Checks & Balances
Following the 9/11 attacks, the Bush administration claimed nearly unfettered power for the office of the presidency. It declared that, as Commander in Chief, the president is empowered to take whatever measures he deems necessary to promote the nation’s security. It intentionally evaded judicial review of its actions and contravened duly enacted legislation. Such unilateral exercise of power undermined our constitutional system of checks and balances.
While the Obama administration has not asserted powers as far-reaching as those of its predecessor, it also has not entirely disavowed the legacy of executive power that it inherited.
The Brennan Center continues to fight to restore checks and balances as a defining feature of America’s constitutional scheme. In May 2009, the Project published Executive Privilege: a Legislative Remedy, which proposed a statutory scheme designed to rationalize the resolution of executive privilege disputes between Congress and the President. In 2008, former Liberty & National Security Program Director Aziz Huq published Twelve Steps to Restore Checks & Balances, which offered a path forward to protect essential liberties while effectively guarding against the threat of terrorism. In the previous year, Mr. Huq and Senior Counsel Fritz Schwarz published Unchecked and Unbalanced: Presidential Power in a Time of Terror, making 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 entitled “Building Freedom, Building Security,” bringing together America’s premier national security experts for a dynamic conversation about how to fight terrorism while abiding by our traditions of justice and decency.
Amnesty Int’l v. Clapper (Amicus Brief)
The Second Circuit Court of Appeals ruled that plaintiff's have standing to challenge the constitutionality of the FISA Amendments Act. In December of 2008 and 2009, the Brennan Center for Justice filed supplemental amici in the case, urging the court to overturn the law.
Committee on the Judiciary v. Harriet Miers (Amicus Brief)
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
The U.S. Detention System Since 9/11: A Conversation
As we approach the tenth anniversary of 9/11, Brennan Center counsel Emily Berman and Seton Hall Law Professor Jonathan Hafetz discuss the President’s detention policy, the Bagram prison in Afghanistan, and the future of habeas corpus. This is the final installment in a three-part series.
The U.S. Detention System Since 9/11: A Conversation
As we approach the tenth anniversary of 9/11, we discuss the President's detention policy, the Warsame case, and whether we can hold the government accountable for deprivations of liberty. This is the second installment in a three-part series.
Congress once again extended expiring provisions of the Patriot Act with very little debate. The American people deserve to hear a real debate about what government surveillance programs are really doing in their name. Only then can we make an informed, responsible decision about whether the claimed security benefits of those programs justify their costs.
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
Letter to AG Holder Regarding Terrorist Suspects and the Miranda Warning
We urge Attorney General Holder to reconsider his call for Congressional action to expand the public safety exception to the use of the Miranda Warning.
Frederick Schwarz’ Testimony before the House Subcommittee on Intelligence Community Management
On principles that should govern “The Laws on Congressional Notification of Intelligence Activities,” and the harms caused by insufficient Congressional oversight.
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 deficiencies 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.
Patriot Act Video from the Bill of Rights Defense Committee
The Brennan Center's Emily Berman participated in an online video from the Bill of Rights Defense Committee titled, "The unPATRIOTic Act & COINTELPRO 2.0."
Emily Berman Discusses the PATRIOT Act in New Podcast
Emily Berman participated in the most recent installment of the There Is No Spoon podcast series, which examined civil rights and civil liberties issues raised by the PATRIOT Act and FBI stings authorized under the 2008 Attorney Generals’ Guidelines issued by then Attorney General Michael Mukasey.
Secrecy, Fear, and the National Security State: A lecture on American democracy
Fritz Schwarz delivered a lecture entitled "The National Security State and Other Dangers to Democracy" on November 11, 2010, at the John F. Kennedy Institute for North American Studies at the Free University of Berlin.
"Crisis and its cousin fear always make it tempting to ignore the wise restraints that keep us free. That is not new. But America has been living in an atmosphere of crisis for an unusally long time."