The Steep Price of Executive Power Post 9/11: Reclaiming Our Past to Insure Our Future

By Jeffrey S. Brand and Amos N. Guiora for

Jeffery S. Brand

Jeffery S. Brand

It is no surprise that the September 11th attacks – which killed 3000 civilians, reduced the World Trade Center to molten steel, and left a gaping hole in the Pentagon – ushered in an era of relentless pursuit of suspected terrorists, including ramped up surveillance, detention and interrogation, and the use of technologically advanced weaponry

What is alarming, if not surprising, however, is the degree to which 9/11 produced U.S. counterterrorism measures that include the warrantless monitoring of hundreds of millions of phone calls, systematic use of illegal and immoral torture, and the conduct of a faceless drone offensive whose legality and morality are murky, at best.

The U.S. government’s response to the events of September 11th exposes a fundamental weakness in the state of America’s 21st century democracy: The unrestrained use of power by the Executive Branch in the name of national security, and the total absence of any semblance of the separation of powers or checks and balances that our Founding Fathers deemed critical to the survival of the Republic.

The breathtaking scope of America’s post 9/11 is well documented:

  • 2005: The New York Times reports the existence of Stellar Wind, a program in which the Bush Administration monitors millions and millions of phone calls in the United States.
  • 2012: A joint study from NYU and Stanford concludes that U.S. drone attacks are not “surgically precise” as claimed; by 2014, the Pentagon launches its own investigation, concerned that nearly one-third of drone strikes are killing innocent civilians.
  • 2014: The Senate Select Committee on Intelligence releases its study of the CIA’s detention and interrogation programs, describing in horrifying detail policies that include prisoners subjected to rectal feeding, waterboarding, hanging by their wrists, confinement in coffins, sleep-deprivation, threatened with death or brutally beaten.
  • Days after the report’s release, in a stunning editorial, the New York Times demands that the United States come to terms with “legal and moral abhorrence” by appointing a special prosecutor to investigate “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes.”

Amos Guiora

Each of these accounts is connected by a common thread – the exercise of unrestrained Executive Branch power that ignores the fundamental principle that the President and his subordinates do not have unilateral authority to surveil any call, to engage in illegal torture, or to launch attacks almost certain to kill. Each reflects policies that pursue national security while ignoring a fundamental truth about our democracy: Absent appropriate checks and balances, the rule of law is undermined and individual liberty is likely to be sacrificed.

Of course, this observation is hardly novel and has been reiterated constantly throughout the 240 year history of the Republic.   James Madison articulated it in the Federalist Papers: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”

Justice Kennedy wrote about it in 2004, upholding the right of habeas corpus for Guantanamo detainees: “The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.”

America’s post-9/11 response abandons this foundational principle, ceding unitary authority to the Executive Branch, despite strong evidence that its surveillance, interrogation and drone policies have been ineffective, counter-productive, lack transparency, and are devoid of specific standards or oversight for their implementation.

The policies’ inefficacy bears emphasis.   The United States has yet to present evidence that its massive collection of meta-data thwarted a significant terrorist plot. The Select Senate Committee’s report concludes that U.S. engagement in torture has been “ineffective,” and mercilessly details the lack of reliable information that so-called enhanced interrogation techniques yield, along the way painting a disturbing portrait of Abu Zubaydah being waterboarded, “blowing bubbles through his mouth” and being completely “unresponsive.”

The report also concludes that the information torture tactics did yield could have been obtained by “other means.”

Drones may hit their targets on occasion, but their efficacy must also be measured by the number of resulting civilian deaths and injuries, and by the magnitude of the unintended consequences that the drone policy has engendered, including adverse world reaction and providing invaluable marketing footage for terrorist recruitment campaigns around the globe.

The Executive Branch’s false public assurances about its surveillance, interrogation and drone policies and the total failure of any branch of government to abide by separation of powers principles also bear emphasis. With regard to the latter, the Foreign Intelligence Surveillance Court (FISC), created in 1978 as part of the Foreign Intelligence Services Act (FISA) to insure Executive Branch accountability for its surveillance activities, is Exhibit A.

The FISC’s structure abandons any pretense of judicial independence, operating as a tool of the Executive Branch, which is solely authorized to appear before it and to determine the evidence that the FISC considers. Is it any wonder that in the thirty-three years from 1979 to 2012, the FISC granted 33,942 requests for warrants and denied only eleven, a denial rate of three tenths of one percent of the total warrants requested?

Is it any wonder that the FISC is routinely characterized as a “rubber stamp” of the Executive Branch?

Similarly, the Executive Branch’s iron grip on interrogation policies is a story vividly and disturbingly told by the Senate Select Committee report.

And with respect to drones, the Executive Branch is totally unrestrained, not even bothering to justify a program begun in 2004. Only in 2013 did the Obama Administration, in a Justice Department White Paper, make bold promises about precision targeting now belied by mounting civilian casualties, while, at the same time, providing disturbingly loose definitions of what constitutes a legitimate target or an imminent threat, standards critical to nurturing the rule of law.

So what is to be done?   The ingenious scheme of the Framers of our Constitution must be reclaimed in the realm of national security.   No longer should threats to the homeland, no matter how serious, be an excuse for a power grab by the Executive Branch to determine unilaterally matters of individual liberty or who shall live and who shall die.

All three branches of government must be actively engaged, exercising their constitutional responsibilities to fashion legal, moral and effective national security policies. The Senate Select Committee’s torture report is a hopeful sign that Congress finally may be taking its oversight responsibilities seriously, despite Congress’ failure to oversee surveillance policies actively and its unwillingness to engage meaningfully the serious issues raised by Bush and Obama drone policies.

And, all but forgotten in the aftermath of 9/11 is the critical importance of an independent judiciary in the balance of power equation.  The non-adversarial FISC model must be abandoned in favor of a model that allows for appropriate judicial scrutiny of national security decisions.

Safeguards must include cross-examination to test the veracity and reliability of government claims and enforcement of specific standards before the Executive Branch is permitted to take action that infringes on liberty or targets individuals for a drone attack – a model that we have proposed in calling for the establishment of a Drone Court for the authorization of drone strikes. (

We do not suggest that the President lacks broad powers under the Constitution to protect the nation, nor do we deny the need for vigilance, including surveillance, detention, interrogation, and the use of military force, including drones, to protect the national security.

We only demand that any actions be carried out lawfully, morally and in the context of our constitutional form of democracy.

To be sure the task is not easy and the proper balance elusive.   Too often national security has trumped individual rights leading to abuses that have shocked the nation.

Those abuses have occurred despite lip-service to our constitutionally mandated framework, assurances of compliance with international law and humanitarian norms, and the formal existence of institutions intended to maintain the balance of power among the branches of government – whether it be a Congressional oversight committee or the FISC.

Those failures provide a primer for how to proceed in the future and must include a vigilant Congress, an independent judiciary, and an Executive Branch that abides the constitutional limits of its power.   All three branches of the government must engage with one another to advance the ideals of the nation.

It is said that in 1789, Benjamin Franklin was leaving the Constitutional Convention and was asked by a woman passerby: “What have you wrought?” Franklin replied: “A Republic madam, if you can keep it.”

Jeffrey S. Brand, Dean Emeritus and Professor of Law, Director Center for Law and Global Justice, University of San Francisco School of Law

Amos N. Guiora, Professor of Law, S.J. Quinney College of Law, University of Utah, Co-Director, Center for Global Justice