeld. Regrettably, until very recently the separation of powers issues raised by the President’s initiatives received little attention from Congress, which, under the Constitution, has primary responsibility over military courts, tribunals “inferior to the supreme Court,” “Offenses against the Law of Nations,” the war power, and “Rules concerning Captures on Land and Water.” Because of congressional passivity, the principal checks on presidential power have been supplied instead by litigants and courts. The constitutional issues that emerge from this concentration of power in the presidency form the central theme of this article.