Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law

349 Pages·2017·1.436 MB·English

by  Ryan Alford

PERMANENT
STATE OF
EMERGENCY

P E R M A N E N T
S TAT E O F
E M E R G E N C Y
Unchecked Executive Power and the
Demise of the Rule of Law
ryan alford
McGill-Queen’s University Press
Montreal & Kingston •London •Chicago
©McGill-Queen’s University Press2017
isbn978-0-7735-4919-7(cloth)
isbn978-0-7735-4920-3(epdf)
isbn978-0-7735-4921-0(epub)
Legal deposit second quarter 2017
Bibliothèque nationale du Québec
Printed in Canada on acid-free paper that is 100% ancient forest
free (100% post-consumer recycled), processed chlorine free
This book has been published with the help of a grant from
Lakehead University.
McGill-Queen’s University Press acknowledges the support of the
Canada Council for the Arts for our publishing program. We also
acknowledge the financial support of the Government of Canada
through the Canada Book Fund for our publishing activities.
Library and Archives Canada Cataloguing in Publication
Alford, Ryan, 1975–, author
Permanent state of emergency : unchecked executive power and
the demise of the rule of law / Ryan Alford.
Includes bibliographical references and index.
Issued in print and electronic formats.
isbn978-0-7735-4919-7(cloth).
–isbn978-0-7735-4920-3(epdf).
–isbn978-0-7735-4921-0(epub)
1. War and emergency powers –United States. 2. Executive
power –United States. 3. Rule of law –United States. I. Title.
kf5060.a44 2017 342.73'062 c2017-900035-7
c2017-900036-5
For Chelsea Manning, Julian Assange,
and Edward Snowden, without whose
courage this book would not have
been possible.

Contents
Preface ix
Introduction 3
1 The Minimum Requirements of the Rule of Law 12
2 The Historical Development of the Rule of Law 30
in the United States
3 Overbroad Authority Given to and Appropriated 65
by the Executive after the 9/11 Attacks
4 The Response of the Judiciary to Executive 110
Overreaching, 2003–12
5 Judicial Selection and Executive Branch Dominance 158
6 Congress’s Failure to Exercise Oversight 200
Conclusion 240
Afterword 248
Notes 253
Index 315

Preface
Two court cases compelled me to write this book. These lawsuits brack-
eted the assassination of a US citizen on the orders of the president: the
first attempted to block the drone strike, and the second attempted to
hold the president accountable for the murder. Both failed.
Although my involvement in these suits was tangential, they affected
me profoundly. The opinions that disposed of them shook me to my core:
they asserted that because the citizen subjected to extrajudicial killing has
been designated a foreign target, the courts had no power to second-guess
the president. The executive had never argued the killing was an act of war
or that the citizen was a traitor – or even that he had been accused of a
crime. It merely asserted that its power to kill him was unreviewable. The
court agreed. The warped vision of the US Constitution it presented is
horrifying: it ignores not only the particular protections of the Bill of
Rights but the purpose of a constitution.
Counsel for the victim’s next of kin cited my research, which noted
that the Constitution’s Bill of Attainder Clause specifically barred extra-
judicial death warrants. This provision obviously applied to the executive;
the fact that it applied to the president was not even worth noting in
1787, as an absolute restriction on the executive had been established
five hundred years previously by Magna Carta. After the lawsuits chal-
lenging the assassination failed, it was clear that the executive branch had
obtained an arbitrary power over life and death that even late medieval
kings had not possessed; when it comes to decisions about whom to kill,
the president is above the law.