Coyote Blog

As a libertarian, I am generally quite content to have Congress go on a 364 day a year vacation.  Maybe they can get together once a year and declare a national asparagus day or a national DVD rental day or whatever.

However, I will say that the debate about rules for military prisoner interrogations and detentions at Gitmo have caused me to make an exception to my general Lassaiz Faire approach.  One of the reasons we struggle with these issues is that, because we are facing the relatively new situation of having our military battle with non-uniformed insurgents not associated with any particular government or military force, the rules to be applied are fuzzy or non-existent.  Without rules, the administration has been making up its own, which activists of various stripes have been challenging in court.

And what is Congress doing?  Most of Congress has spent its time shouting out support or criticism (as the case may be) of the administration, and arguing about which judges should be selected to make sure that the administrations rules are or are not struck down.   I could have sworn that Congress has the primary responsibility for creating rules for these situations, to be enforced and interpreted by the Administration and courts.  Why is it, when there are no clear rules, Congress is the only branch of the government doing nothing?

Isn't it about time that Congress stop shouting encouragement or criticism from the shore and actually wade in with some legislation on these issues?  While I certainly have never been one to accept the Gitmo torture hysteria, its certainly a reasonable role for Congress to set standards for treatment of the type of non-military prisoners we are collecting.  For example, while the rules of Habeus Corpus for such a detainee are not necessarily the same as for a prisoner in the US, there certainly need to be some rules beyond the Administration's current ridiculous position that amounts to "we can hold them at our pleasure for as long as we want".

Update:  OK, I am obviously not keeping up.  I just got emailed a couple of links to some action on this front.  Reason has this:

A handful of Republican senators would like to determine:

(i) What is the definition of an "enemy combatant" who may be
detained by the military outside the ordinary civil justice system?; (ii) What
procedural rules should be employed by military tribunals?; and (iii) Which
interrogation techniques should be authorized, and which
prohibited?

Since these are questions the Supreme Court declined
to answer in its rulings on prisoner detention, it's nice to see that other
branch of government assuming a slightly less supine position--almost as if the
Constitution established it as a counterweight against the executive and the
judiciary.

Apparently the Bush administration, which could not manage to find the veto pen when the huge expansion of the already bankrupt Medicare system was in front of them, is announcing itself ready to veto anything:

that would restrict the President's authority to
protect Americans effectively from terrorist attack and bring terrorists to
justice, the President's senior advisers would recommend that he veto the bill.

Marty Lederman has much more analysis here.  His observation:

Heaven forbid Congress should have the nerve to actually exercise its
authorities under Article I, section 8, clauses 10, 11 and 14 of the
Constitution"”which empower Congress to define and punish Offences against the
Law of Nations, to make Rules concerning Captures on Land and Water, and to make
Rules for the Government and Regulation of the land and naval Forces. For to do
so will invariably hamper the Executive's ability to keep the Nation safe from
terror.

Isn't this just a tad too much arrogation of power, even for this President?