Nice Plan Mr. President…Sure Hope It Lasts
I’ve mentioned before that one of the greatest threats to liberty is the imperial presidency. Once the executive gathers up power, it is – like any other human institution – loath to give it up. The irony of course is that all this talk of “limited government” means nothing if the presidency and its extension in the military/national security apparatus aren’t checked. The genius of our government and our constitution was never so much in the limiting of the welfare state or the limiting of the federal government, but rather in the checks and balances between the different branches of government. Far more vital is our protection of those checks and balances than in some artificial “limiting” of the welfare state.
Unlike ED I agree with most (though not all) of the President’s framework for detentions, closing Gitmo, trials, and so forth. [Text of Obama’s speech here].
Still in the end it doesn’t really matter. Or at least only matters until the point at which (in 2012 or 2016) the current President is no longer President. The next guy/gal to inherit the office can simply undo everything Obama has done and if s/he wants re-do everything Bush has done. Or something even worse. [Imagine a President Palin on detention/torture policies…shudder shudder]. And that is even giving the President the benefit of the doubt that he will (basically) follow his own policy, that his actions match his words (a fairly big if to be sure).
Even then it still doesn’t matter because, and here I’m mounting my hobby horse on the soapbox, this is the job of Congress. This is not the Executive’s job however much I may appreciate Obama’s change of policy. You know it’s bad when Antonin Scalia–Scalia!!!–calls out Congress for not doing it’s job on protection of civil liberties.
However much I find myself in agreement with Obama’s basic instincts on all this (and again in large measure I do) his actions continue to embed the poisonous precedent that the determination of policy on this issue is subject to the whim of The Executive–each succeeding Executive that is. It is not permanent enough and invests far too much power in one individual.
We need a (yes I’m going to say it) bipartisan consensus legal framework set by Congress that will cover over the rule of both parties in the Executive (and Congress for that matter) throughout this era of geopolitics. Something like the containment policy of Keenan that stuck through both Republican and Democratic administrations.
Congress legislating an overarching framework for GWOT or “overseas contingency operations” (or whatever you call it) is the only way to begin to tamp down the Imperial Executive–even a good-natured one is still an imperial one. Though weirdly an imperial one with no power beyond its termed period of office. A time-limited Imperium I suppose.
Drafting such legislation will be basically impossible given A)the fecklessness of Congress as well as B)the stupidity of the Cable News punditeriat who gift us with deep intellectual thought experiments (that Einstein would undoubtedly be proud of) like how if Khalid Sheik Mohammed were sent to Pensacola al-Qaeda might bomb it. I mean think of it, AQ might even send Br. K a text message first to give him a heads up about the coming jail-break—KSM, come 4 u 2nite…lol OBL :>
Until that day, we will continue with this inane (and ultimately destructive) dog and pony show of The Executive trying something and perhaps eventually getting shut down by the Supreme Court. The Supreme Court can check the Executive but not tell the President what to do instead. Because as the conservatives are always telling me judges can’t legislate from the brench. Legislating is the job of the aptly name legislators. As the cliche says it takes three legs for the stool to stand. Right now the only stool in this equation is the horse s–t passing for actual debate & governance on a crucial political issue.