Civil Liberties Issues
- Checks and Balances
- Domestic Surveillance: National Security Agency 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
- Privacy/Freedom from Unreasonable Searches and Seizures
- Open Government/Freedom of Information
- Real Democracy: Corporations and the Bill of Rights
- Torture
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."
- Michael Ratner, President of the Center for Constitutional Rights, describing military commissions in Guantanamo: What the World Should Know
The U.S. 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 U.S. government policy since September 11th, 2001, has been a decrease in checks and balances.
Federal government policy has limited the proper role of the judicial branch. For instance, the President’s Military Order 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 the government always had a means to obtain personal records, the increased role of the FISA court is incredibly important. 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 our proper system of separation of powers. Additionally, the threshold for obtaining such records is significantly lower in the FISA Court, thus the oversight role of the court is lessened.
Similarly, there has been a decrease in Congressional oversight procedures. While the legislative branch is supposed to write the law according to Article I of the Constitution, the USA PATRIOT Act can hardly be called a product of Congress. It was written by top Bush Administration advisors and was passed in Congress without debate and deliberation. Many members of Congress have admitted to not reading the Act before voting on it.
Moreover, the President has used limited Congressional authority to act with broad discretion. For instance, 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. The President has interrupted that resolution as Congressional authorization for the indefinite detention of enemy combatants, such as Jose Padilla and Yaser Hamdi, who, at least as far as the public knows, had nothing to do with September 11th. Some of these enemy combatants are American citizens.
All of this equates to a seemingly absolute power of the Executive to make decisions that greatly impact the civil rights and liberties of persons in the United States.