October 6, 2005

THE SENATE HAS PASSED a bill setting standards for treatment of detainees regardless of whether they’re covered by the Geneva Convention or not. The White House is resisting.

This resistance seems to me to be a mistake. First — as Lamar Alexander noted on the Senate floor, in a passage I heard on NPR earlier this morning — it is very much the Congress’s responsibility to make decisions like this; the President might do so in the first instance, but we’ve been at war for more than four years and Congress is actually doing its job late, not jumping in to interfere. If the White House thinks that the Senate’s approach is substantively wrong, it should say so, but presenting it as simply an interference with the President’s Commander-in-Chief powers is wrong. Congress is entitled, and in fact obligated, to set standards of this sort. It’s probably also better politically for the White House, since once the legislation is in place complaints about what happened before look a bit ex post facto.

Perhaps current practices are producing a treasure trove of intelligence that this bill would stop, but I doubt that — and if I’m wrong, the Administration should make that case to Congress, not stand on executive prerogatives. And this bill seems to be just what I was calling for way back when — a sensible look at the subject by responsible people, freed of the screeching partisanship that has marked much of the discussion in the punditsphere. That should be rewarded, not blown off.

UPDATE: The Mudville Gazette has a link-rich post full of factual background that’s a must-read on this topic.

ANOTHER UPDATE: The Belgravia Dispatch has much more.

MORE: Juan Non-Volokh writes:

I do not know whether the standard adopted by the Senate is the best approach, but I nonetheless view the vote as a positive development.

If anything, this newfound Congressional willingness to address the rules of detention is long over due. While I certainly believe that the Executive Branch is due a fair degree of deference from the courts in its execution of war-related activities, the Constitution confers the ultimate responsibility for such matters to the legislature. Article I, section 8 explicitly delegates the power “to make Rules concerning captures on Land and Water.” Congress also has the power “to make Rules for the Government and Regulation of the land and naval Forces.” Viewed in this light, Congress is not interfering with executive power. It is exercising a responsibility the Constitution explicitly places in the legislature’s hands.

Absent Congressional enactments specifying how military detainees are to be treated, the precise limits of the executive’s authority are necessarily ambiguous. This ambiguity may give the executive some measure of leeway — a leeway the White House and military apparently want to preserve — but it also has unfortunate consequences. Among other things this ambiguity encourages legal challenges to military operations and invites the courts to second-guess decisions that should be made by the political branches. Insofar as the legislature sets clear rules, there will be less room for the judiciary to interfere. If one fears excessive judicial meddling in the conduct of the war on terror, as I do, one should applaud this development.

Yes, and members of Congress will be responsible for how things work out, not just after-the-fact critics, which is also a good thing.

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