Wilson: Book Review: Is There A Case For Congress?

WILSONFINALSAMPLE.
DOC(DONOTDELETE) 4/27/20113:41:25PM
BookReview:IsThereaCasefor
Congress?
VICTORM.HANSEN&LAWRENCEFRIEDMAN,THECASEFOR
CONGRESS:SEPARATIONOFPOWERSANDTHEWARONTERROR(2009)
BENJAMINWITTES,LAWANDTHELONGWAR:THEFUTUREOFJUSTICE
INTHEAGEOFTERROR(2008)
LEGISLATINGTHEWARONTERRORISM:ANAGENDAFORREFORM
(BenjaminWittesed.,2009)
BENJAMINWITTESETAL.,THEEMERGINGLAWOFDETENTION:THE
GUANTNAMOHABEASCASESASLAWMAKING(2010).
THOMASE.MANN&NORMANORNSTEIN,THEBROKENBRANCH:
HOWCONGRESSISFAILINGAMERICAANDHOWTOGETITBACKON
TRACK(2006)
ELIZABETHA.WILSON

ABSTRACT
Several works by Benjamin Wittes, Victor Hansen & Lawrence

Friedman,andThomasE.Mann&NormanOrnsteinposethequestion:Is
thereacaseforCongress?ThisArticleanalyzestheanswersofHansen&
FriedmaninTheCaseforCongress:SeparationofPowersandtheWaronTerror,
Mann&OrnsteininTheBrokenBranch:HowCongressisFailingAmericaand
HowtoGetitBackonTrack,andBenjaminWittessselectedworkstofurther
assesstheCongresssroleintheWaronTerror.Throughthisexamination,
this Article argues that Wittes and Hansen & Friedman mistakenly
conclude that Congresss biggest failure is passivity, which can be solved
simply through legislation. This Article demonstrates that Congresss
problems are instead structural and run deep, requiring a much greater
overhaulthanWittesorHansen&Friedmanarewillingtoadmit.

Assistant Professor for Human Rights Law, Seton Hall University; Ph.D., University of
Pennsylvania;J.D.,HarvardUniversity.
625
WILSONFINALSAMPLE.DOC(DONOTDELETE) 4/27/20113:41:25PM
626 NewEnglandLawReview v.45|625
INTRODUCTION
T
husfar,liberal,conservative,andmiddleoftheroadassessmentsof
the Bush Administration appear to agree on one thing: Congress
should have been more involved in fashioning the response of the
United States to the events of September 11th.1 If the failure of Congress
hasbecomesomethingofatruismanditisacommonthreadconnecting
Victor Hansen & Lawrence Friedmans The Case for Congress with the
variouswritingsoftheprolificBrookingspunditBenjaminWittesitstill
remains to be elucidated preciselywhy Congress failed. Did Congressfail
toassertitselfbecauseitisaweakinstitution?Hasitbeenhobbledbythe
lack of real campaign finance reform? By redistricting of congressional
districts until incumbents run virtually unopposed? By two decades of
Supreme Court jurisprudence that cut back Congresss power to legislate
and returned that power to the states? Did Congress fail to assert itself
because it was kept in the dark by a secretive and monomaniacal
executive? Or did it in fact tacitly approve of the Bush Administrations
policies,andwasitssilencethereforetantamounttoconsent?Mostscholars
and critics of post9/11 policies have focused on the role of the Office of
Legal Counsel in underwriting Bush Administration policies.2 Much less
hasbeenwritten,evenbycriticsexplicitlymakingthecaseforCongress,
abouttheroleplayedbyCongressinpost9/11policymaking.ThisArticle
reviews these recent books and uses them as an opportunity to further
assess the role of Congress in the recent War on Terror, concluding that
both Wittes and Hansen & Friedman are mistaken in viewing Congresss
biggest failure as passivity; moreover, it argues that the formalistic
solutionstheyproposefallshortofaddressingthestructuralproblemsthat
have produced a legislative branch lacking in both vision and moral
leadership.
1StevenI.Vladeck,TheLongWar,theFederalCourts,andtheNecessity/LegalityParadox,43U.
RICH. L. REV. 893, 89394 (2009) ([T]he argument that things would be different if the
political branches had acted in concertand if the President had not claimed such an
unprecedented degree of inherent constitutional authorityhas taken on an unassailable (if
nottautological)quality.).
2See Sudha Setty, No More Secret Laws: How Transparancy of Executive Branch Legal Policy
DoesntLettheTerroristsWin,57U.KAN.L.REV.579,57980(2008).Settyarguesthat:
[H]istorical pattern[s] of politicization of executive branch legal policy
duringawarorarmedconflict...[and]secrecyinthedevelopmentand
implementationoflegalpolicyrunsafouloftheruleoflaw,compromises
thequalityoflegalpolicybeinggeneratedbytheOfficeofLegalCounsel,
and undermines public confidence in the integrity of executive branch
constitutionalinterpretation.
Id.at580.
2011 Is There a Case for Congress? 627
The books discussed here clarify what is at stake in evaluating any

case for Congress. Wittes has long advocated for congressional
institutionalization of a new domestic legal architecture (accomplished
through national security courts and indefinite detention, among other
things) to address what he considers the hybrid nature of the conflict
withAlQaedaandotherIslamicterroristgroups.3Atthesametime,hehas
beencriticalofCongressforessentiallyabdicatingitslegislativeroletothe
executive and the judiciary. Hansen & Friedmans lucid monograph
provides a useful counterpoint. They likewise call for greater
Congressional involvement and outline legislative initiatives (in less
detail).But,unlikeWittes,theybelievethatexistinglegislativeframeworks
aregenerallyuptothetaskofaddressingthethreatfromAlQaeda.4
Part I of this Article addresses what the Wittes and Hansen &
Friedmanperspectiveshaveincommon;namely,anaversiontothegoit
aloneapproachtopresidentialauthoritymadebytheBushAdministration
and a sense that the tripartite foundations of the U.S. system of
government call for Congress to play a more active role than it has been
doing since 9/11.5 Part I also addresses where they differtheir reasons
whyCongressshouldhavebeenmoreinvolved.MorethanWittes,Hansen
& Friedman assume that greater Congressional involvement will mean
morerobustoversightoftheexecutiveandgreateraccountability.6
PartIIthencloselyexaminesonespecifictopic,torture,thatdrawsout
theimplicationsofthemajordifferenceinthesecritiquesoutlinedinPartI.
Because Wittes believes that the current conflict with Al Qaeda is
unprecedented, he is utterly unconcerned with accountability.7 But even
the reforms he proposes to the legal framework for interrogation do not
eliminatetheneedforoversightandmechanismsofaccountability.
Part III turns to a contrasting, more holistic treatment of the
3See generally BENJAMIN WITTES, LAW AND THE LONG WAR: THE FUTURE OF JUSTICE IN THE
AGEOFTERROR6871(2008).
4VICTOR M. HANSEN & LAWRENCE FRIEDMAN, THE CASE FOR CONGRESS: SEPARATION OF
POWERS AND THE WAR ON TERROR 127 (2009) ([W]e have maintained that . . . the
constitutionalallocationsofauthorityandtraditionalchecksandbalances,whichhaveserved
usinthepast,provideasufficient meanswithwhichtobothcombatthe threat ofterrorism
andretaintheimportantsenseofaccountability....).
5See id. at 128 ([W]e are making the case for a Congress that is as assertive of its
constitutionally appointed responsibilities as the executive has been of its authority in the
contextofnationalsecurity.);WITTES,supranote3,at6871.
6ThoughoversightresponsibilitiesarenotmandatedbytheConstitution,ithaslongbeen
accepted that oversight is implied in many of Congresss enumerated powers and the
Supreme Court has always upheld Congresss power to conduct oversight. See HANSEN &
FRIEDMAN,supranote4,at131.
7SeeinfraPartII.
contemporaryCongressanddiscussesarecentstudybyThomasMannand
Norman Ornstein, two political scientists, who see a dysfunction that is
morebroadlyinstitutionalinnatureinCongresssfailuretoassertitselfin
theWaronTerror.8AcorrectivetotheformalismofWittessandHansen&
Friedmanscritique,Mann&OrnsteinsbookmakesclearthatCongressas
an institution is beset with structural problems that no approach merely
focusedonlegislativesuggestionscanaddress.EvenHansen&Friedman
do not take full measure of the practical unlikelihood that greater
congressional involvement will result in adequate oversight of the
executive.
I. ApproachtoSeparationofPowers
BothWittesandHansen&FriedmanfoundtheircasesforCongresson
a similar faith in what might be called structural idealism: The framers
trustedthatbetterpolicieswillresultwhenCongressholdshearings,takes
evidence, and meets as a deliberative body to discuss and debate the
potential costs and benefits of various policy positions.9 Both authors
portray Congress through somewhat rosecolored glasses as a site of
political legitimacy and order, where dulyappointed representatives
debateweightyissuesandaskprobingquestions.10Theirdifferenceliesin
what they identify as the consequence of Congress failing to fulfill its
constitutionalduty.
A. BalancingExecutivePower
Witteshaslongtriedtopositionhimselfinamiddlegroundbetween
VicePresidentCheneysworkthedarksideapproachandthegroundheld
8SeeinfraPartIII.
9LEGISLATINGTHE WARON TERROR: AN AGENDAFOR REFORM 3 (BenjaminWittesed., 2009)
[hereinafterLEGISLATINGTHE WARON TERROR];compareHANSEN & FRIEDMAN,supranote4,at

