Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
We may have just witnessed the turning of the tide in the battle for control of the nation's legal response to the war on terror. On Tuesday, 17 months to the day after the attacks on the World Trade Center and the Pentagon, the legislative branch finally told the executive branch that it had overreached on a series of programs and policies designed to detect terrorists.
And Congress didn't just tell the White House that it didn't like the Pentagon's Total Information Awareness program, it literally stopped the controversial project in its tracks domestically. It's too early to say that Congress now will be in the Bush Administration's face at every turn as the White House tinkers with legal initiatives to stop terrorists before they strike. But it isn't too early to say that members of Congress finally appear to be rousing themselves from their torpor when it comes to acting as check on executive power.
The Total Information Awareness concept probably was a loser from the moment the world learned that Adm. John M. Poindexter was heading it. Poindexter is the fellow who proudly lied to Congress — and was convicted for it — during the Iran-Contra scandal in the mid 1980s. As such, he is hardly the sort of guy people wanted to believe when he said that a colossal government monitoring effort like TIA — your e-mails, commercial databases, etc. would have been open to prying law enforcement eyes — would not unduly curtail constitutional rights. Still, the Administration didn't back off on the effort, didn't direct the Pentagon to voluntarily withdraw from legislative consideration.
So that created a showdown of sorts with Congress over TIA. Perhaps it's just the passage of time. Or perhaps it's the president's slumping poll numbers. Maybe it's Poindexter. Or the notion that even the terror attacks and the desperate need to prevent future attacks don't merit the sort of Big Brother future that TIA portended. Whatever the case, the same body that passed the most expansive piece of law enforcement legislation in generations after barely reading it, much less actually debating it — the USA Patriot Act — suddenly found a voice in opposition to unilateral governance by the White House.
Sen. Patrick J. Leahy (D-Vermont), the ranking member of his party on the Judiciary Committee, put it best: "If there is one thing that should unite everybody, from the very conservative member to the very liberal member, it is a concern that our own government should not spy on law-abiding citizens."
And Sen. Charles E. Grassley (R-Iowa), who co-sponsored a legislative amendment that blocks TIA from use against Americans, said: "Protecting Americans' civil liberties while at the same time winning the war against terrorism has got to be top priority for the United States… The acceptance of this amendment sends a signal that Congress won't sit on its hands as the TIA program moves forward" in support of lawful military operations outside of the country.
Grassley's comment in particular begs two questions. First, why did Congress sit on its hands until TIA crossed its path? And, second, is Congress likely to sit on its hands again?
The answer to the first question cannot fully be answered now-without the benefit of historical context — except to say that the current legislators merely did as their predecessors had done during times of crisis: They deferred greatly, almost excessively, to the executive branch. They deferred on a formal declaration of war, which never has been given to President Bush either for the conflict in Afghanistan or the looming war in Iraq. They deferred on a meaningful pre-vote review of the Patriot Act. They deferred on congressional oversight over the President's use of military tribunals. And they deferred on many other issues where legislative action might have altered the course of the government's legal and law enforcement response to the attacks on America.
The second question, on the other hand, can be answered. The TIA stand looks like it presages a new feistiness on the part of Congress. For example, several members of Congress filed suit Thursday in federal court in Boston contending that the President has no legal authority to go to war with Iraq since Congress never formally gave him that authority. The lawsuit has about as much chance to succeed as does the Iraqi leader, but it symbolizes that post-attack deference from the legislative to the executive is waning.
Less symbolic and more potent has been Congress' reaction to a set of new law enforcement measures floated late last week as a trial balloon by the Justice Department. House Judiciary Committee Democrats called on the Justice Department to explain what is what just a day or so after word leaked that federal lawyers and law enforcement officials were seeking to expand upon the Patriot Act by pushing for passage of the Domestic Security Enhancement Act of 2003. Clearly, the Administration won't be able this time around to ram through broad legislation without a fight. At a minimum, you'd think that Congress will at least require the White House to explain why the sweeping Patriot Act wasn't enough.
Then there is the matter of enemy combatants and the possibility that Congress soon will have another opportunity to check executive branch power. The American Bar Association earlier this week called upon Congress to set standards for the treatment of U.S. citizens who are designated by the President as "enemy combatants." So far, two such citizens — Jose Padilla and Yaser Esam Hamdi — have been designated in this fashion.
The classification means that they cannot have access to lawyers and will not necessarily face charges; they are in a sort of legal and military limbo.
The ABA called on Congress to help because the federal courts so far have been extraordinarily unhelpful in requiring the administration even to justify its designations, much less ensuring that Padilla and Hamdi get some constitutional rights. Will Capitol Hill get involved in this fight? A few months ago I would have said no. Today, I'm not so sure.
By Andrew Cohen
Copyright 2003 CBS. All rights reserved.