Government's Battle Of The Branches

Andrew Cohen: Congress Is Suffering For Not Standing Up To The White House

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com

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Just a few hours after the Senate again was humiliated by the White House over the National Security Agency's domestic spying program, Congress and the rest of us were offered a vivid reminder Thursday of the price our nation pays when our legislators fail to show resolve in the face of such executive branch hubris.

The humiliation came in the morning from Attorney General Alberto Gonzales, who brashly told the Senate Judiciary Committee that he wasn't sure the Bush administration would allow its members to see a court order that effectively transferred jurisdiction over the domestic spy program from the executive branch back to the judiciary. Given that the Congress created the Foreign Intelligence Surveillance Court nearly 30 years ago, the judge who issued the order said publicly that she had no problem showing it to Congress, and that Democrats now control both houses, Gonzales' position was remarkably dismissive.

The reminder came in the afternoon from the Pentagon, in the form of new military rules designed to finally trigger the prosecution of hundreds of the detainees currently being held at Guantanamo Bay, Cuba. Military officials were immediately pilloried for some of the new procedures but they were simply following the lead of the legislators, who late last year passed the Military Commissions Act of 2006. In the end, after much early earnest talk about justice and fairness, Congress capitulated grandly to the White House on some of the most important provisions in the Commissions Act — and the new rules, for better and worse, are the result.

Were enough legislators able to absorb the unmistakable link between their fecklessness toward the administration and the bad policy that results from it? Did it help that both the yin and the yang of this occurred within hours of one another? We'll know when we learn whether and to what extent the legislators react to Gonzales' don't-worry-your-pretty-little-head-about-it attitude. We'll know if and when the newly-constituted Congress decides to get back involved in the legal and political debate over how the Guantanamo detainees ought to be treated at trial. We'll know if 2007 turns out to be different than 2006 or 2005 or 2004 when it comes to the interaction between the two branches.

But here is how that relationship stands at the beginning of the year. The New York Times on Friday dryly described Gonzales' stand. "Pressed repeatedly for details," wrote David Johnston and Scott Shane, "Mr. Gonzales offered little new information and would not agree to provide more documents to explain the decision. He declined to answer questions about why the administration had reversed itself after saying for more than a year that the program could not operate effectively under court supervision." In other words, even when the White House is forced by legal and political realities to back down from its most extreme position, it's not inclined to be conciliatory or cooperative.

The senators seemed furious at this continued lack of respect. Committee Chairman Patrick Leahy, D-Vt., talked about an "Alice in Wonderland" world where the executive branch was telling the judicial branch not to cooperate with the legislative branch. But there is a gulf between expressing frustration in a Senate hearing room and actually doing something about it. Congress could amend the Foreign Intelligence Surveillance Act next week if it wanted to and thus end the entire charade over who gets to oversee whom when it comes to domestic surveillance that is conducted without prior court approval. It could have amended FISA any time last year, too — but it had no will to meet the challenge.

What Congress did choose to do last year was to fail and/or refuse to answer all of the important questions raised by our government's efforts to prosecute the terror detainees at Gitmo. Even though the new military rules are better than the old rules — the ones that were ceremoniously dumped by the United States Supreme Court — there is still a significant question whether they go far enough in giving the detainees certain core due process rights. We (and Congress) will have no one but ourselves to blame if the new-and-improved rules still generate a new round of legal challenges generating a new round of Supreme Court review generating another ruling that is disappointing to White House officials.

For example, a detainee may be sentenced to death under the new rules based upon hearsay evidence alone or by testimony obtained through "coercion" (whatever that means) so long as a military judge is convinced in either or both cases that the testimony is reliable. In other words, a witness whom a judge determines has been coerced to speak still can help send a guy to the military's equivalent of death row. Pentagon lawyers were quick to point out that such military determinations could be appealed to federal civilian courts, which ought to reasonably appease some civil libertarians.

The problem is that because so much discretion will be given to the presiding judge of the tribunals — to determine when "coercion" taints the testimony it produces, for example — we ought to expect many of those appeals, time-consuming and legal confusing, which ought to infuriate those in the White House who had hoped that by hectoring Congress last December into passing the Commissions Act the tribunal process would begin, be expedited, and generally shielded from federal review.

