The Constitution and 9/11

The presidential campaigns have been largely silent so far regarding the post-9/11 changes in the character of American government. But those changes, documented by constitutional scholar Louis Fisher in a new book, have been profound and far-reaching, and they remain to be addressed.

“Following the terrorist attacks of September 11, 2001, the United States abandoned many of its rights and privileges for the accused, both citizens and non-citizens,” Mr. Fisher writes.

“With political power concentrated in the President, executive branch officials met in secret to draft policies that supported the arrest and detention of suspected terrorists. They saw no need to make specific charges, provide counsel, or allow the accused an opportunity to examine evidence.”

“Military commissions became a substitute for civil courts and courts-martial. Suspects were flown to foreign prisons for interrogation and torture. Some of the administration initiatives violated existing statutes and treaties. Once again in America, emergency powers were invoked to disregard individual rights and weaken national security,” writes Mr. Fisher, a specialist in separation of powers at the Law Library of Congress.

For those who have not been paying attention, Mr. Fisher recounts the major departures from legal norms that have unfolded in recent years, with chapters on Guantanamo, domestic surveillance, military tribunals and state secrets. And for those who have been paying attention, the book adds a new dimension of historical understanding, tracing the precursors to current policies and their eventual repudiation. (I contributed a blurb for the book jacket.)

See “The Constitution and 9/11: Recurring Threats to America’s Freedoms” by Louis Fisher, University of Kansas Press, 2008.