Foreword: Executive Power: From the Constitutional Periphery to the Constitutional Core

Mark A. Graber

In 2006, Jack Balkin and Sanford Levinson announced that the United States was transforming into a “National Surveillance State.” This “National Surveillance State,” they claim “is characterized by a significant increase in government investments in technology and government bureaucracies devoted to promoting domestic security” as well as “gathering intelligence and surveillance using all of the devices that the digital revolution allows.” While the al Qaeda attack of September 11, 2001 provided a crucial impetus for the development of this new regime, Balkin and Levinson insisted that the roots lie deeper. The National Surveillance State is a product of the way in which the communications revolution has augmented the capacity of terrorist organizations and ordinary criminals to commit heinous crimes while similarly augmenting the capacity of government officials to use technology to prevent those crimes and identify those criminals. As Balkin and Levinson note, “[f]ocusing on war as the primary cause of the National Surveillance State overlooks the fact that surveillance technologies that help the state track down terrorists can also be used to track and prevent domestic crime.” Balkin and Levinson predicted that the National Surveillance State would be bipartisan. They declared, “there may be no meaningful division between the Democratic and Republican Parties with regard to the imperatives for, and the broad outlines of, the National Surveillance State.” Recent events suggest their prescience. As Jack Goldsmith noted in a recent book, the Obama Administration’s efforts in the War on Terror far more resemble Bush Administration practices than candidate Obama’s promises. “Contrary to nearly everyone’s expectations,” Goldsmith notes, “the Obama Administration would continue almost all of its predecessor’s policies, transforming what had seemed extraordinary under the Bush regime into the ‘new normal’ of American counterterrorism policy.” Guantanamo Bay remains open, electronic surveillance continues, and Obama Administration officials, if anything, have increased the use of unmanned drones for assassination attempts on suspected terrorist leaders.