1819,withLEGISLATINGTHE WARON TERROR, supra,at3(Whatbindstheseauthorstogether
is not the programmatic aspects of their policy prescriptions but the belief in the value of
legislative action to help shape the contours of the continuing U.S. confrontation with
terrorism.).
10This characterization may seem unfair to Wittes, in particular, who begins his chapter
entitled The Case for Congress by acknowledging it is unlikely that Congress will
suddenly arise from a long slumber and begin energetically writing imaginative new laws,
forcing them down an unwilling presidents throat and stunning the federal courts into
deference. WITTES, supra note 3, at 134. His idealism is not so much naivet about how
Congress actually works as a belief that congressional involvement itself bestows political
legitimacy.WittesscaseforCongress,asheadmits,isbydefault.Whatisimportanthereis
thatWittesssummaryofhowCongressactswhenitisactingservileanddeferentialisnearly
indistinguishablefromhowitactsinhisprescriptionforsuccess.Itismorelikelythatsome
Presidentwill....Id.
by civil libertarians, insisting that it is possible to critique the unilateral

approach of the Bush Administration without necessarily objecting to all,
orevenmost,oftheBushantiterrorismagenda.11Indoingso,hehasoften
irritated civilliberties advocates by putting a veneer of rationality (and
often much more than a veneer) on policies that violate international
humanrights standards.12 Anyone engaged in the debates on post9/11
counterterrorismpolicywoulddowelltoreadhisworkcarefully.13
Wittes feels strongly that Congress abdicated its legislative role and
passively let law emerge through a checkandmate process between the
President and the courts. Wittess views on separation of powers in the
post9/11worldwerefirstcomprehensivelyelaboratedinLawandtheLong
War:TheFutureofJusticeintheAgeofTerror,apolemicintended,atleastin
part, to make the case for a rebalancing of the separation of powers after
the unilateral arrogationsof presidential authorityby President Bush and
hiszealouslegaladvisors.14Indeed, chapter five of that work is expressly
titledTheCaseforCongress.15Heislessdissatisfiedwiththesubstance
ofthelawandpolicythatemergedthanwiththelackofpublicdeliberation
of the policies. According to Wittes, deliberation is the legislative act par
excellence, and it is essential to crystallizing a national consensus
regardinginterrogation.16
TheopeningchaptersofHansen&FriedmansCaseforCongresssetout
their understanding of the constitutional framework for separation of
11Id.at4445.
12See, e.g., GaborRona, Ben Wittes Redux: Another Solution in Search of a Problem?, HUM.
RTS. FIRST (Dec. 13, 2010), http://www.humanrightsfirst.org/2010/12/13/benwittesredux

anothersolutioninsearchofaproblem/; David Tarrell, Benjamin Wittes Prefers Civility
Over Law, English Language, IN THE MOMENT: A NEBRASKA CRIM. DEF. BLOG (Jan. 16, 2011,
10:25 PM), http://www.nelawyer.blogspot.com/2011/01/benjaminwittespreferscivility
over.html.
13HefirstoutlinedhisideasinLawandtheLongWarandin2009broughttogetheragroup
ofleadingscholarsandpractitionerstomapoutthatmiddleroadandoutlinemoreconcrete
andspecificlegislativeproposalsforCongresstoconsider.SeegenerallyLEGISLATINGTHEWAR
ONTERROR,supranote9.Whileperhapsitistechnicallytruethatsomeofthepolicyproposals
advocated in Legislating the War on Terror are arguably inconsistent with one another, this
collectionbasicallyrepresentsthemiddlegroundthatWittesistryingtocarveout.Seeid.at
3.Noneofthecontributors,forexample,arguethatIslamicterrorismshouldbeseensolelyas
a criminaljustice issue, or that the United States should not utilize some form of indefinite
detention.Seegenerallyid.Thoughthelistofcontributorscontainspreeminentacademicsand
legalpractitioners,noneoftheauthorshaverepresentedanyofthedetaineesinGuantnamo
Bay.Seeid.at40103.
14WITTES,supranote3,at89.
15Id.at131.
16Seeid.at298.
powersinthenationalsecuritycontext.17InthecontextoftheGuantnamo
habeas litigation, the Obama Administration has abandoned basing its
authorityontheinherentArticleIIpowersofthePresidentandnowsolely
rests its authority on the Authorization for Use of Military Force
(AUMF).18IfHansen&Friedmansanalysisseemssomewhatbelatedas
aresult,theyremindusthatexpansiveviewsofpresidentialauthorityare
still being expounded by scholars and jurists such as John Yoo, Richard
Posner, and John Eastman.19 Another turn of the political wheel could
sweepproponentsofsuchexpansiveviewsbackintopower.However,in
terms of theory, Hansen & Friedmans constitutional analysis in chapter
onedoesnotaddagreatdealtoourunderstandingoftheidealallocation
of separation of powers with respect to national security. Indeed, for the
mostpart,theyseemtoadopttheconclusionsofDavidBarronandMartin
Ledermans magisterial study of the Commander in Chief authority by
assertingthatthePresidenthastheprerogativeofsuperintendenceover
national security and foreign affairs. To those conclusions, Hansen &
Friedman add brief discussions of Youngstown Sheet and Tube Co. v.
Sawyer,20Hamdanv.Rumsfeld,21andMedellnv.Texas22forsupport.23
Theirsecondchapterisdevotedtoderivingameansofdelimitingthe
exigentcircumstancesunderwhichthePresidentmightlegitimatelyact
withoutcongressionalauthorization.24Strangely,Hansen&Friedmanrely
on the Supreme Courts Fourth Amendment jurisprudence,25 while
17SeeHANSEN&FRIEDMAN,supranote4,at146.
18AuthorizationforUseofMilitaryForce,Pub.L.No.10740,2,115Stat.224,224(2001);
Respondents Memorandum Regarding the Govts Detention Auth. Relative to Detainees

