Abstract
President G. W. Bush faced the worst American attack in the history of the USA. The attacks of September 11, 2001 were clearly a watershed moment in American history. Similar to the barbaric invasion of Rome, led by Hannibal, the USA would never be the same after the infamous day of September 11, 2001. In this chapter, I examine President G. W. Bush’s response to the attacks and determine whether he supported an implied theory of executive emergency power. I find through thorough research of classified documents that President Bush did invoke a theory of implied executive emergency power and used his own prerogative to determine what powers to use and when to use such powers in waging America’s War on Terror.
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Notes
Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2008). By reviewing the history of the republic and its corresponding theory, we find that modern interpretations have become more “extreme”; hence, previous presidents adopted a more nuanced interpretation.
Alexander Hamilton, Federalist No. 70, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, 354–62 (New York: Bantam Press, 1982).
See especially John C. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, U.S. Department of Justice, Office of Legal Counsel.
Max Farrand, ed. The Records of the Federal Convention of 1787 (New Haven, CT: Yale University Press, 1911), vol. 2, 537.
All of Hamilton’s claims are drawn from Federalist No. 70. For an Anti-Federalist response, see George Clinton, Anti-Federalist No. 69, in Herbert J. Storing, and Murray Dry, The Complete Anti-Federalist, 115–17 (Chicago: University of Chicago Press, 1981).
Edwin Meese, With Reagan: The Inside Story (Washington, DC: Regnery Gateway, 1992); and J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001.
Michael Herz, “Imposing Unified Executive Branch Statutory Interpretation,” Cardozo Law Review vol. 15, no. 1–2 (October 1993): 219–72, 252–53.
Elena Kagan, “Presidential Administration,” Harvard Law Review vol. 114, no. 8 (June 2001): 2245–385, 2327.
Thomas Cronin, “An Imperiled Presidency,” in The Post-Imperial Presidency, edited by Vincent Davis (New Brunswick, NJ: Transaction Books: 1980), 137–39.
Christopher Kelley, Executing the Constitution: Putting the President Back into the Constitution (Albany: State University of New York Press, 2006), 45–46.
John Gattuso, Washington D.C.: Know the City Like a Native (Singapore: APA Publications, 2008).
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J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 5.
John Yoo, Crisis and Command: The History of Executive Power from George Washington to George W. Bush (New York: Kaplan, 2009), ch. 1.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 6.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 7.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 9.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 7.
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Jay S. Bybee, Memorandum Re: the President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations, March 13, 2002, U.S. Department of Justice.
See Louis Fisher, Presidential War Power, 2nd ed. (Lawrence: University Press of Kansas, 1995)
Garry Wills, Bomb Power: The Modern Presidency and the National Security State (New York: Penguin Press, 2010).
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001.
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Howard Ball, The U.S.A Patriot Act of 2001: Balancing Civil Liberties and National Security: A Reference Handbook (Santa Barbara, CA: ABC-CLIO, 2004).
Fred Barbash, “Justices Reject Appeal Over the Secret 9–11 Detainees,” Washington Post, January 12, 2004.
Timothy Lynch, Breaking the Vicious Cycle: Preserving Our Liberties while Fighting Terrorism (Washington, DC: CATO Institute, June 26, 2002), Policy Analysis 443.
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Kate Martin, “Legal Detainment?,” Center for National Security Studies, 2004, in SAIS Review vol. 29, no. 1 (Winter–Spring 2004), 6–7.
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John Mayer, “Outsourcing Torture: The Secret History of America’s Extraordinary Rendition Program,” New Yorker, February 14, 2005.
Phillip J. Cooper, “George W. Bush, Edgar Allen Poe, and the Use and Abuse of Presidential Signing Statements,” Presidential Studies Quarterly vol. 35, no. 3 (September 2005): 515–32, 517.
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J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 6.
Curtis A. Bradley, Eric A. Posner, “Presidential Signing Statements and Executive Power,” Constitutional Commentary 23 (2006), 307, 323.
George W. Bush, Statement upon Signing the Syria Accountability and Lebanese Sovereignty Restoration Act of 2003, December 12, 2003.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 4–7.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001, 13.
J. Yoo, Memorandum Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States, October 23, 2001.
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© 2015 Justin DePlato
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DePlato, J. (2015). President G. W. Bush and the Hyper-unitary Approach to Waging the War on Terror. In: American Presidential Power and the War on Terror: Does the Constitution Matter?. Palgrave Pivot, New York. https://doi.org/10.1057/9781137539625_3
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DOI: https://doi.org/10.1057/9781137539625_3
Publisher Name: Palgrave Pivot, New York
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