Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror (New Press, 2007), and recipient of a 2006 Carnegie Scholars Fellowship.
The general understanding —if not the universal practice—is that those on Capitol Hill answer to today’s voters, but not tomorrow’s. On matters such as global climate change, the consequences are evident. Today’s leaders face too small a reckoning for their disregard of ethical obligations to our planet and future generations. Pushing back today’s problems, they store up crises for our children.
But environmental issues are not the sole arena in which the future holds an accounting for short-sighted policies. Perhaps surprisingly, national security is another. Here Congress seems capable of only acting in frantic fits of unwise activity. Lawmakers should take advantage of the recent change in congressional leadership to both correct recent mistakes and reflect on their bad habit of leaping before looking.
In September this year, both Republican and Democratic legislators succumbed to unseemly pressure from President Bush and passed the Military Commission Act of 2006. As I have discussed here and here, this law is a wretched compendium of needless derogations from proud American traditions of freedom from detention and torture. Faced with presidential claims that the law was "urgent" and a "top priority" for national security, however, legislators who faced election battles buckled, barely examining the introduced bill. Many Democrats (and some Republicans) opposed the legislation, and pushed for improvements—to no avail.
The harm to innocent Americans citizens and residents will not necessarily happen on this Congress’s watch. Or the next one’s. But unlike the USA Patriot Act, the MCA contains no “sunset” provision, under which a power automatically expires unless reviewed. There will be no necessary opportunity, however fragile, to review the record of the Act’s usage, and to consider its utility.
That’s why it’s important for Congress to take up legislation, in the vein of that suggested by Senator Christopher Dodd, and the new Senate Judiciary Chair Patrick Leahy, to scale back some of the precipitous excesses of the MCA. Sound legislation is needed to restore the historical remedy of habeas corpus, to limit executive detention power, and to reimpose criminal sanctions on the full spectrum of torture overseas. Dodd’s proposal makes important gestures, especially regarding habeas and detention powers.
Early evidence suggests the government is wasting no time in using the expanded detention powers granted by the act. This month, it filed legal papers in the case of a Yemeni citizen detained in the United States since 2003 as an “enemy combatant.” Pointing to the MCA, Justice Department lawyers argued that a person can be detained as an “enemy combatant” without judicial review for years on end. Indeed, the Justice Department pointed out, the MCA allowed a non-citizen to be detained without any judicial review if he is “awaiting designation” as an enemy combatant.
Why would the Bush administration want not only open-ended detention power, but also power to deny any opportunity to probe the facts behind a detention? A clue comes from the case of Guantánamo detainee Majid Khan. The government has argued, successfully so far, that Khan not be allowed to talk to his lawyer because he might reveal the techniques used to interrogate him. That is, Khan can’t talk to his lawyer because he might tell her how he’s been tortured. If the government justifies detentions based on information from torture—which is notoriously unreliable as well as being ethically execrable—of course it doesn’t want a court to know that or to probe that evidence’s reliability.
The Yemeni case is so far unique. And in the absence of another major terrorist scare, it’s likely to remain relatively unusual. But consider what happens if there is indeed an actual attack, or a close shave.
Indeed, we already know how the government will act: There will be sweeps of Muslims and ethnic Arab communities. Hundreds, if not thousands, of innocent people will be arrested. They will be held for weeks, months—and in some instances even years. Families will be cut in two. U.S. child citizens will see a parent or caregiver snatched away in the middle of the night, never to return. Many will be deported. Lives will be cracked apart.
This is what happened immediately after 9/11, when the government largely used its immigration powers and a previously little-used law that allows it to detain “material witnesses.” Then, it had to answer to at least minimal judicial supervision. The act Congress passed in October eschews any bothersome restraints on government power like judicial supervision. It’s not hard to imagine things being much worse.
Congress should act swiftly to repeal the MCA’s most egregious and undemocratic elements. To be sure, there is every likelihood that the present Dodd proposal, or the Leahy proposal—that will likely appear soon—would face a presidential veto. But such bills would serve as important templates, and also sources for discrete fixes that could be tacked on to other pieces of legislation.
There’s also a need to reconsider how Congress handles the serious charge of crafting national security legislation. Too often, policymakers embark on the task of reassuring an electorate stoked by partisan fear-mongering, and forget the need for truly targeted counterterrorism measures.
Terrorism, to be sure, is an immediate problem. Without doubt, immediate responses are required. But partisan theatrics are no route to wise answers. Nor is a rush to judgment. Rather than engaging in careful and prolonged debate grounded on a full sense of the facts, Congress rushes in where even fools fear to tread. Little more than two weeks expired between President Bush’s melodramatic call for the MCA and its final passage. The House and Senate also passed the USA Patriot Act in little more than a month after 9/11, on October 25, 2001.
Yet the president’s own actions after the MCA’s passage show that his urgency in September 2006 was a ruse. Bush waited more than three weeks to sign the enrolled bill. (Likely this was an effort to wait out the Foley fiasco, and so maximize electoral gain.) In other words, the president waited for longer that the period of time that Congress had spent debating and voting on the bill. In any case, there is no realistic possibility that any prosecution in the Act’s new system of military commissions could even begin this calendar year. The need for speed, in short, was so much theater.
Immediate problems are no cause for disassembling limits on executive power that have been carefully constructed over the past 204 years. Short-term electoral calculus only leads to responses that make no particular sense even for the short term. For when we legislate in haste, to repent another day, we do grave disservice to the America of our children and of our children’s children.