HeldatGuantnamoBayat1,InreGuantnamoBayDetaineeCases(D.D.C.Mar.13,2009)
(No. 08442), available at http://www.scotusblog.com/wp/wpcontent/uploads/ 2009/03/doj
detainauthority31309.pdf.
19HANSEN & FRIEDMAN, supra note 4, at 89 (discussing arguments for broad executive
authorityinrespecttonationalsecurity).
20343U.S.579,58788(1952)(IntheframeworkofourConstitution,thePresidentspower
toseethatthelawsarefaithfullyexecutedrefutestheideathatheistobealawmaker.).
21548U.S.557,59394(2006)(Neither[TheAUMFortheDTA]...expandsthePresidents
authoritytoconvenesuchcommissions.).
22552U.S.491,525(2008).
23HANSEN & FRIEDMAN,supranote4,at12(citingDavidJ.Barron&MartinS.Lederman,
The Commander in Chief at the Lowest EbbFraming the Problem, Doctrine, and Original
Understanding,121HARV.L.REV.689,696(2008)).Itisalittlesurprisingthat,whilecitingmore
than once from the Law Stories series, Hansen & Friedman do not refer to Harold Kohs
National Security Constitution, which notes the [P]residents few and the Congresss many
enumerated foreign affairs powers. HAROLD H. KOH, THE NATIONAL SECURITY
CONSTITUTION:SHARINGPOWERAFTERTHEIRANCONTRAAFFAIR68(1990).
24HANSEN&FRIEDMAN,supranote4,at2122.
25Seeid.at2833.
ignoringtheCourtsdecisionnottograntcertiorariinACLUv.NSA,acase
actuallyaboutwarrantlesswiretapping.26
B. CongresssOversightRole
The similarities between Wittess and Hansen & Friedmans cases for
Congress end with faith in structuralidealism.Although both Wittes and
Hanson & Friedman agree that Congress is a better lawmaker than the
executive (not just a more constitutional one), they differ in their reasons
why. While Hansen & Friedman favor greater congressional oversight in
order to rein in presidential power and hold the executive branch
accountable,27WittesbelievesthatCongresswouldgeneratemorepolitical
andlegallegitimacyforwaronterrorpolicies.28
In Law and the Long War, Wittes does not disagree strongly with the
Bush Administrations specific policies dealing with the threat from Al
Qaeda.Instead,hearguesthattheadministrationmadeamistakebynot,
more willingly and more frequently, asking Congress to create the
monumental lawmaking project that, in Wittess view, the hybrid nature
of the post9/11 conflict seemed to necessitate.29 Oversight is not his
particular concern, and he adduces Congresss general willingness (when
asked)togivePresidentBushexactlywhathewantedasevidencethatthe
executivewouldhaveriskedlittleinaskingCongresstogranttherelevant
authority.30
But,asWitteshimselfrecognizesinanewconclusiontothepaperback
edition of Law and the Long War,31 the world in which he originally
developedhisargumentwasshiftedbytheelectionofBarackObamaand
perhaps even more so by the Supreme Courts decision in Boumediene v.
Bush,whichheldthatGuantnamodetaineeshadaconstitutionalrightto
habeas corpus.32 Increasingly then, Wittes has turned his attention to the
courts,coauthoringareportinearly2010withRobertChesneycalledThe
Emerging Law of Detention: The Guantnamo Habeas Cases as Lawmaking.33
26See, e.g., ACLU v. NSA, 493 F.3d 644, 667 (6th Cir. 2007) (challenging warrantless
wiretapping),cert.denied,552U.S.1179(2008).
29Id.at13334.
30Id.at134.
31 See BENJAMIN WITTES, LAW AND THE LONG WAR: THE FUTURE OF JUSTICE IN THE AGE OF
TERROR(Paperbacked.2009).
32Boumedienev.Bush,553U.S.723,733(2008).
33Benjamin Wittes et al., The Emerging Law of Detention: The Guantnamo Habeas Cases as
Lawmaking (2010), available at http://www.brookings.edu/~/media/Files/rc/papers/2010/0122

_guantanamo_wittes_chesney/0122_guantanamo_wittes_chesney.pdf.
Wittess subtitle borrows from the jurisprudence of presidential powers

andsuggeststhatthecourtsarenowengagedinanenterprisethatshould
moreappropriatelyhavebeenundertakenbyCongress.Asheputsit,the
courts have become default legislators34 that have been delegated the
historicallyremarkabletaskof[d]efiningtherulesofmilitarydetention.35
WittessnarrativeaboutthejudicialrolehasbeenablycriticizedbySteven
L.VladeckinanotherwiseappreciativereviewofLawandtheLongWar.36
Wittes is not a constitutional scholar, and it might be noted that his
argumentrestsonaconceptionofseparationofpowersthatseemsrigidat
times: the legislature makes the law, the executive carries out the law, and
the judiciary applies the law.37 But the United States inherited a common
lawsystem,andcommonlawmeansjudgemadelaw,ifitmeansanything
atall,soitissurprisingthatWittesprovideslittleevidencethatcourtsare
engaged in an altogether novel enterprise. His main argument is that the
legal precedents for the Courts review of military detention are few and
inapposite.38 But conversely, it can be argued that courts know how to
conduct habeas trials, assess dangerousness, and identify criminal
34Id.at1.
35Id.at5.Thischaracterizationmaybecriticizedasbeingmisleading,givenWittessown
recurringclaimthattheconflict with AlQaedaisnoveland hybrid.TheCourts historically

