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Here are two books in defense of, and two critical of, the Bush Administration’s expansion of executive power from 9/11/01 through 2008.
Not a Suicide Pact: The Constitution in a Time of National Emergency
By Richard A. Posner
Oxford University Press, 2006, 208 pages
$23.96 hardcover, $9.99 Kindle
Posner, a judge on the U.S. Court of Appeals, argues that in the face of terrorism, national security concerns become paramount, and the scope of constitutional rights and liberties must be narrowed. He says brutal forms of interrogation should be allowed in certain circumstances, and that all communications within the USA should be subject to interception and examination. Posner advocates expanding the power of the executive branch even in undeclared wars (like all of the wars we’ve fought since WWII).
Law and the Long War: The Future of Justice in the Age of Terror
By Benjamin Wittes
Penguin, 2009, 320 pages
$13.50 paperback, $9.99 Kindle
Legal affairs columnist and Brookings Institution fellow Wittes supports the expansion of executive power in the Bush-Cheney administration, and applauds many of its security measures, but argues that the “legal architecture” now in place is inadequate for a protracted war on terror. What we need now is broad legislation for addressing the civil liberties and human rights issues that arise in response to aggressive counterterrorism efforts. The legal foundation for domestic surveillance, extraordinary rendition, and torture of detainees is “cobbled together out of outdated and ill-fitting materials, and its flaws are glaring” (Booklist review). Wittes critizes the U.S. Supreme Court for interfering in foreign policy since 9/11/01 (e.g., attempting to extend its jurisdiction over detainees).
Power Play: The Bush Presidency and the Constitution
By James P. Pfiffner
Brookings Institution, 2008, 299 pages
$22.00 hardcover, $9.99 Kindle
The Bush-Cheney administration denied the writ of habeas corpus to individuals deemed to be enemy combatants. It suspended the Geneva Convention and allowed or encouraged the use of harsh interrogation methods amounting to torture. It ordered the surveillance of Americans without obtaining warrants as required by law. And it issued signing statements declaring that the president does not have the duty to faithfully execute hundreds of provisions in the laws he has signed. “Pfiffner builds a powerful case pointing toward one unmistakable conclusion: since 9/11, the claims and actions of the Bush administration [undermined] constitutional principles and rule of law,” wrote Hugh Heclo, professor of public affairs at George Mason University.
Bush, the Detainees, and the Constitution: The Battle over Presidential Power in the War on Terror
By Howard Ball
University Press of Kansas, 2007, 275 pages
$26.56 hardcover
Ball examines the enemy combatants cases of 2004 and 2006, including Rasul v. Bush, Hamdi v. Bush, Rumsfeld v. Padilla, and Hamdan v. Rumsfeld. He summarizes competing legal arguments pitting the detainees’ fundamental human rights (including habeas corpus) against Bush’s proclamation that he alone has the authority to decide their fate, as well as efforts by the Court and Congress to reclaim their own authority in such matters. Ball also analyzes the two Congressional Authorizations for the Use of Military Force, the Patriot Act, and the NSA’s warrantless wiretapping program; and describes how the administration found ways to evade both the letter and spirit of the Supreme Court’s decisions through new legislation, presidential signing statements, and redefinition of the status of the detainees. “President Bush’s treatment of enemy combatants in the ‘war on terror’ is the most important constitutional story of our time, and Howard Ball tells it with a deft sense for detail, an impressive field of vision, and a sharply critical eye,” wrote David Cole, author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism.