While the nation has been commemorating the 9/11 attacks, today marks the fifth anniversary of another significant - yet largely overlooked - event in the fight against terrorists.
Five years ago today, Congress authorized the president to attack Afghanistan and use force against any other "nations, organizations or persons" involved in the 9/11 attacks. The vast majority of Americans supported the ensuing war to depose the Taliban in Afghanistan and decimate the al-Qaida network. Then the Bush administration went much further. It invoked that Sept. 18, 2001, authorization as the legal basis for several radical actions that Congress did not authorize, some of which are flatly illegal under U.S. law.
As Shayana Kadidal and I explain in an op-ed in today's Baltimore Sun, Not a blank check, one of the first and most disturbing abuses occurred in August 2002, when White House attorneys said the Sept. 18 authorization allowed the president to invade Iraq without any other congressional approval. Congress went on to provide specific authorization for the Iraq war, of course, but the administration has not backed down from its position. In fact, during Senate testimony last October, Secretary of State Condoleezza Rice cited the Sept. 18 authorization as sufficient grounds to invade another country: Syria.
In court, the administration has argued that the Sept. 18 authorization gives the president the enormous power to indefinitely detain American citizens without charges. (The case, Hamdi v. Rumsfeld, was ultimately resolved without fully addressing the claim.) President Bush has defended two other wartime programs recently rebuffed by federal courts - warrantless domestic spying and military tribunals for Guantanamo detainees - as similarly sanctioned by the authorization.
Yet, in every one of these instances, the administration's argument is contradicted by the facts and the plain language of Congress. The Sept. 18 authorization does not mention Iraq, Syria, detention or spying, let alone authorize additional wars or government programs. Congress has not repealed any of the federal laws against warrantless spying; the notion that the Sept. 18 authorization magically did so without mentioning the issue is absurd. Congress does not "hide elephants in mouseholes," as Justice Antonin Scalia once observed. And in the key case of Iraq, even members of Congress who strongly supported the war never agreed it could begin without specific, legitimate authorization.
The Supreme Court weighed in on the issue in June, rejecting the administration's claim that the Sept. 18 authorization allowed the president to unilaterally create rigged trials for Guantanamo detainees. The court found that while the authorization "activated the president's war powers," it did not enable him to make up his own laws.
Ultimately, the struggle over the Sept. 18 authorization - and how the U.S. fights terrorists in general - is a battle between competing visions of American democracy. The Constitution establishes the courts as a check on power and Congress as a means to oversee, restrain and improve executive conduct. In a radical departure, Mr. Bush rejects that American tradition. He primarily sees Congress and the courts as a barrier to effective national security. (The administration's 2005 report on National Defense Strategy even predicts American "judicial processes" will become a weapon of choice for our enemies.)
Yet recent history in the fight against terrorists demonstrates the opposite. The vulnerabilities exploited by the 9/11 hijackers came to light only when a congressionally mandated commission scrutinized the executive branch. The Abu Ghraib trials are supposed to advance accountability, legitimacy and order in the military. And recent congressional investigations helped expose the faulty intelligence on weapons of mass destruction and the waste and graft in defense spending. (And today the Senate is holding hearings on war profiteering in Iraq.)
Five years after Congress authorized force to destroy the perpetrators of 9/11, Osama bin Laden and other al-Qaida leaders remain at large. It is a tragic irony that President Bush spent years embellishing the Sept. 18 authorization to cover new targets and illegal actions, yet failed to catch the enemy the authorization was meant to destroy.
In public and in court, the administration still claims it got a blank check on Sept. 18, 2001. But it is now clear that Congress did not write a blank check - the president forged it.
Shayana Kadidal is an attorney at the Center for Constitutional Rights, which won the 2004 Supreme Court case establishing the Guantanamo detainees' right to challenge their detention. Ari Melber served as a legislative aide in the Senate.
This post is adapted from an op-ed in the Baltimore Sun.
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