Civil Liberties Issues
- Checks and Balances
- Domestic Surveillance: Warrantless Wiretapping
- Domestic Surveillance: Spying on Protesters and Groups
- Due Process
- Freedom of Speech, Religion, and Assembly
- Guantánamo Bay Detention Center
- Immigrants, Refugees, and Foreign Students
- Open Government/Freedom of Information
- Privacy/Freedom from Unreasonable Searches and Seizures
- Real Democracy: Corporations and the Bill of Rights
- Second Amendment
- Torture, Inhumane and Degrading Treatment, and Rendition
Checks and Balances
"The executive has taken all the roles unto itself. The President and the Pentagon have decided that they will define the crimes, prosecute people, adjudicate guilt, and dispense punishment. This is unchecked rule by the executive branch. It dispenses entirely with our system of checks and balances."
The US Constitution establishes a system of checks and balances, designed to ensure a proper separation of powers between branches of the federal government. One significant aspect of US policy since September 11, 2001, has been a decrease in checks and balances.
Federal government policy has limited the proper role of the judicial branch. The military order issued by the president authorizing the use of military tribunals removed the federal court system from its traditional role of overseeing terrorism-related investigations. Military tribunals, including the attorneys assigned to represent defendants, are completely under the wing of the executive branch of government.
Additionally, the USA PATRIOT Act increases the use of the Foreign Intelligence Surveillance Court (the FISA Court). Requests for personal records under Section 215 of the USA PATRIOT Act go to the FISA Court as opposed to a grand jury or an Article III magistrate judge. While FISA Court members are district court judges, they are appointed to the FISA Court by the Chief Justice and have no Senate confirmation hearings on that role, thus diminishing the Constitution's intended checks and balances between branches of government. Additionally, the threshold for obtaining such records is significantly lower in the FISA Court, thus the oversight role of the court is lessened.
Moreover, President Bush used limited congressional authority to act with broad discretion. For instance, just days after the September 11 attacks, Congress passed the Authorization for Use of Military Force resolution, which empowered the president to "use all necessary and appropriate force" against "nations, organizations, or persons" that he determines "planned, authorized, committed, or aided" in the September 11, 2001, attacks. Many individuals regarded as threats have been detained and questioned in a heavily unconstitutional manner.
All of this creates a seemingly absolute unilateral power of the Executive Branch to make decisions that greatly impact the civil rights and liberties of persons in the United States. As yet, President Obama has done nothing to restore the checks and balances required by the Constitution and, in fact, has maintained some of the Bush administration's positions, such as the position on the use of the state secrets privilege to prevent court cases from moving forward.