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September|October 2005
Furious George By Neil Kinkopf
The Missing Link By Michael Greenberger
Monkey Wrench By Cass R. Sunstein
Lessons From the Swiss Cheese Map By Shari Motro
Disarming and Dangerous By Chris Suellentrop
King James I, of Michigan By Geoffrey Gagnon

The Missing Link

Congress has shirked its constitutional duties and floundered in the war on terror.

By Michael Greenberger

AFTER THOSE RARE AND DANGEROUS MOMENTS when an enemy has launched an attack on the United States, the president has frequently adopted sweeping defensive measures with little concern for individual rights protected by the Constitution. He has done so rapidly and without congressional approval, yet in most cases, whether it was Abraham Lincoln suspending the writ of habeas corpus during the Civil War or Franklin D. Roosevelt ordering Japanese-Americans incarcerated after the attack on Pearl Harbor, Congress has responded decisively. And through that response, Americans have at least been reassured that the president's unilateral action would stand only with the approval of their congressional representatives, as the founding fathers intended.

In the almost four years since the Bush Administration launched the war on terror, however, Congress has remained essentially silent about the Administration's harsh measures for detaining and interrogating terrorist suspects. Through mid-July, it had not passed legislation approving, disapproving, or even addressing these measures, which were adopted in the name of national security. Its silence not only put civil liberties at risk, but also undermined a central principle of the Constitution and of all representative democracies by allowing the executive branch to exercise extraordinary powers unchecked.

"In a government of separated powers, deciding finally on what is a reasonable degree of guaranteed liberty" in wartime "is not well entrusted to the Executive Branch whose particular responsibility is to maintain security," Supreme Court Justice David Souter wrote recently. "Hence the need for an assessment by Congress before citizens are subject to lockup, and likewise the need for a clearly expressed congressional resolution of the competing claims" between security and civil liberties.

THE FOREMOST EXAMPLE OF UNILATERAL ACTION in the face of enemy attack came at the outbreak of the Civil War, when President Lincoln suspended the writ of habeas corpus—an action that, under the Constitution, can be taken only by Congress—so he could summarily imprison suspected Southern provocateurs. Eighty years later, in the aftermath of Japan's December 1941 attack on Pearl Harbor, President Roosevelt ordered more than 70,000 American citizens of Japanese descent detained in military prison camps. Congress ratified Lincoln and Roosevelt's actions by enacting legislation that approved them retroactively. (Congress later overruled its and the Supreme Court's endorsement of Japanese-American detentions by passing a statute that bars the military confinement of U.S. citizens without congressional authorization.)

Following Lincoln and Roosevelt's lead, President George W. Bush responded to the September 11 attacks with the summary detention and punishment of suspected terrorists. By executive order, military regulation, and other unilateral methods, the Bush Administration established military tribunals that provided suspects with minimal procedural protections, created the status of enemy combatant to deny alleged terrorists essential rights under the Constitution and the Geneva Conventions, and endorsed interrogation tactics that approached or, as many critics argue, crossed the threshold of torture. The Administration also engaged in extraordinary rendition, sending enemy combatants to countries that almost certainly permit torture as an interrogation tactic, and it imprisoned and interrogated U.S. citizens and resident aliens without probable cause for the ostensible purpose of preserving their testimony for grand juries.

In contrast to its timely ratification of Lincoln's and Roosevelt's wartime decisions, though, Congress did not promptly pass a single piece of legislation addressing any of these actions by the Bush Administration. Senator Arlen Specter, chairman of the Senate Judiciary Committee, recently speculated about the roots of Congress's inertia. It "may be that [the issue] is . . . too hot to handle for Congress," he said. "It may be that it's too complex to handle for Congress, or it may be that Congress wants to sit back—as we, Congress, customarily do—awaiting some action by the court no matter how long it takes."

However, Congress's passivity clearly violates its constitutional duty to check the uses of presidential power, a duty backed by its authority to declare war, to raise and support the armed forces, to define and punish offenses under the laws of nations, and to establish rules for the capture of the enemy during war. The consequences of this stark failure include not only a weakening of representative government, but damage to the nation's international reputation.

To be sure, Congress passed the USA Patriot Act in October 2001, but as then-enacted the law did not address any of the Administration's behavior described above. Furthermore, the statute was, in effect, another example of unilateral action by the Administration, rather than a rare instance of collaboration between the president and Congress. It was the Justice Department that proposed the principal elements of the USA Patriot Act a mere week after September 11. Congress reviewed the act during one cursory hearing and voted to approve it less than six weeks after receiving the initial draft. For much of that time, Congress was shut down because a deadly anthrax virus was sent to House and Senate offices. And according to reliable reports, the House did not even have a written draft of the final version of the act when it was passed.

