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Government's Battle Of The Branches

Attorney Andrew Cohen analyzes legal issues for CBS News and

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.