66 Pages Posted: 5 Nov 2012
Date Written: 2012
Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object to measures that sacrificed the rights of others — Arabs and Muslims, and especially Arab and Muslim foreigners — for Americans’ security.
Yet perhaps the most important and surprising lesson of the past decade is that constitutional and human rights, which seemed so vulnerable in the attacks’ aftermath, proved far more resilient than many would have predicted. President George W. Bush’s administration initially chafed at the constraints of constitutional, statutory, and international law, which it treated as inconvenient obstacles on the path to security. The administration acted as if no one would dare to — or could effectively — check it. But in time, the executive branch of the most powerful nation in the world was compelled to adapt its response to legal demands.
Equally surprising is that these restraints for the most part were imposed not by the formal mechanisms of checks and balances, but by more informal influences, often sparked by efforts of civil society organizations that advocated, educated, organized, demonstrated, and litigated for constitutional and human rights. The American constitutional system is traditionally understood to rely on the separation of powers and judicial review to protect liberty and impose legal restrictions on government officials. After September 11, however, as in other periods of crisis in American history, all three branches were often compromised in their commitments to liberty, equality, dignity, fair process, and the “rule of law.” By contrast, civil society groups dedicated to constitutional and rule-of-law values, such as the American Civil Liberties Union, the Center for Constitutional Rights, the American Bar Association, Human Rights Watch, Human Rights First, the Bill of Rights Defense Committee, the Constitution Project, the Muslim Public Affairs Council, and the Council on American Islamic Relations, consistently defended constitutional and human rights — and in so doing reinforced the checking function of constitutional and international law. They issued reports identifying and condemning lawless ventures; provided material and sources to the media to help spread the word; filed lawsuits in domestic and international fora challenging allegedly illegal initiatives; organized and educated the public about the importance of adhering to constitutional and human rights commitments; testified in Congressional hearings on torture, illegal surveillance, and Guantánamo; and coordinated with foreign governments and international nongovernmental organizations to bring diplomatic pressure to bear on the United States to conform its actions to constitutional and international law.
Scholars have long focused on the role constitutions and the formal structures of government that they create play in reinforcing commitments to long-term principles when ordinary political forces are inclined to seek shortcuts. The United States’ experience during the decade following September 11 suggests that this focus is incomplete; we should pay at least as much attention to the work civil society groups do to “enforce” constitutional rights. Much like a constitution itself, such groups stand for, and can shore up, commitments to principle when those commitments are most tested. And while we often speak metaphorically about a “living Constitution,” civil society groups are actually living embodiments of these commitments, comprised of human beings who have joined together out of a shared, lived dedication to constitutional and human rights principles. As such, they are well positioned to influence the polity’s and the government’s reactions in real time, and in crisis periods may be the only institutional counterforce to the impulse to sacrifice rights for security.
In this article, I argue that a more robust understanding of how constitutions work must take into account what I call “civil society constitutionalism,” in which nongovernmental organizations advocate in multiple ways for adherence to the rule of law, in court and out, and in so doing, do much of the “work” of constitutionalism. That role is particularly important in periods of crisis, when neither the formal separation of powers nor the public at large are likely to perform much of a checking function. I argue that the Bush administration was compelled to curtail nearly all of its most aggressive initiatives, and not because a court ordered him to do so, Congress required him to do so, or the American public demanded such change. In the final section, I suggest that the role that civil society organizations committed to constitutional and human rights played in this period has lessons for constitutional theory, constitutional doctrine, and constitutional practice.
Keywords: individual rights, liberty, constitutional rights, constitutional theory, counterterrorism, terrorism, Congress
JEL Classification: K00, K10, K19
Suggested Citation: Suggested Citation
Cole, David, Where Liberty Lies: Civil Society and Individual Rights after 9/11 (2012). Wayne Law Review, Vol. 57, pp. 1203-1267, 2012; Georgetown Public Law Research Paper No. 12-164. Available at SSRN: https://ssrn.com/abstract=2170120
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