CONGRESS HAS COMPOUNDED ITS RETICENCE in the debate over the president's response to September 11 by ceding to the Administration the task of restoring many of the civil liberties that the president's policies eroded. The Defense Department, for example, responded to widespread criticism of military tribunals by issuing regulations that added procedural protections for the accused. Through internal memos, the Bush Administration abandoned support for interrogation practices like "water boarding"—tying a detainee to a board and dunking the board in water to make the person feel like he is drowning—and it rescinded its narrow definition of torture, which had meant that "inflicting physical pain" short of "the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death" wasn't torture.

What the Administration was unwilling to change, Congress left mostly to the courts. But even the courts were less than enthusiastic about resolving sensitive issues that they viewed as properly the business of Congress.

The Supreme Court and lower federal courts have struggled to find congressional authority to support their rulings about the validity of the Bush Administration's detention practices. The courts' efforts derive from Justice Robert Jackson's concurrence in the 1952 case of Youngstown Sheet & Tube v. Sawyer, which struck down President Harry S. Truman's order for the government to seize America's steel mills during the Korean War, because the order lacked congressional authorization. Jackson devised the constitutional doctrine that the executive branch's war powers are greatest "[w]hen the President acts pursuant to an express or implied authorization of Congress . . . ."

In Hamdi v. Rumsfeld, for example, five Supreme Court justices—the plurality and Justice Clarence Thomas in dissent—endorsed the Bush Administration's ability to imprison enemy combatants by concluding that Congress had implicitly approved the practice in the general language of its September 18, 2001, Authorization of the Use of Military Force. In Hamdan v. Rumsfeld, a Federal District Court invalidated the use of military tribunals as then constituted by relying on general language in the Uniform Code of Military Justice, first enacted by Congress in 1950. The court ruled that the tribunals failed in a fundamental way to meet the code's requirement that they provide the accused with substantially the same protections as courts-martial do.

Accordingly, while Hamdi, Rasul v. Bush, and the lower court cases that followed demonstrate that the Constitution "most assuredly envisions a role" for the courts in reviewing the president's unilateral wartime actions that affect civil liberties, the courts have preferred to exercise that responsibility based on at least a pretense of congressional collaboration.

SOME ARGUE THAT CONGRESS HAS DIFFICULTY prescribing the balance between civil liberties and national security, because the public is uncertain about how or where to draw boundaries between domestic security and constitutional rights. Since Congress is the branch most representative of the people's views, the argument goes, it would be asking too much of Congress to resolve these issues in the absence of popular direction. But the public's uncertainty does not excuse Congress from its constitutional duty. Even without clear direction, and often in defiance of popular support for the unilateral actions of executives, legislatures in other democracies have circumscribed the power of executives to deal with terrorism. They have done so because they have seen themselves as the guardians of constitutional rights and because the erosion of those rights undercuts international support essential for the fight against terrorism.

In a little noticed brief filed with the Supreme Court in the companion case to Hamdi, a distinguished international group of comparative law scholars demonstrated how the world's democracies, particularly Britain and Israel, have limited the detention and interrogation of terrorists. Among the controls imposed are a guarantee of the detainees' access to counsel, aggressive judicial oversight of the detention, and time constraints on detention and interrogation in the absence of proof that a detainee is a terrorist. If Britain's Parliament and Israel's Knesset—both located in nations that have long lived with deadly terror attacks—can establish transparent and precise rules for this process, so can Congress.

Yet there has been very little pressure on Congress to assume its constitutional role. Certainly, the Bush Administration wants no interference. Opinion polls suggest that Americans are not clamoring for legislative action either. Prominent figures outside government are probably in the best position to argue that history and the Constitution require Congress to carefully consider these issues, and some have done so. Members of the American Bar Association's Task Force on Treatment of Enemy Combatants, for example, have called on Congress to "enact legislation establishing clear standards and procedures governing the detention and treatment of U.S. citizens detained as enemy combatants." For the most part, though, leaders in the media, the organized bar, and the academy have been reticent. And only this summer, almost four years after September 11, did prominent senators of both parties offer serious proposals for constraining the president's unilateral actions taken in the name of national security.

Even the Supreme Court has demanded little of Congress. By creating its own rules for the designation and treatment of enemy combatants, the court in Hamdi may have unintentionally suggested that the judiciary can decide these historic questions without, in Justice Souter's words, "clearly expressed congressional resolution of the competing claims." If the court had instead heeded Justices Souter and Ruth Bader Ginsburg and invalidated the president's actions as lacking congressional guidance, Congress almost certainly would have been forced to act immediately. The ruling would have been a warning to Congress that to sit idly by while the executive branch makes decisions of war and peace is itself a decision that has profound consequences for national security.

Michael Greenberger is a professor of law at the University of Maryland and directs its Center for Health and Homeland Security.

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