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Many of the powers that the executive branch wield come from Congress giving the Bush administration extraordinary powers following 9/11 with the Patriot Act. The Patriot Act that takes away the protection of habeas corpus, due process, privacy, reversal of innocent until proven guilty (p. 272, 274). It also grants the use of sneak and peak searches allowing for looking first and getting a warrant later which violates the 1st and 4th amendment (p. 271). National security letters requiring providing information for records and then not allowing that person to tell anyone but a lawyer (p. 271). All of these powers were given under the idea of “war powers”, typically war time is a limited amount of time that accept more extreme security measures, but with the prospect raised by the Bush administration of a new era of never ending conflict means these powers might not end.
Another tipping of the scales towards the executive branch and president is the use of signing statements. The signing statements allow legislation passed by congress to be applied how the executive branch sees fit which directly contradicts the legislative role is creating laws ("Aba: Blue-ribbon task," 2006). In the passage of the Detainee Treatment Act of 2005 the administration tried to disallow federal district courts from hearing challenges by Guantanamo detainees (p. 156). While seemingly allowing for the banning of mistreatment, it also prevented filing by detainees against the government for acts of mistreatment, making it unenforceable (p. 157).
The allegations of torture against terrorist suspects violates not only the Geneva Convention but also human rights. Torture is not an effect method to gain information it only works to get those tortured to do admit to anything to make the pain stop (Gibney, 2007) .
Some powers the administration took for themselves including NSA wiretaps which are not always used against terrorists (p. 112, Farren & Gibb, 2007) . The Bush administration bypassed the FISA court which could be considered weak oversight enacted by congress and operates in secret. The FISA court was specifically setup for the purposes of warrants in exactly the types of cases that were bypassed.
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"Never Ending War is Never Ending Power." 123HelpMe.com. 28 Mar 2020
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The use of extraordinary renditions which amount to kidnapping and sending the suspects to black sites and not this country for criminal or even military court proceedings (p.189). Black sites are places for all intents and purposes don't exist in Afghanistan, Poland, Lithuanian and other countries. The judicial branch attempted to limit executive powers only to be subverted by congress. The supreme court ruled in Hamdan v. Rumsfeld that military commissions designed to try Guantanamo detainees because they violate the Geneva Convention and allows people defined as unlawful enemy combatants to be held indefinitely (p. 167, 168).
The public is also to blame in its apathetic view towards executive oversight. The idea that the post 9/11 world is different and that the old rules don't apply added to the notion that we need to “take the gloves off” and play dirty. What ever is done in the name of safety fulfilling the rallying cry of action over deliberative thought.
Arguments were made that the Bush Administration needs these war powers to be effective against a new enemy. That we can't tell the enemy how we're spying on them or give any details about how the war on terror functions because it will embolden the enemy. If we were to accept the premise that new measures need to carried out or new authority needs to be given. Than it should be accept that oversight and transparency should accompany it.
The surveillance and repression of civil liberties that happen to one group can happen to another, this can be seen with the surveillance of anti-war groups and their activities being labeled as “suspicious incidents” by DoD division CIFA (p.258). This information is collected and put into the TALON (Threat and Local Observation Notice) database for the purposes of classifying domestic threats (p. 259).
With this over reaching by the executive branch it is possible that checks and balances can be restored. Olshansky says that the only way to restore the check and balances is to not grant an administration a pass by the courts with respect to individual liberties (p. 290). The people must be vocal in their call for investigations at all level of government (p. 292).
I think that any time an administration gains powers it will not give them up willingly. It wants to operate with a free a hand as possible to pursue its goals. While it is possible that an administration could give up its powers I don't see that likely to happen. What an administration would likely decide not to employ them but retain the right to use them if it decided it were necessary.
Historically inordinate accumulation of power “war powers” by the executive branch be rolled back by Congress in a process similar to the reinstatement of habeas corpus after the Civil War, the Alien and Sedition Acts of 1798, or the Sedition Act of 1918. Constitutionally their roll is clear but they lacks the political will to do anything because they don't want to be labeled as being soft on terrorists.
Anytime great power is giving it should be with limits, this should include sunset provisions with legislation and greater transparency in how it is carried out. The public should demand accountability for public officials when there are clear violation of our collective morals, ethics, human rights, and freedoms.