There you have it. We know what has happened recently when the White House has arrogantly tried to impose its will upon Congress. We were reminded of it on Thursday from the Pentagon. And we know from our own eyes how the White House is treating Congress even now over the latest domestic spying twist. So it's all on our legislators now. All of it. And how they react to this new challenge from the administration, this new defiance from its co-equal branch, will tell us a lot, early, about what the new Congress is all about and whether it's an improvement on the old one.

[bluestardad]

Chicken Hawk EXposed!

Is there some way to legally request Republican Third District Indiana Congressman Mark Souder excuse himself from the Votes on the Iraq War as he is a Certified Conscientious Objector with the United States Selective Service. If his moral views would not let him serve in Vietnam during war it should also excuse him from voting to send other people%u2019s children to wars in Iraq and Afghanistan.

[johnshaft4]

Adios, Amigos...
What country YOU wind up in; what 'charges' are filed against YOU; only Lord Alberto 'the Inquisitor', ONLY KNOWS.
May, "the Force" be with you and a REAL God have mercy on your po' pathethic soul...
Totally collapsed/failed "eunich" Judiciary

[johnshaft4]

Exec Branch: Presided by Alberto 'Speed Freak' Gonzales
Judicial Branch: Presided by Alberto 'Speed Freak' Gonzales
Rep Branch: Presided by: Alberto 'Speed Freak' Gonzales

Disagree?...Then, You are an 'enemy combatant' and Lord 'Inquistion' Alberto has "SPECIAL" PLANS FOR YOU!!!

[feelfree1]

catt42701,

Re: "It's not just Congress who is not taking control, the Supreme Court has let the country down also."

That is an important point. Thank you for raising it.

[catt42701]

It's not just Congress who is not taking control, the Supreme Court has let the country down also. The negated one of Bush's attempts to try the detainees and could continue to stop Mr. Bush at any time, even though 2 of the justices were appointed by him. There are three levels of government and if two of them start doing their jobs King Bush will be off his throne and his court will be evicted. Impeachment should happen before his term is finished. He has broken high laws and misdeameners as well as lied many times. That is grounds for impeachment and it is time for Congress to stand up and do the right thing. Bush and Buds out of power. Get someone rational, reasonable, intellegent and willing to take responsibility for their actions in.

[feelfree1]

egresor,

Re: "what this article points out is that congress is still basically spineless!"

"the law is the law and bush knows that if taken to the courts he will lose."

Great point! I look forward to Gonzales facing trial with his co-conspirators!

[feelfree1]

jdweymouth.

Re: "That statement above is the difference between the left and right, the difference between you and me, the difference that will cause a bloody merciless civil war."

Your opinion appears to be well out of date. A bloody and merciless civil war already exists in Iraq; a civil war which was instigated by people like John Negroponte.

You have failed to describe what it is that you hope to "win" in Iraq/Viet Nam. I have provided references for my claims, while you have offered none. You have built straw-men, and I have knocked them down.

I am not opposed to the Bush regime because "they are trying to win a war in favor of us". I am opposed to them because they are bloodthirsty, greedy, and illegitimate, because they have murdered and tortured hundreds of thousands of people, and because they have laid one of the most crippling moral and military deafeats in our nation's history, at our doorstep.

You seem to see major differences between the Corporate/ Israeli controlled Democrat and Republican Parties. I don't.

Lastly, you are confusing wild,baseless, unsupported assertions with critical thinking. What you are describing is, rather, faith/fear-based foolishness.

[egresor]

what this article points out is that congress is still basically spineless!

the law is the law and bush knows that if taken to the courts he will lose. there is no other way they could decide, but who in congress will do it? Reid? he's been hiding out in the senate for a long time. when are you gonna step up and do your job harry? pelosi? she's been there all along too and what have we heard from her. or any of them for that matter?

they whined a bit when bush took FISA away, but did they do anything else? absolutley not! what do you think they are? oh.....sorry, I forgot they know what they are....they're politicians. we don't need more politicians in washington we need people with spines!