remarkablerolemaybeappropriategiventhehistoricallyremarkablenatureofthisconflict.
36Vladeck sees the Supreme Courts post9/11 jurisprudence as far from activist. See
Vladeck, supra note 1, at 897 ([T]he Supreme Court has been too passive, missing
opportunities to identify limits on the governments authority in a number of cases . . . .
(emphasis added)). Vladeck traces a counternarrative in which the Courts interventions in
the War on Terror have been model[s] of sound judicial restraint and makes the excellent
point that the Supreme Court has denied certiorari in more War on Terror cases than it has
granted. Id. The partial list of cert. denied cases Vladeck usefully compiles include the
following: ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (NSA wiretapping controversy), cert.
denied, 552 U.S. 1179 (2008); ElMasri v. United States, 479 F.3d 296 (4th Cir. 2007)
(extraordinary rendition), cert. denied, 552 U.S. 947 (2007); Padillav. Hanft, 423 F.3d 386 (4th
Cir.2005)(rightsofUSheldenemycombatant),cert.denied,547U.S.1062(2006);Awadallahv.
United States, 349 F.3d 42 (2d Cir. 2003) (scope of material witnesses statute), cert. denied,
543 U.S. 1056 (2005); N.J. Media Grp., Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002) (Dept. of
Justiceauthoritytoclosespecialinterestdeportationhearingstothepublic),cert.denied,538
U.S. 1056 (2003). Others that he overlooks are: Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009)
(actionfordamagesbroughtbyavictimoftheU.S.renditionprogram),cert.denied,130S.Ct.
3409(2010);Rasulv.Rumsfeld,414F.Supp.2d26(D.D.C.2006)(actionfordamagesbrought
by former Guantnamo detainees), cert. denied, 130 S. Ct. 1013 (2009). I would only add that
VladeckperhapsmakestoomuchofaperceivedsimilaritybetweenWittessviewsandthatof
JusticeJacksoninhisfamousKorematsudissent.SeeVladeck,supranote1,at89697.
37Even before President Bush, the use of executive orders rose exponentially after World
WarII.SeeThomasE.Baker,TyrannousLex,82IOWAL.REV.689,709(1997).
38SeeWITTES,supranote3,at15.
conspiracies,39andBoumedieneisnotthefirsttimetheSupremeCourthas
broadlydecidedapoliticallychargedissueandleftthedetailstothelower
courts to work out.40 For example, in the 1950s, the Court upheld the
injunctiontodesegregateschoolswithalldeliberatespeed.41
Fortheirpart,withoutcounterbalancingtheSupremeCourtsnational
security decisions with the cases in which the Court has not granted
certiorari, Hansen & Friedman conclude that the courts have struck the
right balance in deciding presidentialpowers cases in the context of
nationalsecurity.42
The next section turns to a subject that both Wittes and Hansen &
Friedmanfindworthyofdetailedexaminationtorture.43U.S.tortureafter
9/11 is a particularly important point of comparison because it has been
oneofthedominantissuesinscholarlydebateaboutpost9/11policy;the
rhetorical lead of humanrights advocacy, if not the actual focus of much
litigation;44 and the subject of the only chapter in Legislating the War on
Terror cowritten by Wittes. The subject of torture raises the questions of
accountability and whether the separation of powers, as currently
balanced, can provide a check on the executive branch when it acts in a
violationofU.S.law.
II. HoldingtheExecutivetoAccount:Torture
Wittes and Hansen & Friedman decry Congresss passivity with

respect to torture for the same general reasons they decry Congresss
39SeeJudithResnik,Detention,theWaronTerror,andtheFederalCourts,110COLUM. L. REV.
579,58485(2010).
40See,e.g.,Brownv.Bd.ofEduc.,349U.S.294,301(1954).
41Id.
Youngstown,Hamdan,andMedellneachdemonstratethat,whilethe
modern parameters of the respective powers of Congress and the
President may still be the subject of political tensions and serious
academic debate, in the main the Court has declined to deviate from an
understandingofthetextualallocationsofnationalsecurityauthoritythat
favorsactivepoliticalchecksandbalancesonexecutiveauthority.
Id.
43SeeHANSEN&FRIEDMAN,supranote4,at47(addressingtheaftermathofAbuGhraib).
44SeeOrderGrantinginPartandDenyinginPartRespondentsMotionforCertificationof
Jan.31,2005OrdersandforStay,InreGuantnamoDetaineeCases(D.D.C.Feb.3,2005)(No.
02CV0299). Owing to the stay in the In re Guantnamo Detainee Cases, Guantnamo habeas
lawyers were prevented from raising any conditions of confinement issues in conjunction
withthehabeaspetitionsfiledinthewakeoftheSupremeCourtsrulinginRasulv.Bush.542
U.S.466,485(2004)(holdingthatU.S.courtshavejurisdictiontodeterminethelegalityofthe
Executivespotentiallyindefinitedetentionofindividuals).
passivity in general. Wittes argues that Congress should have provided

political legitimacy for new laws governing interrogation in the new War
on Terror,45 while Hansen & Friedman primarily criticize Congress for
exertinginsufficientoversightoverpresidentialaction.46Itakeexceptionto
the formalistic approach of these analyses. Because neither Wittes nor
Hansen & Friedman really delve into the structural liabilities of the
contemporary Congress, their earnest formalistic suggestions of better,
moreideallyframedlegislativeproposalsseemineffectual.
A. WittesArguesforaMiddleGround.
The subject of torture most justifies Wittess claim to occupy the

middleoftheroad between the political left and right. Like President
Bush, Wittes is against torture and apparently feels it is important that
theUnitedStatesprohibitsitasamatteroflaw.47Butwhileheisagainst
torture, his analysis is driven by hardboiled, utilitarian considerations48
thatleadhimtodismisstheprohibitionistviewoftortureprevalentamong
internationallegalscholarsandjuristsasweak...onitsownterms.49Ifa
seniorU.S.officialclaimedthatagiventechniquesavedlives,especially
many lives, Wittes is unwilling to rule out that technique entirely, no
matterhowabusiveitisorhowconjecturalitsclaimofsuccess.50Yettohis
credit, he also acknowledges that no amount of harsh interrogation will
produce good intelligence from someone who does not have it to begin
with,soheisinfavorofapplyingcoercionhighlyselectively.51
These contradictory impulses lead to some convolutions that at times
requireaGPStofollow.Hethinksthemilitaryshouldadherestrictlytothe
ArmyFieldManualandtheGenevaConventions,buthebelievestheCIA
should have a freer hand to use mildly coercive methods52 that are
harsherthanthoseusedbythemilitary,includingyelling,makingthreats,
45See Stuart Taylor Jr. & Benjamin Wittes, Looking Forward, Not Backward: Refining U.S.
InterrogationLaw,inLEGISLATINGTHEWARONTERROR,supranote9,at330.
46HANSEN & FRIEDMAN,supranote4,at128([O]urprimaryconcernhasbeentherelative
unwillingness of Congress during the Bush administration to take up the mantel that the
ConstitutionentruststothisrepresentativebodytobeengagedwiththePresident,toinform
hisdecisionmakingandserveasapoliticalcheckonhisexcesses.).
47SeeTaylor&Wittes,supranote45,at31021.
48See id. at 31011 ([T]he question of whether coercive interrogation should continue
underanycircumstancesdepends,toagreatdegree,on theextenttowhichit mayproduce

