Some Signs of Success

[T]he best policy for Congressional Democrats and those who oppose the President's high-handedness is not to give in to the Administration's exaggerated and aggressive views about its own power, but rather to repeatedly call the President to account whenever he overreaches. The only way to deal with a bully, it seems, is to stand up to him.

-- Prof. Jack Balkin

The Constitution might be the "law of the land," but the courts are surely not the only place where its tenets are ultimately upheld. Some things are -- surely in practice -- "political questions," that are largely left to the political branches, state and federal. This includes those that rightly (or practicably) are brought to the courts. For instance, abortion rights -- the best path would be to handle them by legislative means. But, leaving it solely to them would deny a full enjoyment of fundamental rights. The courts are a rather blunt instrument and generally take too long to actually prevent various wrongs, though declaratory judgments and such help matters in various cases.

This is surely the case involving "the war on terror," though they both provide important restraints:

FISA law. The details are still a bit hazy, but the President relented, and is now willing (in some form) to submit eavesdropping of American citizens to a secret court that practically always grants such requests. This seemed a no-brainer given the Fourth Amendment (and First when the press and associations are involved) so requires such things. Furthermore, in face of past abuses that are timely given many involved the civil rights movement, Congress itself passed a law setting up the FISA system. The law in question gives things a separation of powers flavor (the President follows the law ... this is why this agreement is not something to be too excited about -- it should be the default).

And, probably is too generous. This was not enough, of course, since the "war on terror" apparently makes statutory and constitutional law defunct. For instance, apparently, it would be problematic to actual accept more powers pursuant to a proposed amendment to the law. When proposed by a member of the Republican controlled Congress, this was rejected. Better to do it without such power and not let anyone know. This is where various constitutional institutions came into play. The media focused on the story, including blogs.* The courts got involved via various means. Congress did as well, it turning out to be politically unsavory to actually give the President such power.

Oh, and the Democrats won control back in November. And, suddenly the President found a way to follow the law. Or, make a decent show of it. Thus, yes, this should not be the end of it. Congress, including the new chairman of the Judiciary Committee Patrick Leahy and the House Intel Committee, S. Reyes, still should have an oversight role. The lawsuits are most probably moot, especially since the President could always decide tomorrow to not follow the law, and chances are the "solution" they set up has some unsavory aspects to them. This underlines why advocacy and media coverage is still important, to fill in the details, and keep the pressure on. The fact they are lying assholes only underline this point.

Disposable prosecutors. A lesser reported story, especially taking the matter as a whole, is the quite remarkable number of U.S. prosecutors that Bush is replacing, some with quite fine reputations. It used to be the rule that such a quick turnaround was not legal without the Senate confirming the replacements. Temporary fill-ins were allowable, but that's it. This is but one of many little ways that the Senate's advise and consent power, a crucial constitutional check on executive power, has traditionally been put in action. But, again but part of a broader theme, this was deemed old news after 9/11. Or, rather, when Republicans were being investigated for criminal charges. Nothing to see here!

This time it was via a late addition to the renewal Patriot Act, slipped in with the help of holier than thou Arlen Specter. And, we see the importance of an open and carefully handled legislative process, especially when dealing with proposed regulations that are particularly significant in some fashion. This includes the problem of little poison pills like these that tend to be sneaked into such omnibus type legislation, only worsened by not having proper time to look over the details. Especially if you aren't a member of the majority party. And/or not having enough legislators (or staff people) doing this in the time supplied. But, hey, it's the "USA PATRIOT Improvement and Reauthorization Act" ... so obviously the move was above board.

Iraq. I wrote yesterday about the fact that a simple nonbinding resolution is in no fashion satisfactory as a response to the new Bush policy (or continuation of the old aka failure). All the same, politically, it is important. It is significant if Congress as a whole officially holds what they have every obligation to announce, given their role as representatives of the population at large that so agrees: the President's path is a failure and bad for the nation. The fact that this will be somewhat bipartisan, since at least a few Republicans agree, only underlines the fact. The cover Lieberman gives them underlines the point in a way that should make this crystal clear: politics includes symbols as well.

But, again, it is not enough. And, Congress will have a chance when the next supplemental funding request comes into play in a few weeks. This hands the Democratic Congress a clear opportunity to set limits. And, the limits really must not simply be for the future -- the "six months" of Thomas Friedman. It can and must include things that come into play right away. Finally, again, the courts served an essential role in this area as well. Various opinions underlined war and/or armed conflict does not hand the President a blank check. This includes both statutory and constitutional limitations, only reinforcing the potential for congressional action here.

A republic with three branches, checking and balancing each other. Simple civics. Not so simple in action.

---

* Thus, a NYT article on the Torture Czar coming in from the the Senate today noted: "The testy exchanges indicated the depths of the controversy the surveillance program has stirred since it was disclosed by The New York Times in late 2005, some four years after the administration authorized it in response to the Sept. 11 attacks."