The Post-9/11 Era (September 2001 – present): Legislative Materials

This page contains links to legislative materials enacted in during the post-9/11 era.

Immediate Legislative Response:

In the immediate aftermath of the September 11 terrorist attacks, Congress passed a great deal of legislation to facilitate President Bush’s declared ‘war on terror.’ The first piece of such legislation, signed into law one week later, was the AUMF, which granted the President the authority to use all "necessary and appropriate force" against those he determined "planned, authorized, committed or aided" the September 11th attacks, or who harbored said persons or groups. The AUMF became the main source of presidential authority to detain enemy combatants following Hamdi v. Rumsfeld, in which the Court held detention of enemy combatants for the duration of hostilities to constitute an exercise of “necessary and appropriate force.”

The second and most far-reaching piece of anti-terrorism legislation was the USA Patriot Act, which was passed nearly unanimously in little over a month in response to public pressure to arm law enforcement with greater tools to combat terrorism domestically. Signed into law in late October, 2001, the USA Patriot Act broadened the discretion of law enforcement and immigration agencies to detain and deport suspected terrorists, while reducing existing restrictions related to intelligence gathering. The act also expanded the definition of terrorism to include ‘domestic terrorism,’ significantly expanding the range of activities to which the Act applied. The act has been a source of considerable controversy and has been accused by various human rights groups of violating the First and Fourth Amendment rights of US citizens. 

Second Wave of Legislation: Structural Reform

The second wave of anti-terrorism legislation consisted of a dramatic restructuring of the federal government into agencies better suited to meet the threat of terrorism. The Homeland Security Act (HSA) of 2002 created the US Department of Homeland Security, was well as the new cabinet-level position of Secretary of Homeland Security. The largest government reorganization since the creation of the Department of Defense in 1947, the Department of Homeland Security’s responsibility is stated as preventing terrorist attacks against the United States, but in an advisory and analytical role, through the management of the Emergency Preparedness and Response Directorate. The DHS assumed a large number of services previously conducted by separated departments, such as the Customs Service, U.S. Secret Service, Coast Guard, and consolidated a number of agencies, including the U.S. Immigration and Naturalization Service.

The HSA of 2002 was also the foundation for the Critical Infrastructure Information Act of 2002, as well as the Cybersecurity Enhancement Act of 2002.

In 2004, the Intelligence Reform and Terrorism Prevention Act effect the further restructuring of the US Intelligence Community by replacing the head role of Director of Central Intelligence with the newly created position of Director of National Intelligence (DNI), who serves as the principal advisor to the President in matters of national security and oversees the National Intelligence Program. The act also established the Office of the Director of National Intelligence (ODNI), as an independent agency to assist the DNI, which includes the National Counterterrorism Center.

Issue-specific Legislation:

The Iraq War 

Almost a year after the 9/11 attacks, the passage of the Authorization for Use of Military Force Against Iraq Resolution marked the beginning of the war in Iraq. The Act authorized President Bush to use US military force to “defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council Resolutions regarding Iraq.” Numerous factors justifying the use of military force were cited, including Iraq’s continued noncompliance with the 1991 ceasefire agreement, alleged weapons of mass destruction, and harboring members of Al Qaeda as well as other terrorist organizations.

Legislation relating to detention of enemy combatants

As the conflict in Iraq wore on, numerous pieces legislation were passed to deal with the ever increasing numbers of enemy combatants detained. The treatment of detainees became a national issue amid allegations of torture, as the Supreme Court heard habeas corpus petitions from detainees at Guantanamo Bay in 2004 (Hamdi and Rumsfeld). In 2005, Congress passed the Detainee Treatment Act (DTA), in an attempt to eliminate the statutory habeas jurisdiction established by Hamdi in favor of more limited form of judicial review exclusive to D.C. Court of Appeals. Two years later, in response to the Court’s evisceration of the DTA in Hamdan, Congress passed the Military Commission Act to “authorize trial by military commission for violations of the law of war, and for other purposes.” Other important legislative acts relating to detention and detainee rights include 18 U.S.C. § 4001, which deals with limitations on detention and control of prisons, 18 U.S.C. § 2340, defining torture, 18 U.S.C. § 2441, defining war crimes, and 28 U.S.C. § 2241, dealing with the power of SCOTUS to grant writs of habeas corpus. 

Legislation related to Domestic Intelligence Gathering

The FISA Amendments Act of 2008 was a response to public outcry after warrantless wiretapping by the NSA led to the filing of many lawsuits alleging abuses of government power. Amending the Foreign Intelligence Surveillance Act of 1978, the main purpose of the amendment was to “establish a procedure for authorizing certain acquisitions of foreign intelligence,” but in addition it lowered many requirements for surveillance of targets outside of the country and increased the time allowed for warrantless surveillance from 48 hours to a full week for "a U.S. person located outside of the U.S. with probable cause they are an agent of a foreign power.” The day the amendment was signed into law the ACLU filed a lawsuit alleging the new law violates First and Fourth Amendment rights of Americans. (Amnesty et al v. McConnel;  Amnesty v. Blair) In addition, a controversial provision granting retroactive immunity (which can be overturned by the courts on explicit grounds) to complicit telecommunications companies who had cooperated with the federal government effectively stalled many of the suits pending at the time of its adoption.

Authorization of the Use of U.S. Armed Forces Against Those Responsible for the Recent Attacks Launched Against the United States, (P.L. 107-40, 115 Stat. 224, September 18, 2001 [S. J. Res. 23])

FY2002 Intelligence Authorization Act, PL 107-108 115 Stat. 1394 (2001)

FY2003 Intelligence Authorization Act, PL 107-306 116 Stat. 2383 (2002)

H.J. Res. 114, 107th Cong. (2002)

FY2004 Intelligence Authorization Act, PL 108-177 117 Stat. 2599 (2003)

FY2005 Intelligence Authorization Act, PL 108-487 118 Stat. 3939 (2004)

Terrorism Risk Insurance Act of 2002, Public Law 107–297, November 26, 2002

Naval Nuclear Propulsion Program, 50 U.S.C. § 2511, effective November 24, 2003

Designation of judges, 50 U.S.C. § 1803, effective October 7, 2010

Applications for court outsiders, 50 U.S.C. § 1804, effective October 7, 2010

Criminal sanctions, 50 U.S.C. § 1809, effective October 7, 2010

Covert Action Statute, 50 U.S.C.A. § 413b, effective October 7, 2010

Authorization during time of war, 50 U.S.C. § 1811

Presidential approval and reporting of covert actions, 50 U.S.C. § 413b, effective October 8, 2010

The Homeland Security Act of 2002

The Communications Act of 1934

Federal Information Security Management Act (FISMA)

Critical Infrastructures Protection Act of 2001

The Defense Production Act of 1950, as amended

The Stafford Disaster Relief and Emergency Assistance Act

Post-Katrina Emergency Management Reform Act of 2006

Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act)

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