lifesavingintelligenceunobtainablebyothermeans.).
49Id.at320.
50Seeid.
51Id. at 32930 (discussing the parameters of legislation that would allow highly coercive
methodsinsomeinstances).
52Id.at333.
disruptingsleeppatternsinacarefullylimitedmanner,denyinghotrations
andcomfortitems,andperhapsforcingprisonerstostandforlongenough
to make them uncomfortable but not so long as to put them in agony.53
Wittesassertsthat,thoughcoercive,thesemethodsshouldnotviolatethe
existing law prohibiting cruel, degrading, and inhuman treatment or the
criminal prohibitions in the AntiTorture Statute54 and the War Crimes
Act.55Atthesametime,headvocatesforabroaderdefinitionoftorturein
theAntiTortureStatutesothatithasgreatereffect.56
Under Wittess framework, Congress should oversee the executive
branchbutonlytoapoint.HearguesthattheCIAshouldberequiredto
draw up a manual like the Army Field Manual and submit it to
congressional intelligence committees for review. This manual should be
made as public as possible, but Congress should authorize the CIA to
deviate from its interrogation manual only on personal order of the
[P]resident, along with a Justice Department memorandum stating that
the proposed interrogation plan violates neither the prohibition against
torture nor the War Crimes Act.57 It is not clear if Wittes would require
those exceptional documents to be public.58 That would mean that under
narrow circumstances, the CIA would be exempted from prosecution for
actsthatconstitutecruelandinhumantreatmentundertheWarCrimes
Act.59Butpresumably,thisexceptionshouldnotextendtotorture,because
he recommends elsewhere that Congress should allow no legal
exception[]totheprohibitionontorture,asthatwouldbeaninvitation
toabuseandanotherdisasterfortheimageoftheUnitedStates.60Though
notwillingtoletitaffecttheUnitedStatessimage,heisalsounwilling
to rule out torture if it is necessary to avert... catastrophe.61 As he
53Taylor&Wittes,supranote45,at333.
54See 18 U.S.C. 2340 (2006) (defining torture as an act committed by a person acting
under the color of law specifically intended to inflict severe physical or mental pain or
suffering...uponanotherperson).
5518U.S.C.2441(2006);Taylor&Wittes,supranote45,at332.
57Id.at33334.
58Wittes saysthat themanualshouldbepublic,sothatitdoesnotappearthatthe United
States is secretly authorizing interrogation practices more brutal than it admits to its own
people and the world at large. Id. at 333 (emphasis added). If the presidential order and
DepartmentofJusticememorandumarenotpublicaswell,thegapbetweenappearanceand
realitywouldremain.
59Seeid.at33334.Atthesametime,Wittesspecificallynotesthattheexceptionshouldnot
be defined by the limits of international law, which is thought by many experts to ban all
highlycoerciveinterrogationmethods.Id.
60Id.at335.
eloquently puts it, he would leave the fate ofa goodcause torturer up to
prosecutorial judgment, public opinion, a defense of necessity, the
commonsenseofjurors,the[P]residentspardonpower,andthejudgment
ofhistory.62Notably,Congressisnotgivenaroleinthisassessment.63
There is much that is reasonable in Wittess discussion. He raises
difficultquestionsfortortureprohibitionists,whilefranklyadmittingthat
[n]either side in thedispute bringsa lot of hard evidence to the table.64
HisproposedamendmentstotheAntiTortureStatuteareunobjectionable.
For example, Wittes suggests that Congress should give some texture to
the word severe in both the general and mental harm aspects of the
definition of torture, by defining severe physical pain or suffering as
physical discomfort of such intensity and duration as to be unendurable
by an average person.65 He also sensibly suggests dropping the
requirementthatthementalharmbeprolonged.66
But do Wittess precise but convoluted details all add up, even in
theory? He explains away Abu Ghraib (describing it as abuse, not
torture)onthebasisofthemistakendecisiontoencouragethemilitaryto
use coercive interrogation techniques on lowvalue detainees.67 The
difficultyreallysetsinwhenweapplyhistheorytothepracticeshewants
to justify, specifically the waterboarding and other measures utilized
against Abu Zubaydah and Khalid Sheik Mohammed (KSM).68 He
defendsthedecisiontousecoerciveinterrogationtechniquesinthecaseof
KSM, but characterizes those techniques in terms of their legal status.69
62Id.at335.
63Seeid.
64Id.at311.Wittescreditsananonymousbook,writtenearlyintheWaronTerror,byan
allegedformerArmyinterrogatorusingthepseudonymChrisMackey,asprovidingevidence
that coercive interrogationthreatening to render to torture and sleep deprivation
worked in obtaining good information. Id. at 312. Mackeys book has been the source of
destructive myths in the War on Terrorism, such as the claim that al Qaeda operatives
weretrainedtomakesuchclaims[oftorture]whethertrueorfalse.Id.at303.Somemilitary
interrogators believe that, as described, Mackey had merely lowlevel credentials as an
interrogatorandthatthetrainingMackeyrecountsinthebookiselementary.Otherevidence
that coercive interrogation has worked in the War on Terror comes from President Bush.
Seeid.at31314.
65Id. at 331;seealso18U.S.C.2340(2006)(definingtorture).Likewise,heproposesthat
mental harm is defined as the infliction of any other techniques [in addition to the four
namedinthestatute]...thatareofsufficientintensityanddurationastobeunendurableby
anaverageperson.Taylor&Wittes,supranote45,at331.
66Id.at331.
67Seeid.at30110.
68Id.at30001.
69Seeid.at301.Atthesametime,WittescaststhetreatmentofKSMinthesamelightasthe
generalprogrambeingrunsecretlybytheCIAatthattime.Seeid.at30001.Heacknowledges
What Wittes dislikes is that the Bush Administration sought legal

justification through secret Office of Legal Counsel (OLC) memoranda,
rather than asking Congress to legislate new rules of interrogation.70
However, he does not pull back from the OLCs authorization of
waterboarding; and, in a strange quibble, he clarifies that the reports
sayingthatAbuZubaydahwaswaterboarded83timesandKSM183times
refertothenumberofspecificinstancesofpouringwaterontotheirfaces,
not the number of waterboarding sessions.71 He only flinches slightly
when recounting the leaked International Committee of the Red Cross
(ICRC) reports that described specific methods of sleep deprivation
usedshacklingdetaineestoabarorhookintheceilingabovethehead
forperiodsrangingfromtwoorthreedayscontinuously,andforuptotwo
or three months intermittently.72 This is a small moment when he stops
relying on official documents and takes account of the perspective of
victims. Throughout the entire essay, Wittes avoids stating where he
would place waterboarding on his proposed continuum from mildly
coercivetechniquestotorture.73Evenignoringthenumberofassumptions
going into Wittess characterization of KSMas close to a ticking time
bombasU.S.interrogatorshavecomeintherealworld74Wittescannot
squarethiscircle:(1)hewantstojustifythetreatmentofKSM;(2)hewants
tocharacterizethattreatmentasneartortureorworse;75and(3)hedoes
notwanttojustifytorture.HeneverstateswhetherthetreatmentofKSM
wasneartortureorworse.76IfWittesindeedwouldcharacterizeitas
worse, then a criminal act was committed. If a criminal act was
thattheboundarybetweencruelandinhumantreatmentandtortureisunsettledlegally,and
thereisapassingreferencetotheCIAsneedtousehighlycoercivemethodsamountingto
neartortureorworse.Id.at301.
70Id. at 298. Unlike most readers of the torture memos, Wittes finds in them a highly
controlledandregulatedbrutalitythatwasnotusedwantonly.Id.at29899.
72Id.(footnoteomitted).
73At the beginning of the essay, he outlines his conclusions without mentioning
waterboarding.Helaterdefineshistermswithoutmentioningwaterboarding,distinguishing
among cruel, inhuman, or degrading treatment, highly coercive and brutal treatment
(used interchangeably to refer to methods that might reasonably be classified by some as
torture and by others as [cruel, inhuman, or degrading],), and mildly coercive treatment
(whichincludesthreats,isolation,[and]mildsleepdeprivation).Id.at295.
74Id. at 300 (noting that KSM probably knew more than anyone else alive about any
planned attacks and where to find other key terrorists). If interrogators stuck to the kid
gloveinterrogationrules...thistough,committedjihadistwasnotabouttobetrayhiscohorts
to his hated enemies. Nor was there much chance that mildly coercive interrogation
techniqueswouldbreakhim.Id.at301.
75Seeid.
76Seeid.
committed according to Wittess own definition of torture, then

