Courts the Boss of Congress?

While the their coverage of the NSA wiretapping bills in the New York Times and the Washington
Post largely focus on how the midterm elections are affecting votes, Professor Doug Kriner, professor of political science at Boston University, sees a more interesting separation of powers dance at play, as well.

I started using these wiretapping and military tribunals in my classes as examples of unilateral presidential power and whether and when we would see other branches would step in to check him.

And the expectation was that there were some things Congress can do. But it was a stretch to show that Congress was having an influence.

What happened is that the courts stepped in and fundamentally forced Congress to take up these issues. Is Congress going to act to preserve its institutional prerogative or abrogate them to the president?

That's interesting because normally the political science literature has it that the courts are the weakest branch. The courts have been reluctant in the past to step in and resolve these disputes between presidential power and congressional power when Congress hasn't acted and the President has ignored them.

Now Congress is taking up the tribunal bills because of the Hamdan decision that said the executive branch had to follow the Geneva Conventions (at least in terms of how it dealt with tribunals). Meanwhile, several of the court challenges to the NSA warrantless wiretapping program have survived the initial government claims of state secrets, and one district court judge found the program unconstitutional, without even having seen the details.

The first bill on military tribunals came out in 2001 and these measures have been floating around. But now Congress is going to deal with them. The DeWine NSA bill was introduced in March, that was supposed to be a grand compromise, but no one did anything with it until the court forced their hand [Detroit ruling that NSA warrantless wiretapping was illegal] and that energized Democrats with the Feinstein bill (which loosens some minor FISA restrictions, but implicitly calls the NSA program illegal).

The original opposition that sprang up and reared its head at that first Judiciary committee hearing [on NSA wiretaps] when Gonzales appeared before them. A lot of that seems to have evaporated.

But tribunals somehow stick. Is it because you have uniformed military officers coming before Congress saying you shouldn't be doing this? It may also be that the military order creating the tribunal was made publicly available, so we know the exact details of the program and we've seen all the skeletons in the closet.

With the NSA, maybe the program is as innocuous as the administration makes it out to be, and in that case, most Americans are willing to make that trade-off, but we simply don't know.

Photo: dbking