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| 11 1 Laying the Foundation for the “War on Terror” On the morning of September 11, 2001, the United States suffered the most devastating attacks on American soil in the nation’s history. Nineteen men hijacked four commercial jet airliners and attempted to fly them into several U.S. targets. Two planes crashed into New York City’s World Trade Center, destroying both towers. A third plane hit the Pentagon. The fourth plane was diverted by the passengers and crashed in a field in Pennsylvania. Nearly three thousand people died in the attacks, and the United States suffered untold trauma and billions of dollars in damages. Within days, responsibility had been attributed to al Qaeda and its leader, Osama bin Laden.1 Al Qaeda’s ability to orchestrate a complicated attack within the United States shocked the country and seared into its collective conscience the fact that the oceans separating it from the rest of the world would not protect it from those who sought its destruction.2 Vice President Dick Cheney declared that “9/11 changed everything.”3 But it was the decisions made after that fateful day that had the most far-reaching consequences. On September 18, President George W. Bush signed into law the Authorization for Use of Military Force (AUMF), a congressional resolution authorizing him to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed , or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”4 Two days later, President Bush addressed a joint session of Congress, condemning the attacks as “an act of war against our country” and promising to bring the perpetrators—the terrorist organization al Qaeda—to justice. He also made clear that the Taliban, the government of Afghanistan, would be subject to retaliation for sheltering and harboring al Qaeda. Bush, however, did not stop there. He also described a military conflict of an apocalyptic nature that extended beyond any nation or single terrorist group. “Americans,” he said, “should not expect one battle, 12 | Foundation for the “War on Terror” but a lengthy campaign, unlike any other we have ever seen.” That battle would be waged against enemies wherever they were and would “not end until every terrorist group of global reach has been found, stopped, and defeated.”5 Meanwhile, a coterie of high-level administration officials began laying the foundation for sweeping presidential powers in this new global “war on terrorism.” The group included the then White House counsel Alberto R. Gonzales, Cheney’s legal adviser and longtime aide David S. Addington, Pentagon general counsel William J. Haynes II, and John Yoo, a thirty-four-yearold lawyer in the Department of Justice’s Office of Legal Counsel (OLC), the office that provides legal advice to the executive branch and whose opinions bind executive agencies.6 Together, these men would help create the conceptual and legal architecture for this “new type of war.”7 Yoo became one of the most important—and vocal—proponents of sweeping executive power. In a September 25, 2001, memo, Yoo described the president’s paramount role in protecting the nation through the use of military force. The decision whether to use armed force abroad, as well as the amount of force to be used, Yoo insisted, fell within the president’s “sole constitutional authority.” He claimed his theories were grounded in the tradition of a strong executive that dated back to Alexander Hamilton. Yoo also pointed to more recent precedents in which presidents had ordered military strikes in response to terrorist attacks: President Bill Clinton in Afghanistan and Sudan in 1998 and President Ronald Reagan in Libya in 1986. Besides maintaining that Congress had given President Bush power to wage war against terrorism under the AUMF, Yoo also claimed that the president inherently possessed this power by virtue of his role as commander in chief under Article II of the U.S. Constitution. He further asserted that Congress could not impose any limits on the president’s power to use military force to defend the nation.8 In another OLC memo, Yoo wrote that the president could deploy the military against suspected terrorists within the United States, with or without congressional approval.9 In doing so, Yoo said, the president would not be bound by the Fourth Amendment to the Constitution, which prohibits searches and seizures without a warrant or probable cause, since that amendment does not apply to the military during wartime...

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