Why is Congress so rubbish? And what does this have to do with torture?

An interesting conversation with a potential graduate student yesterday got me thinking about the 1973 War Powers Resolution (WPR). For those unfamiliar, this bill was introduced as an anti-Nixon post-Vietnam bill designed to reassert the power and prerogatives of Congress when it came to waging war, after at least forty years of impingement from the presidency. However, despite being seen as a textbook example of the reassertion of congressional power in the 1970s, the bill in practice actually codified the right of the president to wage war without consulting congress for 60 days – and, in practice, potentially a lot longer. As a result, a bill that was designed to re-empower the legislature did the opposite, and certainly didn't influence the conduct of Reagans’ wars in Central America and the Caribbean, Bush’s war in Panama, Clinton’s wars and near-wars in Haiti, Kosovo, and Iraq, and so on. (As background, academics or obsessives might want to look at Fisher in the Political Science Quarterly in Spring 1998 for more info than I can provide on the resolution.)

Why did congress bungle such a grand missed opportunity? First, because they were more interested in grandstanding than defending the constitution. As a result, most wanted a bill to pass that the press would symbolically recognise as a reassertion of congressional power rather than actually caring about reasserting congressional power. (A similar point could cynically be made about the Boland Amendments about Nicaragua in the Reagan years. Congress wanted to look like it was doing the right thing, so that if and when things went wrong people blamed the president.)

Second, because they wanted to beat up the president. Once Nixon vetoed the bill, it became a great opportunity to defy the president by overriding the veto, so the short term political benefits overrode the obviously poor quality of the legislation.

Third, because they included phrases like ‘imminent threat’ and ‘endangered citizens’ which were ultimately vague enough to be interpreted in all sorts of ways by subsequent presidents.

Underpinning all these problems was the fact that Congress, for all its newfound energy, still lacked the sense of self the Framers had given it in the constitution. After all, the WPR was really only an attempt to reassert the privilege over making the decision to go to war that the Framers had quite clearly asserted in the constitution in the first place. This lack of legislative power meant that not only did Congress fail to fulfil its role at the time, in pretty much every subsequent face-off over the presidential decision to go to war, it continued to behave in a subservient manner.

Why has Congress been like this when it comes to warmaking? Well, two points immediately spring to mind: the power of the media, and the power of party. The way in which a president is able to frame the national security debate, and the way in which the presidential leadership is able to discipline the party structure across all branches of government means that it often doesn’t really matter what laws are on the books: Congress will go with the flow anyway, even if that means not discharging its constitutional responsibility.

What has this to do with torture? Well, ever since I read some of those reprehensible torture memos earlier in the week, I’ve been struggling between two views of Yoo, Bybee et. al. The first might be called the ‘banality of evil' school: that is, such bureaucrats are crucial in facilitating the conduct of extreme and degrading practices on detainees by moving the debate from ethics to law, and their defences that they were only doing their jobs are the classic defence of the corporation man who fails to understand their moral and civic responsibility to humanity. The second is that I have a sneaking suspicion that these functionaries are being sold down the river. In part this is because the real criminals are too powerful to get got. And in part, it's because the whole damn system is culpable for these terrible acts, not just one or two morally compromised and weak-willed functionaries.

And into this second part goes the institution of Congress. They passed the blanket authorization for Bush to go to war, they passed the PATRIOT Act, they passed the 2006 Military Commissions Act. Perhaps some of them, even Democrats who weakly complain that their hands were tied because the Republicans were in charge, might do well to take a moment out from the debate over the torture lawyers, and look at their own role in acquiescing to unquestioned presidential primacy in times of war.

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