FISA is the law and like it or not bush violated that law. he cannot invoke some vague war powers he claims to have to usurp the law.

the problem is that congress has no backbone. they have backed down on so many issues it's amazing. they passed FISA and it was signed into law. why don't they hold bush to it?

[jdweymouth]

bluestardad: Of course he has the right to "escalate" the war. War has been declared, and the president can maneuver the troops however he wants to, but if congress withholds funds, they will damage our war making capabilities.
There was no "mandate" to end the war in November of last year, because the Democrats didn't win by much: they fell well below the national average when they won. They're tied in the senate, and have only about a 30-seat jump in the House: there was no "great mandate" as Pelosi said.

[bluestardad]

This escalation of Iraq combat has not been approved by Congress and the President does not have the right to escalate the war. It is time the Iraqi people took responsibility for their own country. The President%u2019s stated reasons for war with Iraq in the original mandate from congress does not apply and has been proven false on every point, at the cost of 3 American lives a day and two billion tax dollars a week. Congress must act to stop all funds for this war now and bring our troops home. November 7, 2006 was a mandate to stop the war in Iraq and the Culture of Corruption in Washington. What great things could American domestic programs do with two billion dollars a week we are spending in Iraq?

[jdweymouth]

P.S. Iraq is in the middle of, not civil war, but it's in the middle of sectarian upheaval and violence. The Iraqi government has enacted its promise that they'll crack down, and as long as we're there: it isn't lost. Not all of the country is engulfed

[jdweymouth]

P.S. Iraq is in the middle of, not civil war, but it's in the middle of sectarian upheaval and violence. The Iraqi government has enacted its promise that they'll crack down, and as long as we're there: it isn't lost. Not all of the country is engulfed in it though; only the central parts are involved.

[jdweymouth]

RE: "What do you hope to win?"
I hope my country wins the war is set out to win. I continue to pray for our victory and our troops, I continue to believe that we went there for legitimate purposes, you don't have to: I don't care what you do or believe. You are a traitor, by saying "I don't care" you say you don't care about the soldiers dying for your freedom to hate America, and Bush. You should try living in China; I have, and I'm telling you: you would last two minutes. You are a worthless lab result of the mainstream liberal media, and I'm finished arguing with you.

Closing statement: That statement above is the difference between the left and right, the difference between you and me, the difference that will cause a bloody merciless civil war. A civil war my side won%u2019t lose because we believe in the greater ideas that our country was founded upon more than the lives of people who hate their country. You can accuse me of being indifferent to human life, but that isn%u2019t so. I care about the lives that are being put in danger by the left%u2019s %u201Cideologies%u201D , I couldn%u2019t care less for traitors like you.

You pale to George Bush.

[jdweymouth]

Part 1/2
"Sounds like you are addicted to faith-based nonsense. If you can provide anything to support this claim, you are welcome to present it. Someone might believe it."-posted by feelfree1

I don't, but the difference between you and I, is that you state opinions absolutely, and conveniently. The idea I mentioned is extremely possible, and it is called critical thinking. Do you have substantiated evidence that Bush played the election, other than anti-Bush, radical liberal websites run by people with IQs lower than 85? My point is: he was legitimately recognized as president, and conspiracy theories won%u2019t make it false.

RE: "The fraud that I am referring to occurred prior to any counting. You are building a straw-man here."
I'm building a straw man? Am I the won developing a conspiracy theory because I don't like the guy in office? This is what we call hypocrisy. You condemn me for putting forward an unsubstantiated opinion (by the way, it is a fact that you wouldn't need a cell in a country like Iraq used to be, and Iran is like now), sometimes called an educated guess, while you make absolute statements. You have no evidence other the website you mentioned? If you don't, you might as well say, "Well...he told me..." Bush legitimately won the election, you can buy into paranoid conspiracy theories from those who have nothing better to do than sit at home all day making websites about it, if it makes you feel better.

[feelfree1]

jdweymouth,

I would love to hear what it is that you hope to "win"?

Good luck with Viet Nam! I think youv'e got em' on the ropes!

[feelfree1]

jdweymouth,

Re: "if there were no Al Quieda cells in Iraq before we invaded, that's because they operated in plain sight. They hid in plain sight."

