Checks & Balances

In recent years, the Bush administration has sought almost unlimited power for the office of the presidency. The administration has declared that, in the role of Commander in Chief, the president is empowered to act preemptively in practically any manner he and his advisors deem necessary. The administration thus abandoned the standard processes of our checks and balances system.   

The Brennan Center is fighting to restore checks and balances as a defining feature of America’s constitutional scheme. In March 2007, Senior Counsel Fritz Schwarz and Liberty & National Security Director Aziz Huq published Unchecked and Unbalanced: Presidential Power in a Time of Terror (New Press, 2007), which makes the case that the system of checks and balances is necessary for preserving essential liberties and for forming wise policy. We also co-sponsored a nationwide conference in September 2007 entitled “Building Freedom, Building Security,” which brought together America’s premier national security experts for a dynamic conversation about what the country can do to fight terrorism while abiding by its traditions of justice and decency. We will be publishing a collection of the resulting essays in 2008.

    Kiyemba v. Obama

    The Center and three other organizations submitted an amicus brief on October 31, 2008, urging the D.C. Circuit Court of Appeals to affirm the D.C. District Court’s decision to release 17 Uighurs currently detained unlawfully at Guantánamo Bay into the U.S.

    In Re NSA Telecommunications Records Litiagation

    The Center submitted an amicus on October 24, 2008, in support of the plaintiffs’ opposition to the government’s motion to dismiss..

    Committee on the Judiciary v. Harriet Miers

    The Brennan Center filed an amici brief asking the D.C. District Court to allow Congress to proceed with its efforts to enforce the subpoenas issued against Joshua Bolten and Harriet Miers in the executive privilege case related to the contentious 2006 firing of nine U.S. Attorneys

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    Liza Goitein

    Grading the Obama Administration

    Government transparency is vital to a free and well-functioning democracy, and it is particularly so in the area of national security....

    Ari Melber

    Obama’s State Secrets Claims Face Mounting Opposition from Courts, Advocates

    President Barack Obama has drawn praise, but his use of the “state secrets” privilege to squash lawsuits on torture and surveillance is drawing mounting opposition....

    Liza Goitein

    Torture, Truth and Accountability

    Yesterday, President Obama signaled his willingness to consider an independent, non-partisan commission....

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    Illustrations by Risko

    Executive Privilege System Broken, Report Finds

    Center proposes new legislation to resolve executive privilege disputes.

    On Transparency, Obama Succeeds and Disappoints in First 100 Days

    Detailed 30-Page Report Card reveals Obama’s need to improve accountability in cases of government misconduct.

    DOJ Releases Four OLC Memos on Torture Techniques

    Brennan Center holds the view that while the memos’ release is a significant victory for transparency, the actual content of the memos is chilling and highlights the urgent need for a commission of inquiry

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    Investigating Violations of the Rule of Law in Counter-Terrorism Policy

    Proposal for an independent commission to investigate any violations.

    Emily Berman’s Statement for the Record for Hearing on Torture and the Office of Legal Counsel

    Emily Berman submitted a Statement for the Record regarding the most troubling legal deficiences in the three May 2005 memoranda issued by the Justice Department’s Office of Legal Counsel to the Senate Judiciary Subcommittee on Administrative Oversight and the Courts.

    Frederick A.O. Schwarz Jr. Before Hearing on “Truth Commission”

    Testimony in support of a nonpartisan, independent commission of inquiry. Delivered before Senator Leahy’s hearing, “Getting to the Truth Through a Nonpartisan Commission of Inquiry”

    More Legislation & Testimony

    So Many Secrets

    Essay in the New Republic explores if Pres. Obama will change his heart on a key rule-of-law issue.

    Transparency in the First 100 Days: A Report Card

    Detailed 30-Page report card reveals Obama’s need to improve accountability in cases of government misconduct. 

    Transparency in the First 100 Days | Secret Law

    Detailed 30-Page report card reveals Obama’s need to improve accountability in cases of government misconduct. This page offers detailed analysis and recommendations.

    More Analysis & Commentary