accountabilityofthoseresponsiblebecomesapressingissue.77
TheUnitedNationsConventionAgainstTorture(CAT)obligesstate
partiestoinvestigateallegedtortureandtoprosecuteifwarranted.78Nota
word in any of Wittess works is devoted to whether the actions of
American military personnel in Abu Ghraib violated the AntiTorture
Statute. Not a word is devoted to the immunity granted by the Military
CommissionsAct.79ButifWittessdefinitionoftortureisappliedandthe
actsagainstZubaydahandKSMqualifyastorture,acompleteanalysisof
investigation requirements and potential immunity is essential to an
examinationofcongressionalactioninpost9/11policy.
AtnopointinLawandtheLongWarorLegislatingtheWaronTerrordo
Wittes or any of his cocontributors address the question of whether
anyoneshouldbeprosecuted,oreveninvestigated,foranyofthedeaths,
physicalinjuries,orpsychologicalorreputationalharmsresultingfromthe
post9/11U.S.interrogationpolicyofeithertheCIAortheDepartmentof
Defense. Wittes is so uninterested in accountability that he does not even
feel burdened to explain why he is uninterested. Because Wittes is a
fervent,ifnuanced,subscribertotheviewthat9/11changedeverything,
it is safe to assume that he would likely say that the legal framework
createdtoensureaccountabilityfortortureisinapplicabletopost9/11acts,
despite his silence on the issue. As a defender of this changed reality,
77Wittesisintellectuallyhonestenoughatthebeginningofhisanalysistoadmitthatthose
whowanttotreadthemiddleoftheroadwhenitcomestointerrogationaretemptedtoslip
intoevasionsof[their]own.Taylor&Wittes,supranote45,at294.
One temptation is to disavow torture, which is a federal crime, while
gravitating toward very narrow definitions of it so as to leave room for
highly coercive interrogations in the most dire and urgent emergencies
[thetorturememoapproach]....Asecondtemptationistoclingtothe
perhapsunrealistichopethatalimiteddoseofcoercionmightbreakthe
resistance of and extract lifesaving information from hardened terrorists
without crossing the line by inflicting pain so severe as to constitute
torture.Athirdtemptationistoglossoverthedifficultyofdrawingclear
linesbetweenthetheoreticallysmallnumberofprisonerswhoseemmost
likelytohavelifesavinginformationandthemanywhojustmighthaveit.
Id. at 29495. It is admirable that Wittes is selfreflective and subtle enough to flag these
potentialpitfalls,butitwouldhavebeenevenbetterhadhereturnedtothemattheendofhis
essayandaskedwhetherhesucceededinavoidingthem.
78United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
TreatmentorPunishment,art.6,12,Dec.10,1984,1465U.N.T.S.85(enteredintoforceJune26,
1987)[hereinafterConventionAgainstTorture].
79SeeMilitaryCommissionsActof2006,Pub.L.No.109366,120Stat.2636(2006).Wittes
devotes no time to this, even if, as Wittes notes, the U.S. Senate attached reservations to the
CAT,narrowingthedefinitionoftorture.
Witteswouldprobablysupportthisargumentusingthesamereasonsthat
the Bush Administration used to argue that the Geneva Conventions did
notapplytoterrorismsuspectsheldasdetaineesinU.S.custody.80
ForallthetwistsandturnsinWittessdiscussionoftorture,hepretty
closely agrees with whatCongresslegislated during the Bush years, even
whenthatlegislationwasmoreofanafterthefactratificationofexecutive
policy rather than a forwardlooking act of vision.81 What he finds
problematic is the process. According to Wittes, the Bush Administration
should have asked Congress to legislate rules for ordinary and
extraordinarydetainees.Unfortunately,Wittesdoesnotclarifyhowbetter
legislation will inspire Congress to meet its constitutional duty in the
future.
B. Hansen&FriedmanArgueforInvestigations.
Whenitcomestotortureandinterrogation,Hansen&Friedmanfollow
a less convoluted route, partly because they do not pull at any of the
difficult, definitional hairs that Wittes tries to split. They identify an
entirelydifferentfailureonCongressspartthefailuretoconveneafull,
comprehensive,andindependentinvestigationintothereportedabuse.82
Congress held a few hearings after theinitialdisclosures of abuse at Abu
Ghraib,butitsoversightwaslimitedtolookingovertheshouldersofthe
interrogators, reviewing the reports, and asking questions of the
investigators.83SincethePentagonplacedlimitsontheinvestigativescope
ofinternalDepartmentofDefenseinvestigationssuchasthosecarriedout
byGeneralAntonioTaguba,failingtoconveneitsowncommissionmeant
that Congress did not have information regarding the responsibility of
senior authority in the chain of command for the Abu Ghraib abuses.
Hansen&Friedmancanbefaultedhereforbeingoverlyconclusoryinthis
80See Press Release, U.S. Dept of State, White House Press Secy Announcement of
President Bushs Determination Re: Legal Status of Taliban and Al Qaeda Detainees (Feb. 7,
2002),availableathttp://www.state.gov/s/l/38727.htm.
81For Wittes, the Detainee Treatment Act (DTA) struck an acceptable balance between
themilitary(requiredtostayclean)andtheCIA(allowedtodothedirtywork).Despite
itsapparentsweep,theDTAdidnot,asWittesnotes,immediatelyshutdowntheblacksites.
SeeTaylor&Wittes,supranote45,at290.IttooktheSupremeCourtsdecisioninHamdanv.
RumsfeldtoshutthesitesdownbyholdingthatCommonArticle3oftheGenevaConventions
appliedtotheconflictwithAlQaeda.See548U.S.557,62830(2006).TheDTAprohibitedthe
conduct but the Hamdan decision opened a path to prosecution, since the War Crimes Act
makesviolationsofCommonArticle3afederalcrime.SeeWarCrimesAct,18U.S.C.2441
(2006).WittessearlyappraisaloftheObamaAdministrationwasthatitwenttoofarinsetting
limitsontheCIA.SeeTaylor&Wittes,supranote45,at329.
83Id.
discussion,astheynevercitedirectlyfromthetestimonyrecordorspecify
thedatesonwhichhearingswereheldoronwhichcommitteesconvened
thehearings.84Directquotationandcitationwouldhavebeenparticularly
important to this part of their argument to support the assertion that the
distinctionwasmadeandtounderstanditsmeaningincontext.
Hansen & Friedman also criticize members of Congress for making a
muddled distinction between command responsibility and command
culpability when they interviewed witnesses during the Abu Ghraib
hearings.85ButbecauseHansen&Friedmandonotquotedirectlyfromthe
record, it is impossible to understand what the members who used this
distinction meant by it. Though Hansen & Friedman are correct that
command responsibility is a wellestablished doctrine in customary
international law,86 they do not adequately acknowledge that it is also
controversial, and that the controversy generally centers on the mental
state required to hold commanders culpable for the acts of their
subordinates.87Atthesametime,Hansen&Friedmanarealsocorrectthat
thedoctrineofcommandresponsibilityisnotcodifiedintheUniformCode
ofMilitaryJustice(UCMJ).88
Theconnectiontheydrawbetweenthelackofcongressionaloversight
into Abu Ghraib and the late passage of amendments to the War Crimes
Act that grant immunity to U.S. officials is less convincing.89 Hansen &
Friedman argue that these can be directly linked and that lack of an
independent investigation means that Congress could not... know or
understandthefullimpactthatgrantsofimmunitywouldhave.90
Perhapsthisisaccurate.ButCongresshasalwaysbeenverywillingto
grantimmunitytoU.S.officials,eitherbyprovidinganaffirmativegrantof
immunityorbylimitingthroughreservationtheaccountabilityrequiredby
international treaty obligations. For example, in 1988, Congress
demonstrateditsabilitytolegislativelygrantimmunitywhenitpassedthe
Westfall Amendment to the Federal Tort Claims Act,91 in response to a
84Nor do they even cite to the Congressional Record. See generally id. (providing an
overviewofcongressionalinvolvementorlackthereofinthesituationinAbuGhraib).
85Id.at51.
86Seeid.at56.
87AllisonMarstonDanner&JennyS.Martinez,GuiltyAssociations:JointCriminalEnterprise,
CommandResponsibility,andtheDevelopmentofInternationalCriminalLaw,93CALIF. L. REV. 75,

