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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, April 29, 2004



Legislatures are, and should be, obliged to fashion rules delineating the search and seizure authority of government officials. General rule of law, structural due process, and separation of powers principles frown on broad legislative abdications. In cases of borderline reasonableness, the less specifically the legislature has considered and authorized the practice in question, the less willing judges and juries should be to uphold the practice.

- Akhil Amar

Congressional Responsibility: An important theme raised during the enemy combatant oral arguments was the role of Congress. Congress surely could pass legislation that makes crystal clear that enemy combatants can have basic rights with U.S. citizens or those picked up on our soil would likely have some more. After all, by the Fourteenth Amendment, citizens of the U.S. have certain privileges and immunities, which Congress has the power (and obligation) to help secure. U.S. citizenship might be alienable, but Padilla and Hamdi surely still have that special rank.

In fact, arguably, current legislation is in place protecting citizens, surely those seized on U.S. soil. The same is probably true as to the Gitmo detainees; a habeas corpus law has been on the book protecting noncitizens since George Washington was in office. The congressional authorization of force probably isn't enough to override such laws, even if they had such power to deprive the constitutional rights of citizens. The fact is, however, Congress has no obligation to leave things so hazy. When basic rights, and this includes the Gitmo detainees, are being ignored, they have a role and obligation in protecting them. Said legislation is clearly legitimate and would help salve the feelings of those who think the details and balancing are too complex for judges to make themselves.

Congress, however, for years has been under the impression that it's too hard to worry about such things. They are under the assumption that trusting the executive is largely enough in matters of foreign policy, and now in many cases domestic matters are included as well [e.g. the Patriot Act]. So, they give executives broad powers or leave chunks of white space, allowing Congress to have it both ways. Sen. Kerry has a lot of fun doing this -- he can support legislation or war resolutions, but give his own reading of them. When the President violates his view of things, Kerry can get all upset. He is far from the only one who plays this game.

I think it is about time to realize that trusting the executive to be reasonable is no long tenable. It never really was, but it's crystal clear now. Congress has an obligation to use their powers properly as well. Legal scholar Akhil Amar argues the people and their representatives have a large constitutionally based role in assuring basic liberties (see opening quote). Such rights are not to be left to the courts or the will of the executive. It is a core responsibility they have surely not properly fulfilled.