The Toll of Congressional Inaction on National Security Law
By Tommy Brown
Last week the Center for the Study of American Democracy hosted former New York Times correspondent David Shipler on campus to discuss his new book, Rights at Risk. His lecture focused on the balance between liberty and security in a post-9/11 world. This conversation on rights in a new era of conflict is a vital one to have, however late we are to have it.
Mr. Shipler’s concern about the erosion of our rights transcends political parties, and certainly goes beyond the War on Terror. Over the past decade, there has been a constant rumbling in certain corners of the media about the impact our approach to terrorism has had on our own civil liberties, but we have not come close to having the national conversation the situation requires. Without any such dialogue, Congress’ approach to civil liberties will remain the same as it has been the past decade: delegate what it can to the courts, give the Executive branch the ambiguity it asks for, and fail to enact legislative structure to outline limits of governmental actions. Until Congress can muster the political wherewithal to pass legislation providing some sort of legal framework and structure, the President’s actions will live in the murky realm of prerogative power.
To be sure, this is not to say that Congress has done exactly nothing. Congress has passed various legislation defining the nature and use of American power, both before and after 9/11. From the Foreign Intelligence Surveillance Act in the late 1970s, to the recent Patriot Act and various iterations of the Military Commissions Act, such legislation does indeed exist. However, while Congress can certainly be credited with attempting such a legal framework, its legislation has been woefully inadequate. Boumediene v. Bush found the 2006 Military Commissions Act unconstitutional; the Bush administration demonstrated the ease with which it could circumvent the Foreign Intelligence Surveillance Act (FISA) and FISA courts. The increased use by the Obama administration of targeted drone strikes also works to undermine even the limits the executive branch has placed on itself. In the absence of pertinent legislation, Executive Order 11905 and 1603 were issued in 1976 and 1978, respectively, remaining in place as a ban on assassination by anyone “employed by or acting on behalf of the United States government,” yet the Obama administration has been allowed to merely work around the definition of assassination. Another example has been Secretary of Defense Leon Panetta categorizing an attack on our cyber-infrastructure as potentially catastrophic should Congress continue to fail to draft relevant legislation.
Mr. Shipler raised many valid points in his lecture on the erosion of civil liberties in the name of security. However, he failed to direct his audience towards a root cause for this diminishment, other than pointing out that such an imbalance exists. Obviously the American people want to be secure and safe from the threat of violent terrorism; an easy answer to an easy question. Everyone can agree that we all want solutions that will keep the American people safe from harm, protect our civil liberties at home and work towards an effective strategy abroad. And, as any mildly engaged individual can point out, there is not one single solution, opinion or ideological approach that serves as a panacea to this complex problem. However, until Congress begins to discuss these varying approaches with any level of seriousness, we will not see any such national conversation, nor any substantive legislation. My own feelings of what such legislation should be aside, without such legislative framework Congress diminishes its necessary place in the balance and separation of powers. The courts are left with interpreting antiquated legislation in an age of changing conflict. The executive branch, perhaps more worrisome, is only left with the option of prerogative power, embarking deep into legally murky territory. Whether Congress is avoiding the problem due to low political capital or wide ideological divide, there comes a point in the legislative process where necessity overrides such feeble concerns. Congress can stall on such action for the foreseeable future, but we can only stay in this state of legislative ambiguity for so long. The longer Congress remains substantively silent, the more power it delegates to the two other branches of government.