The Law: The Impact of Antiterrorism Policies on Separation of Powers: Assessing John Ashcroft's Role

One predictable outcome of the tragic events of September 11, 2001, has been the expansion of presidential power. Political scientists have long noted how national crises serve to centralize power in the White House, and this moment in the nation's history is no different. From the start, the administration of George W. Bush sought to "restore" presidential prerogatives that it believed had been eroded during the Reagan, George H. W. Bush, and Clinton administrations, particularly in relations with Congress (Blum 2002; Milbank 2001). Success in this regard had been unlikely, given the contested nature of the 2000 election and his predecessor's inability to successfully assert privilege claims. The tragedy of September 11, however, provided both the rationale and public support needed to support assertions of broad unilateral authority. As Mayer and Price (2002, 380) note, "Presidential power turns not just on the executive's persuasive capacities but on the constitutional and statutory sources of unilateral authority on which any president might draw." In asserting both of these sources of unilateral authority, U.S. Attorney General John Ashcroft has been key in crafting and promoting the administration's response in a way that enhances the president's domestic power. Many of Ashcroft's high-profile actions--such as the secret detention of foreign nationals following the terrorist attacks (Oliphant 2001; Goldstein 2001), the new rule permitting eavesdropping of conversations between attorneys and certain clients in federal detention (Bureau of Prisons 2001), and his support of military tribunals (Resnick 2002; Blum 2001)--have garnered much attention for their potential impact on civil liberties. Less attention has been paid to the potential impact of these and other actions on the constitutional system of divided and overlapping powers. This study will offer an early examination of the administration's domestic response to the terrorist threat, specifically focusing on the actions of the U.S. attorney general, to seek to clarify what impact the post-9/11 antiterrorism actions have had on the separation of powers. Theory of Divided Powers Many U.S. citizens consider it axiomatic that divided power is the bulwark of American liberty. "That all lawful power derives from the people and must be held in check to preserve their freedom is the oldest and most central tenet of American constitutionalism," according to constitutional scholar Laurence Tribe (2000, 6). Power is divided both horizontally between branches and vertically between levels. But what does a system of divided powers require in the current context of a war against a nonstate enemy? For all of their references to tyranny, the Constitution's framers did not want weak and ineffectual government. They saw a division of power not simply as a check on its arbitrary and abusive exercise but as a source of greater government efficiency (Fisher 1997; Gwyn 1964). However, this did not mean a system of strict functional segregation and independence. Instead, the system they adopted institutionalizes the interdependence of the branches and levels of government, with powers shared more than separated (Tribe 2000; Fisher 1997; Gwyn 1989). The doctrine of separation of powers has become particularly salient since September 11, 2001. Both Congress and the president have made reference to the doctrine, either directly or indirectly. For example, Democratic Senator Patrick Leahy, chair of the Judiciary Committee, described the administration's plan to monitor some attorney-client conversations as "what appears to be an executive effort to exercise new powers without judicial scrutiny or statutory authorization" (Reuters 2001b). The executive branch, for its part, has characterized certain judicial and congressional actions as assaults on its core executive powers (see, for example, Bush 2001 a). …