By Alliance Member Jana Ramsey
I was alarmed, but not surprised, to see New York Times reporting that White House advisor Stephen Miller has proposed suspending the right of habeas corpus for undocumented immigrants and invoking the Insurrection Act to deploy the military against civilians inside the U.S. Despite initial legal pushback within the White House, the Times noted that these ideas remain a “loaded weapon in a West Wing eager to test the limits of presidential power.” As a former lawyer for Guantánamo detainees, the arguments for radical expansion of presidential power sound very familiar—and must be countered.
Executive Overreach in the Post-9/11 Era
In the wake of September 11th, a small group of Bush Administration officials—including Vice President Dick Cheney—asserted that the president enjoys virtually limitless authority to capture, detain, and interrogate people in the name of national security. Other officials who pushed back on these ideas found themselves marginalized or excluded from decision-making. Emboldened by hawkish advisors, the Administration imprisoned and tortured hundreds of men in Guantánamo and at “black sites” abroad. Initially, there was little public resistance to an aggressive counterterrorism response: the horrific nature of the September 11th attacks and the genuine risks posed by al Qaeda made protecting civil liberties unpopular.
But there was a different Supreme Court in place then: one that rejected claims of unfettered executive powers and affirmed the right of Guantánamo detainees to challenge their detention. As cases proceeded and reporting on detainees expanded, it became clear that the detainee population included many innocent people with no ties to terrorism, including those turned over for bounties, elderly men with dementia, and at least 15 children. Among other disclosures, a leaked memo on torture and photos of detainees abused at Abu Ghraib further darkened the American public’s perception of its government’s detention operations.
Attempts at Accountability for Torture and Detention Abuse
When President Obama entered office, he reinstated the ban on torture and prohibited the use of secret detention facilities. In a bid for transparency, Attorney General Eric Holder formally released four opinions issued by the Office of Legal Counsel (OLC) in 2009 regarding enhanced interrogation techniques. In December 2014, the Senate Intelligence Committee released its redacted report on the CIA’s detention operations and use of torture.
Despite these welcome steps, accountability was elusive. For example, while disavowing the OLC’s memos, Holder pledged that intelligence community officials who previously relied on them would not be prosecuted, and guaranteed that the U.S. government would indemnify employees for judgments against them. In 2012, Holder also closed the limited investigation into CIA mistreatment of detainees, which had begun just a few years earlier.
Few attempts at accountability were successful—like the handful of soldiers punished for their role in Abu Ghraib, or the small number of petitioners who successfully sued the military contractor running the prison. Still, the senior officials most responsible for the excesses of the 9/11 response—including those who drafted the memos authorizing torture and other abuses—were never held accountable, formally or informally, and now hold prestigious positions in academia, the private sector, and the federal judiciary.
With no senior leaders paying any costs for their role in authorizing or engaging in torture, the message to future Administrations was clear: taking actions that might later prove unconstitutional or illegal is worth the risk if they advance short-term political objectives.
Accountability Now and in the Post-Trump Era
Moreover, several recent major judicial decisions have now given the executive much of the power that Vice President Cheney and his allies had argued for. In Trump v. Slaughter, the Supreme Court fully embraced Cheney’s unitary executive theory, holding that the Constitution vests all executive authority in the President, who can fire any subordinates he or she wants—even those officials who have historically operated independently. Coupled with the Supreme Court’s ruling expanding presidential immunity in Trump v. United States, the executive now possesses tremendous powers to act with impunity—a power that should worry all Americans.
The Trump Administration’s anti-immigration policies demonstrate the frightening extent of this power. Immigration raids have swelled detention facilities, and horror stories of deaths in custody, children in detention, and people killed in protests cover front-page news. The Administration has taken unprecedented actions by removing immigrants to countries where they have no ties, including to war-torn South Sudan, or to El Salvador, where detainees have been held at the notorious CECOT prison. The Administration is also flexing its newly sanctioned powers in alarming ways in other areas, such as war powers and election oversight.
What can be done?
Imagining what accountability could entail in a post-Trump era—trials, a truth commission, Supreme Court reform, Constitutional amendments, or other legal reforms (including how state and local actors might play a role in these efforts)—requires creative thinking, especially in the face of Congress and the Supreme Court’s failures to date to limit this Administration’s powers. But voters will soon have their say: midterms are just around the corner, and the presidential election is only two years away. We need to build the political will now to demand future accountability, particularly for those most responsible for undermining the Rule of Law.
Holding those in power to account for their past misdeeds will not be easy, as is clear from the “war on terror” era. Efforts to hold President Trump accountable following his electoral loss in 2020 were successfully stymied, and may even have contributed to his reelection to the Presidency. Given political divisions in our country, politicians may be tempted to call for turning the page on the past. But justice is a precondition for domestic harmony—not an obstacle. Without diminishing the challenges ahead, there are numerous examples of societies that have confronted their past and rebuilt the Rule of Law even after unthinkable crimes—from South Africa to Colombia, Chile to Sierra Leone, and many countries in between.. Those who value the Rule of Law and the health of our republic should demand nothing less in our own country.
In the immediate term, we must vigorously challenge the misuse of presidential authority where we can, including in the courts. But American citizens are still the ultimate defenders of democratic values. We must use our voices now to condemn abuses and call for justice. And we must choose leaders at the ballot box who will help us embark on the slow and painstaking accountability processes this country requires to move forward, remaining ever vigilant about the threats to the Rule of Law that can arise when impunity is allowed to flourish.
ABOUT THE AUTHOR: Jana Ramsey is an attorney and foreign policy expert who most recently served as a Senior Policy Advisor in the State Department’s Office of Global Criminal Justice where she worked to advance U.S. policy on justice and accountability in the wake of mass atrocities. She has also previously worked for the United Nations in eastern Congo and as a litigator at Paul, Weiss, Rifkind, Wharton & Garrison.
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