Separation of Powers and the War on Terror; an Analysis of the Role of its Institution

42 B. L. J. , pp. 27-47, 2010

22 Pages Posted: 13 Sep 2013

Date Written: March 10, 2010

Abstract

The terrorist attack of September 11th has challenged the American constitutional order; thousands lost their lives while the attacks had a profound impact on the economy. Citing Newton's third law of reciprocal actions, "every action provokes a reaction," the terrorist attacks provoke the activation of the state of emergency. Therefore, the main priority of the governance in a state of emergency is to avoid irreversible results, and to return to order as soon as possible.

In this article, I argue that the concentration of powers in the executive branch does not mean that the other parts of the government, the legislative and the judiciary, have no role. On the contrary, the role that each branch plays is consistent with its constitutional competence. The legislative branch gives the authority to the executive to act, or in other words to execute the mission at stake, and the judiciary branch has the role to consider the extent of this authority, to set scope limits and time limits.

Finally, I consider that the "state of emergency" separation of powers does have casualties, and side effects. Nevertheless, I argue that the elimination of "casualties" depends on the contribution of each branch, whether they successfully accomplished their role.

Keywords: state of emergency, separation of powers, business as usual model

Suggested Citation

Kouroutakis, Antonios E., Separation of Powers and the War on Terror; an Analysis of the Role of its Institution (March 10, 2010). 42 B. L. J. , pp. 27-47, 2010, Available at SSRN: https://ssrn.com/abstract=2325038

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