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.