Who Governs? (That Detainee Bill)

The detainee bill that the Senate approved on Friday is undoubtedly a horrible piece of legislation. Since the final language was only approved late last week, there are probably some terrible parts of the bill we haven't even heard about. However, rather than rehearse the various criticisms that have been made of the bill, we think it's more important to think about what this bill reveals about the political process. First, it is rather transparent that this bill was a piece of crass campaigning by the Republicans leading up to the mid-terms. Consider the following from the Washington Post:

"The legislative action prompted extraordinarily blunt language from House GOP leaders, foreshadowing a major theme for the campaign. Speaker J. Dennis Hastert (R-Ill.) issued a written statement on Wednesday declaring: 'Democrat Minority Leader Nancy Pelosi and 159 of her Democrat colleagues voted today in favor of MORE rights for terrorists.'"

Beyond the sheer cynicism and opportunism of this propaganda campaign, one is struck by the emptiness of the Republican 'platform'. As we have discussed before, the Republicans have turned to the national security issue in the last months out of pure political desperation. For the mid-terms, they have substituted fear for political principle.

This is fairly self-evident, but there is more to the political dancing on the Hill. Consider the following action taken by Senator Arlen Specter (R-Pa.):

"Judiciary Committee Chairman Arlen Specter (R-Pa.) voted for the bill after telling reporters earlier that he would oppose it because it is "patently unconstitutional on its face." He cited its denial of the habeas corpus right to military detainees. In an interview last night, Specter said he decided to back the bill because it has several good items, "and the court will clean it up" by striking the habeas corpus provisions.

Specter's position reveals that the abandonment of principle is not merely a product of mid-term electioneering, but has become part and parcel of our governmental structure. Specter has adopted a position that liberals consistently adopt: The Supreme Court will save us from ourselves. With the ideal of nine judges in robes standing astride the Constitution proclaiming 'thou shalt not pass', representatives often feel quite safe in not having to consider or worry about the deeper principles behind their legislation. Rather, they abandon that responsibility to another branch, seeing in judicial review the permission to become absorbed only with pragmatic and symbolic considerations. They think they can have their cake and eat it too - write bad legislation that looks good, and not have to think about or deal with the bad consequences. It is striking that a Senator made the above comment, because the Senate is supposed to be a deliberative body. But in effect, Specter is saying that judicial review absolves the Senate of having to deliberate very carefully about its own legislation: it's enough that there are 'several good items'. The thrust of this kind of attitude, which is equally and even more common amongst liberals, is that the Judiciary should be part of the legislative process, and that representatives don't really represent. It is the Court that really speaks for the nation, the implication being we shouldn't be too hard on our elected representatives, it really isn't their job to worry about the deeper issues. It is a long, slow path to the Supreme Court, however, and it has at best a spotty history in defending liberty. Politically, it is certainly no substitute for an actual democratic body taking responsibility for governing the nation itself.

In the system of political evasion, the Democrats, our cowardly minority party, take the cake. When a few Republican senators and military lawyers objected to parts of the detainee prosecution plans and the pending bill, the Democrats moved to their preferred position of hoping their opponent does the dirty work for them. Rather than mounting a significant campaign against this bill on their own, the Dems seem to have been banking on Republican internal dissension to sink this legislative ship. Not only was this an losing strategy, it suggested a strange allergy towards political leadership. The Democrats show almost no will to rule at all, nor even a will for a principled defeat!

In this bizarre circus, the most problematic thing is not just that we don't know where anybody really stands, but that nobody particularly wants to take responsibility for their own positions. The very minimal democratic activity of holding one's rulers to account is difficult when it is hard to tell who governs.