Wednesday, June 15, 2005

Congress Has A Role -- If It Wants It

For too long, Congress has abdicated its role on tough foreign policy matters to the Executive Branch. Congress has refused to declare war since WWII. It refuses to truely battle a president's use of force that Congress does not approve. It conducts military action through "authorizations" rather than declarations. Why in the hell did we not declare war after 9/11?

Since 9/11, Congress has further abdicated its role in the policy making of procedural and judicial issues to the Executive Branch with respect to enemy combatants and those people who appear to be security risks.

I don't blame the President for doing what he has chosen to do in light of the still present vacuum of legislation. The President properly declared that terrorist suspects and battlefield combatants, both at home (at least, in my view, as applied to non-citizens) and abroad (certainly non-citizens, and maybe even citizens), fall outside the normal criminal justice system and even the Constitutional protections afforded normal criminals.

Stating that the President was right to do what he did isn't the same as saying it should have been his unilateral decision. He did it because he had no other choice, other than to let normal Federal civil courts deal with the issues, which as we see every day, is a nightmare.

Congress has a role, and politically we would be better off if Congress would be a big boy and accept its role. Congress has been derilict in setting up the spectial courts needed for these new problems. It should have already enacted the standards and procedures to apply to enemy combatants and non-uniformed battlefield prisoners. Congress should have already created new, specialized courts, manned with new Article III judges, that could use special Patriot Act like subpoena power. These courts could have been given the right to secrecy that regular civilian courts do not have so that informants and national security could be protected. Had Congress done this, it would also have deflected some of the heat aimed to the Bush administration which is being accused of acting in a dictorial fashion.

Because Congress has not filled the void, the Executive Branch has been making up its own rules as it goes along. It has, a few times I think, acted unconstitutionally (e.g., Padilla). But that is really to be expected from any Executive when the political fallout from not doing enough is severe. Although Clinton basically ignored the first WTC Bombing, I think he would have reacted similarly, if not more harshly, after 9/11. Clinton, after all, never showed a reluctance to use jack booted like methods when he was President (see, e.g., Waco, Gonzales).

Moreover, it is easy to second guess in the absence of a homeland attack since 9/11. And this probably explains as much as anything Congress' reluctance to do its job. Why declare war when a resolution gives the President the discretion, and the political risk, to do the job. Why deal with comprehensive procedures and Courts when the President can act ad hoc, and take the political heat for any percieved excess.

Finally, the Congress is at least talking about this subject. In the wake of the recent Gitmo disputes, Congress is debating what "rights" Gitmo prisoners have. In my mind they should have none. But that isn't the point. Congress is the proper branch of the government to debate and establish generally applicable rules. Then the President can see that they be implemented, and the Courts, if granted jurisdiction by Congress, as is Congress' right to grant or deny, may decide their application to cases and controversies.

We have three branches of government. It is time for Congress, if it wants to participate, to get in the game and take the risks associated with policy making in sensitive areas of foreign policy. If it chooses to continue to sit it out, however, it has no right to complain and grandstand when this President, or the next one, makes it up as he goes along.


At 9:15 PM, Blogger Jehane said...

*anticipatory comment* :)

Good nite :)

At 8:45 AM, Blogger Pile On® said...

Good post KJ, the only problem is they don't want to act like adults, because it is much easier to do nothing and take shots at someone else.

The administration should pressure them to provide the guidelines but I suppose the like having the power congress has abdicated.

At 1:12 PM, Blogger Jehane said...


I finally had a moment to read and digest this (though I will undoubtedly be reading it through a few more times more).

First, it's the best thing you've written yet. I knew that when I scanned it the other day (toldja :) but was just too exhausted to deal with another thing until I got at least one of the monkeys off my back.

Second, you're preaching to the choir, but all the same, tell it, Brother J!

I wrote a paper on the ebb and flow (heh...) of Executive power when I was in 10th grade or so - I think I had chosen a book for an earlier book report and got sucked into the subject, so I've always been fascinated with the question of the exercise of executive power and privilege. I still have the durn paper somewhere.

Allow me to say, however, how very much in conflict I find the sentiments expressed in this post with your comment on The Greatest Americans. If I hadn't worked for 42 hours straight just prior, my riposte would surely have appeared this morning in the form of a long-winded and thorough research post.

It will, eventually, when the sleep-deprived fog clears from my never-nimble mind.

At 4:45 PM, Blogger Pile On® said...

Best he's written yet?

Cass obviously is not familiar with your work on the topic of women in prison.

At 5:13 PM, Blogger KJ said...

Yes. There is no accounting for taste. Some prefer the mundane seperation of powers essays, while only a select few appreciate my lead in the cutting edge WIP (women in prison) Research.

At 6:09 PM, Blogger Jehane said...

What can I say? I'm a sucker for smart men, even when I'm still too tired to put together a coherent comment.


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