125(2005).
89Id.at5253.
90Id.at53.
91Westfall Amendment, Pub. L. No. 100694, 5, 1988 H.R. 4612, 4613 (1988) (current
versionat28U.S.C.2679(b)(2006)).
Supreme Court decision that cut back on the breadth of the immunity
available to federal officials in civiltort cases.92 In the course of Waron
Terrorlitigation,thecourtshaveinterpretedtheWestfallAmendmentsoas
to make it an insuperable barrier to compensation suits, even when
broughtbyindividuals,suchasKhaledElMasriorMaherArar,whomthe
United States admitted to wrongfully holding.93 Congress has never so
much as hinted at amending the Westfall Amendment; never so much as
hintedatcompensatingKhalidElMasriorMaharArarforbeingrendered
bytheUnitedStatestoAfghanistanandSyria,respectively;norgiventhe
slightest suggestion thatinnocent individuals wrongfully held deservean
apology.
Moreover, when the Senate ratified the CAT in 1994, it obligated the
United States to provide victims of torture committed within U.S.
territorieswitharemedy.94However,notwithstandingitsratificationofthe
CAT generally, Congress did not pass legislation that implemented that
specific obligation. Further, it entered a reservation to that Article of the
treaty limiting the United Statess obligation to provide a remedy only to
tortureoccurringwithinU.S.territory.Whilethereisgoodreasontoargue
that Congress intended to allow the decision in Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics95 to provide that remedy,96
the Supreme Court has interpreted Bivens narrowly. Some conservative
justices have intimated that if Congress assumed Bivens would fill the
obligationcreatedbytheCAT,Congresswasactingunderamisconception
that Bivens is constitutionally required (created by the Bivens decision
itself).97
92See generally Westfall v. Erwin, 484 U.S. 292 (1988) (curtailing the immunity of federal
officialsinciviltortcases).
93SeeTASK FORCE ON NATL SEC. ANDTHE RULE OF LAW, THE ASSN OFTHE BAROF N.Y.C.,
REAFFIRMING THE U.S. COMMITMENT TO COMMON ARTICLE 3 OF THE GENEVA CONVENTIONS:

AN EXAMINATION OF THE ADVERSE IMPACT OF THE MILITARY COMMUNICATIONS ACT AND THE
EXECUTIVE ORDER GOVERNING CIA INTERROGATIONS 89 (2008), available at http://www.nyc
bar.org/pdf/report/GC_Report0702_all.pdf.
94Convention Against Torture, supra note 78, art. 14. This Article of the CAT is not
geographicallylimited,butuponratificationtheUnitedStatesenteredareservationlimiting
this obligation to torture committed within U.S. territory. MICHAEL JOHN GARCIA, CONG.
RESEARCH SERV., RL 32428, U.N. CONVENTION AGAINST TORTURE (CAT): OVERVIEW AND
APPLICATION TO INTERROGATION TECHNIQUES 10 (2009), available at http://assets.opencrs
.com/rpts/RL32438_20090126.pdf.
95See403U.S.388,39596(1971).
96SeeReplacementBriefforAmiciCuriaeLawProfessorsinSupportofMaherArarat15
16 & n.8, Arar v. Ashcroft, 585 F.3d 559 (N.Y. 2009) (064216cv), available at
http://ccrjustice.org/files/10.28.08%20Law%20Professor%20Amicus%20Brief.pdf.
97See Bivens, 403 U.S. at 41112 (Burger, J., dissenting) (I dissent from todays holding
which judicially creates a damage remedy not provided for by the Constitution and not
In light of their interest in oversight, it is surprising that Hansen &

Friedman do not engage in a more systematic analysis of Congresss
oversight responsibilities and traditions, particularly in the area of post
9/11 national security.98 Congressional oversight of intelligence was
troubled,evenpriortotheattacksbyAlQaeda;the9/11Commission,not
mincingwords,describeditasdysfunctional.99Theoversightprovisions
of the Intelligence Oversight Act have never been followed to the letter
since it was passed in 1980, and congressional oversight in general has
precipitouslydeclinedsincethe1980s.100
Hansen&FriedmanleaptallbuildingsintheirchapteronAbuGhraib
bycriticizingCongressfirstfornotconveninganindependentcommission
aftertheabuseswereleakedbythemedia,andthenformisunderstanding
thedoctrineofcommandresponsibilityandnotcodifyingitintheUCMJ.101
But Hansen & Friedman fail to acknowledge that the UCMJ was first
codifiedin1951afterthedoctrineofcommandresponsibilityhadalready
developed in international law and been recognized by the U.S. Supreme
CourtinInreYamashita.102IfCongressmadetheconsciousdecisionnotto
codify the doctrine of command responsibility, it did so long ago; that
decisionhadnothingtodowithAbuGhraib.PerhapsHansen&Friedman
are correct in asserting that lawmakers evinced a hazy understanding of
thedoctrinebyreferringtoanonexistentdistinctionbetweencommand
liabilityandcommandresponsibilityinquestioningGeneralTaguba.103
enactedbyCongress.).
98Constitutional provisions supporting the power of Congress to oversee the executive
include the following: U.S. CONST.art.I,1(Alllegislativepowershereingrantedshallbe

