In the wake of the 9/11 atrocities, President George W. Bush asserted sweeping powers that no prior president had ever claimed. He ordered indefinite detentions of American citizens, created secret military tribunals, authorized the torture of "enemy combatants," threatened to prosecute journalists and others for disclosing national security secrets, and monitored Americans' e-mail and phone calls without warrants. The so-called War on Terror is the justification for this unprecedented expansion of executive authority.
The United States is the most powerful nation in the world. In the first century BCE, the Roman Republic was the most powerful nation in the Western world. Does this suggest a worrying parallel? Will history repeat itself?
By the middle of the first century BCE the Roman Republic had vastly expanded its authority throughout the Mediterranean. As Rome exercised political and military control over more and more territory, political rivalries began to tear at the constitutional fabric of the Roman Republic, and eventually civil wars broke out, leading to cries for a more powerful central government.
In 49 BCE, the Roman Senate revived the office of dictator. In previous centuries, the Senate elected a dictator in times of emergency, granting him unchecked power and complete impunity. The one restriction was that a dictator could hold power for only six months. An intimidated Roman Senate made Julius Caesar dictator, giving him the authority to subdue his political rival Pompey. In 44 BCE the Roman Senate named the victorious Caesar "dictator perpetuus"—dictator for life.
The United States is nowhere near civil war. Nor is George W. Bush about to become a dictator. But the president maintains that the current military emergency allows him (and his successors) to assert greatly expanded powers that will persist as long as the open-ended War on Terror does.
Under the "unitary executive" theory, John Yoo, then an attorney in the Bush administration's Office of Legal Counsel, drafted a memo two weeks after the September 11 attacks declaring that the president had "plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001." Since the United States is one of the battlegrounds in the War on Terror, unitary executive power may be used domestically. In other words, the possibility of further terrorist attacks on the homeland supposedly gives the president virtually unchecked power to order warrantless wiretapping, indefinite detention of both citizens and noncitizens, and so forth.
Like Roman dictators, the Bush administration is seeking impunity as well. According to the Washington Post, the administration wants to amend the War Crimes Act to "eliminate the risk of prosecution for political appointees, CIA officers and former military personnel for humiliating or degrading war prisoners."
But perhaps the power grab by a would-be imperial president is about to ebb. In June the Supreme Court ruled in Hamdan v. Rumsfeld that military star chamber tribunals were unlawful and violated the Geneva Convention on the Treatment of Prisoners of War. And five years after 9/11, Americans are not as easily frightened by the mere mention of terrorism.
At the beginning of the first century BCE, no one in Rome foresaw that the Republic would be destroyed in just a few decades, as ambitious politicians used emergencies and wars to justify increasing their powers. Unless the public, the Congress, and the courts resist the president's sweeping assertion of executive authority, the future of the American Republic may also be similarly at risk by the middle of the 21st century.