Another Reason for Congress To Legislate

Many thanks to Marty for the kind words and thoughtful critique of my proposal. Two thoughts in initial response (I will probably have more later):

First, I did not mean my op-ed to suggest that Congress should act precipitously in the run-up to the election. While I do feel a sense of urgency about legislation in this area, it is far more important at this stage for any legislation to reflect the considered judgment of Congress and to emerge from a relationship of trust between Congress and the executive branch than for it to happen in the next six months. I hate quoting myself, but I really can’t say it better than I did in the conclusion of my book :

It is too late for the Bush administration. It has no trust on Capitol Hill, and it has no time. And even at this late date, it has too much ambivalence about the project—too much residual insistence that it has all the power it needs. … Bush also has too much baggage. Locked in a death grip with its critics, his administration can at most speak credibly to a fraction of the country. For presidential leadership in this arena, America will have to await Bush’s successor.

So, yes, Marty, I’m happy to spend the summer relaxing and talking about legislation—instead of actually seeing Congress pass legislation. And I’m delighted that you and I have so much common ground on the ultimate substance of that legislation.

Second, in my previous post , I outlined a set of practical reasons why I believe a legislative detention regime that places robust review of detentions at the front end makes more sense than simply treating all detainees as “enemy combatants” who challenge their status eventually in habeas corpus proceedings. These practical reasons, in my judgment, involve advantages both for detainees (innocent ones, at least) and for the government.

But there’s another reason as well for my support of a legislative approach, one on which I suspect Marty and I disagree pretty fundamentally: While I have always supported robust judicial review of detentions, I don’t want the rules of the road in counterterrorism written and defined by judges.

This point has both practical dimensions and philosophical (almost spiritual) dimensions as well. The practical argument is simple: Right now, we are going to face something like 200 habeas cases litigated with few known rules and procedures—and no agreed-upon substantive law. These questions are not interstitial legislative matters. They are foundational questions of the law of counterterrorism. And unless Congress gets involved, their answers will be defined by district judges (and later by appellate judges) in a process that will look pretty chaotic, that will take years, and that may or may not at day’s end produce a system that properly balances the myriad weighty interests at stake. More likely than not, the result will be constitutional rulings that the political system will be unable to amend to the extent   they prove ill-advised.   I can’t see how that process is preferable to a comprehensive consideration of the appropriate standards, evidentiary burdens, and procedures by the Congress.

On a philosophical level,   I confess myself utterly offended by the notion that a coordinate branch of government in this democracy to wit, the legislative ­branch —would cede such a profound lawmaking exercise to common-law dialogue between the executive branch, the judiciary, and a group of habeas petitioners. We can all pretend that current law answers the most basic questions here, but it most emphatically does not. And we therefore face a basic choice of which branch of government we wish would design what, one way or another, will be a new system of law to govern a set of problems we have not confronted before. I don’t think you have to be Justice Scalia to object to the notion of delegating that power to unelected judges. In a very fifth-grade-civics kind of way, I believe it is the burden of the legislature to answer the foundational questions we face. And I’m not willing to see either Congress slough off that burden on the courts or the courts relieve Congress of it.