Sounds like you are addicted to faith-based nonsense. If you can provide anything to support this claim, you are welcome to present it. Someone might believe it.

Re: "The Supreme Court in 2000 ruled there wouldn't be any more recounts.."

Please check out the URL that I provided for you:

www.ericblumrich.com/gta.html

The fraud that I am referring to occurred prior to any counting. You are building a straw-man here.

The 2004 vote pResidential fraud efforts are described at:

www.blackboxvoting.org

and www.gregpalast.com

You offer many dubious claims, completely absent of any support. Shall I just take your word for it?

Re: "The administration members are enemies because they are trying to win a war in favor of us, and in a way you disagree with?"

They are enemies because they have fraudulently seized power, disgraced our country with illegal war of aggression, looted our economy in favor of their cronies, demonstrated complete contempt for human life, for basic decency, and for the rule of law, for starters.

They have betrayed our country and our Constitution, and they are the laughing stock of the universe, which is not a crime, but it is a shame.

You keep telling yourself that you have "won" something in Iraq, if it helps you feel better. I have no use for such faith-based delusional nonsense.

[jdweymouth]

Part 2/2
The administration members are enemies because they are trying to win a war in favor of us, and in a way you disagree with? You are so twisted it's a wonder you can type. They have done nothing to support any allegations of illegal activity or personal lobbying. As I said: unintelligent, unfounded hatred.

"Not sure how this comment is relevant to me or to our discussion"
Plenty of relevance, because you're doing it again when you say: "What difference does it make whether or not I am in favor of an outcome which has less than zero possibility?", and again when you say, "Do you want the U.S. to "win" in Viet Nam? Yes or no? Who cares?" You don't care whether your country wins or not? That is perverse. I'm appalled. You accuse me of being full of hate. Can you see why? There is plenty of opportunity of winning, but the media and people like you encourage our enemy by saying things like what you just said. You accuse Bush of being treasonous... Technically you're not, but there is a difference between someone who commits an act of treason, and who's a traitor. George Bush has the credit of being neither, you don't.

[jdweymouth]

feelfree1:
My point is: if there were no Al Quieda cells in Iraq before we invaded, that's because they operated in plain sight. They hid in plain sight. Cells are only necessary in a country that doesn't support terrorism or the spread of Islam. Therefore, there wouldn't be any cells in Iraq, there would be storefronts that said: 'DeathToTheInfidels Inc'. Understand?

The Supreme Court in 2000 ruled there wouldn't be any more recounts, so since George Bush came out on top of every recount, he won by the Court's standards. He won again undisputedly in 2004, so he%u2019s legitimate by the court%u2019s standard and the people%u2019s standards. I noticed how every time the Republicans win, the democrats start blaming the companies that supply the voting machines, but when the democrats win, the republicans go quietly, honorably, and graciously. In other words the democrats either gloat or scream like bamboos, the republicans either leave power graciously or they enter it graciously. Even if there was voting fraud in the election, that wouldn't be treason, it would simply be a felony punishable by prison. Treason is punishable by death.
On the subject of voting fraud, it's interesting that this last election, a company was nearly indicted for voting fraud in favor of the Democratic Party. However, before legal proceedings could be initiated: the company sold out to another company. The company was a subsidiary of a Venezuelan company. I smell a scandal.

[feelfree1]

jdweymouth,

Re: "I know when liberals start losing an argument; they start looking for errors,"

Not sure how this comment is relevant to me or to our discussion.

Re: "It's a straightforward, yes or no question. Do you want us to win?"

What difference does it make whether or not I am in favor of an outcome which has less than zero possibility?

Do you want the U.S. to "win" in Viet Nam? Yes or no? Who cares?

[jdweymouth]

feelfree1:
I know when liberals start losing an argument; they start looking for errors, and try to elude questions and the point of the argument, so don't try it. I've won enough arguments to know all the tricks.

I wasn't doing it in chronological order. Stop eluding the point, did these things happen: confirm or deny. "What am I talking about?%u201D Do you want us to win the war? It's a straightforward, yes or no question. Do you want us to win?