Critics of President George W. Bush have long claimed that he used the September 11 attacks to expand executive power beyond its proper constitutional bounds. The primary support often cited for this proposition is that the administration has been rebuked on these issues by the courts. Those claims, however, cannot withstand serious scrutiny. Although the president and his advisers have certainly acted assertively in many areas involving the war on terror, they have done so within the Constitution’s text and history, in accordance with past presidential practice and available judicial precedent. In fact, if there has been empire building since September 11, it has been by the U.S. courts, not by the president. This is especially true with respect to what is probably the most controversial”at least for lawyers”aspect of the Bush administration’s wartime policies: the detention, without criminal charge or trial in the civilian courts, of alleged Al Qaeda and Taliban operatives at Guantánamo Bay.
When Mohammed Atta and his compatriots boarded their scheduled flights on September 11, 2001, the rights of wartime detainees were governed by a handful of major precedents. These cases were generally marked by judicial restraint, especially with regard to foreign nationals held by the United States overseas. In crafting its original detainee policies over the fall and winter of 2001-02, and in defending them against subsequent legal challenges, the Bush administration has principally relied on two critical, if decades-old, U.S. Supreme Court decisions: 1942′s Ex Parte Quirin and 1950′s Johnson v. Eisentrager. Together, these cases, along with the laws and customs of war that the Supreme Court consulted in reaching its decisions, gave the president sufficient flexibility to detain captured enemies without a civilian trial (at least so long as hostilities continued), where appropriate to charge them either in the civilian courts or in military commissions, and otherwise to deny foreign nationals held outside of the territorial U.S. the opportunity to challenge their detention in the federal courts. In other words, President Bush did not expand executive power to deal with detainees because he had no need to do so. History and precedent supplied him with all the power he needed.
