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Uniting AmericaRestoring the Vital Center to American Democracy$
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Norton Garfinkle and Daniel Yankelovich

Print publication date: 2006

Print ISBN-13: 9780300108569

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300108569.001.0001

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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 24 September 2021

Constitutional Responsibility in the War on Terrorism

Constitutional Responsibility in the War on Terrorism

(p.155) Chapter 9 Constitutional Responsibility in the War on Terrorism
Uniting America
Michael Vatis
Yale University Press

During the first three years of the war on terrorism, Congress was silent on some of the key issues involved, allowing the Bush administration to assert almost exclusive executive authority to fight the war on its own terms. However, instances of executive encroachment on individual liberties arose, such as the detention and interrogation of individuals suspected of being “enemy combatants,” forcing the judiciary to step in. Although Congress can expressly authorize extraordinary executive powers to deal with serious threats to national security, it has not done so during the war on terrorism, partly because both political branches are controlled by one party. This chapter questions the constitutionality of some of the measures undertaken in the wake of September 11 and argues that “checks and balances” alone may not be enough to prevent the executive branch from abusing its powers. It rejects judicial activism and instead calls for a new “jurisprudence of constitutional responsibility” that allows the courts to point out where Congress has failed to fulfill its constitutional mandate to restrain the executive branch.

Keywords:   war on terrorism, Congress, detention, judiciary, national security, constitutionality, executive branch, judicial activism, jurisprudence, constitutional responsibility

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