Current Issue
Sept. 14, 2011
Vol. 112, No. 1
Printer
Thoughts on a tragedy: Lessons learned in the decade since 9/11
Published in the September 14, 2011, issue
Access to justice
By Anthony D. Romero ’87
Anthony Romero ’87 is executive director of the American Civil Liberties Union.
In the decade following the attacks of Sept. 11, the Bush administration, followed by the Obama administration, and often with the cooperation of Congress and the courts, restricted access to justice for victims of civil-liberties and human-rights violations and limited the availability of effective remedies for these violations. These efforts have denied victims of human-rights violations their day in court and shielded responsible officials and corporations from liability.
A strong judiciary is fundamental to the protection of our liberties. Over the past 10 years, on matters of civil liberties and national security, power has shifted away from the judiciary toward the executive branch. In the course of seizing greater power for itself, the executive branch often has sought — and received — the cooperation of Congress to emasculate the judiciary. Perhaps most surprisingly, federal courts largely have been willing accomplices in limiting their own power. A series of decisions in recent years has chipped away at access and placed a tremendous and often insurmountable burden on plaintiffs. Consequently, entire classes of people not only are denied access to justice, but may not even be aware of the injustices to which they are subject.
For eight years, the Bush administration sought to diminish access to justice in order to shift power to the executive branch. It frequently invoked unchecked executive authority and national-security concerns as reasons why the courts’ reach should not extend to the Oval Office or to other, undisclosed locations.
The Obama administration’s record on access to justice in matters involving national security has been mixed, at best. President Obama largely has taken the baton from President Bush on a range of issues, including military commissions, detention, state secrets, surveillance, and targeted killings.
A vigorous democracy demands checks and balances. When judicial oversight is weakened and access to the courts is diminished, our delicate system of checks and balances is disrupted. If the Obama administration continues to limit access to justice and to assert broad, virtually unchecked power on issues of national security, there is a great danger that it will enshrine within the law policies and practices that support a dangerous notion that America is in a permanent state of emergency and that core liberties must be surrendered forever.