vestedinaCongressoftheUnitedStates....);id.7,cl.2(discussingtheprocedureforbill
passage);id.8,cl.1(TheCongressshallhavePowerTolayandcollectTaxes....);id.8,
cl. 2 (delimiting Congresss borrowing power); id. 8, cl. 3 (discussing the regulation of
foreignandinterstatecommerce);id.8,cl.4(establishingthenaturalizationpower);id.8,
cl.5(providingthepowertocoinmoneyandregulateforeigncoinvalues);id.8,cl.10(To
define and punish Piracies and Felonies committed on the high Seas . . . .); id. 8, cl. 11
(establishing the power to declare War and related powers); id. 8, cl. 12 (To raise and
supportArmies....);id.8,cl.13(ToprovideandmaintainaNavy.);id.8,cl.14([T]o
makeRulesfortheGovernmentandRegulationofthelandandnavalForces.);id.8,cl.15
([T]o provide for calling forth the Militia to execute the Laws of the Union, suppress
InsurrectionsandrepelInvasions.);id.8,cl.16(providingthepowerstoorganizearmyand
disciplinemilitia);id.8,cl.18(creatingthenecessaryandproperpowertomakelaws).
99RICHARD
A. BEST, JR., CONG. RESEARCH SERV., RL33539, INTELLIGENCE ISSUES FOR
CONGRESS11(2011),availableathttp://www.fas.org/sgp/crs/intel/RL33539.pdf.
100SeeTHOMAS E. MANN & NORMAN J. ORNSTEIN,THE BROKEN BRANCH: HOW CONGRESS IS
FAILINGAMERICAANDHOWTOGETITBACKONTRACK15859(2006).
102See327U.S.1,1011(1945).
103Id.
But correcting that misunderstanding alone will not give Congress the
political will to exert more oversight, conform U.S. law to international
law, or pass legislation that more aggressively holds U.S. officials
responsiblefortheactsoftheirsubordinates.
Behind the efforts of both Wittes and Hansen & Friedman lies a
pleasingbutperhapsultimatelynavefaithinrationaldiscourse:faiththat
ifonesimplycallsattentiontoCongresssfailingsthroughreasoned,well
writtenargumentsandexhortsCongresstodoitsjob,Congresswilllisten
and change its behavior. But rational discourse will not get at the root
causesoftheillnessthatparalyzesCongressbecausethoserootcausesare,
at bottom, political. The Broken Branch, a work by two political scientists,
Thomas Mann & Norman Ornstein, traces Congresss contemporary
malaise to political causes.104 Political scientists by training, Mann &
Ornsteinwritewithadeephistoricalsenseabouttheinternalworkingsof
Congress and see dysfunction where Wittes and Hansen & Friedman see
passivity.105
III. TheInstitutionalDeclineThesis
Mann & Ornsteins The Broken Branch appeared in 2008 to much

acclaim, in part because the authors, though having different political
orientations, concurred in the view that Congress is experiencing a
protracted period of institutional decline that can be tied to the rise of a
newRepublicanpartyafterthemassiveelectoralrealignmentin1980
the socalled Reagan revolution. The nub of their critique is that, for an
overdetermined set of reasons, [m]embers of the majority party,
includingtheleadersofCongress,[now]seethemselvesasfieldlieutenants
inthe[P]residentsarmyfarmorethantheydoasmembersofaseparate
andindependentbranchofgovernment.106Toanextentnotseensincethe
nineteenthcentury,thecontemporaryCongressislockedinbitterpartisan
dispute, with the two parties using hijinks and strongarmed tactics to
push through, or obstruct, legislation. It is not my intention here to add
anything tremendously new to the general critical reception to Mann &
Ornsteinsambitiouswork,ortoparsewhatscholarlynuance,ifany,might
havebeensacrificedincraftingsuchareadablework.Rather,Iwanttouse
the broad themes sounded in their work to underscore my critique of
104MANN&ORNSTEIN,supranote100.
105See id. at 141. Their analysis is persuasive because it relies, whenever possible, on
objective indicators of decline, like the number of experts involved in drafting specialized
bills like the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 or the
numberofoversighthearingsheldduringacongressionalsession.See11U.S.C.101(2006);
MANN&ORNSTEIN,supranote100,at141.
106Seeid.at155.
Wittes and Hansen & Friedman and my suggestion that the legislative
proposalsdiscussedabove,whileadequateinthemselves,willnotleadto
theendofthepassivitytheybemoan.
Mann & Ornsteins historical narrative emphasizes that Congress has
longstruggledtofinditsfootingintheU.S.politicalsystem,107anditwas
notuntilthetwentiethcenturythatCongressfullymatured.Createdfirst
among equals by the Founders, who placed it in the First Article of the
U.S. Constitution, Congress immediately confronted a landscape where
power shifted quickly in a more nationalized direction, giving the
President greater leverage than was perhaps originally intended.
Developments like the creation of standing committees, the formalization
of party leadership (and then subsequent decentralization), and the
passage of rules governing debate were central to creating the legislative
capacity to meet challenges posed by the executive branch.108 All of these
developments survived into the twentieth century and gradually
transformed Congress from a roughandtumble assembly, where
occasionalfisticuffsbrokeout,totheaccomplished,deliberativebodythat
WittesandHansen&Friedmanadmire.
Duringthepost9/11eraoftotalRepublicandominance,itwashardto
remember that Democrats long held a majority in Congress, especially in
the House, where they reigned uninterrupted from 1954 to 1994. But
during that dominant era, Democratic leaders often worked closely with
theirminoritycolleagues,evenwhilecontrollingthecommitteesandthus
theagenda,tofurtherlegislation.109
Both Wittess and Hansen & Friedmans analyses are frustrating
becausetheytendtolookatCongressasasingle,unifiedentity.110Tothese
onedimensional analyses, Mann & Ornsteins analysis is corrective.
ThoughtheConstitutionindeeddoesnotincludeanyreferencestopolitical
107See id. at 1446 (providing an overview of Congresss role in the American political
system).
108TheConstitutiongiveseachchamberofCongressauthoritytodeterminetheRulesof
itsProceedingsbutdoesnotmandatetheparticularsofgovernance.SeeU.S.CONST. art.I,
5,cl.2.
109See Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 HARV. L. REV.
28,61n.143(2004).Bipartisanshipduringthatperiodwasamatterofgrace,especiallyinthe
House, where the minority does not have the power of a filibuster to derail the majoritys
agenda.
110While he explicitly acknowledges that Congress is not a unitary actor, but a sharply
dividedone,WittesgenerallyreferstoCongressintheaggregate:Theaffirmativecasefor
Congresssplayingamajorrole...;OnlyCongresscanultimatelywritethelawofthislong
war...;Congressssecond majorroundoflegislativeactivity. ..;Sincethen, Congress
has passed one additional piece of architecturally significant legislation . . . . WITTES, supra
note3,at13233,138,143.
parties, it is impossible to discuss the contemporary Congress without an

analysisrootedinthestudyofpartydynamics.Mann&Ornsteintracethe
originsofCongressscurrentdysfunctiontothehugeelectoralrealignment
thatoccurredin1980,whenSouthernDemocratsdefectedtotheGrandOld
Party (GOP) and a new breed of conservative arose.111 The radical
conservative movement first made its appearance in Congress with the
election of Newt Gingrich to the House of Representatives in 1978.112 The
movement rose to power with the triumph of Republicans in 1994 and is
still churning with the victories of Tea Party candidates in the recent
midterm elections.113 Excesses invented by Democrats in the last years of
theirdominancewereperfectedbythesenewRepublicans.Infact,Mann&
OrsteinmakenobonesaboutsayingthattheRepublicansaremoreguilty
than the Democratsthough there is plenty of guilt to go around.114 In
contrast,whileHansen&Friedmanacknowledgethatoversightimproved
in the waning days of [Bushs] presidency,115 they do not draw the
obvious conclusion that oversight also improved when Democrats
regainedamajorityintheHouseandtiedintheSenate.116
Knowledgeable insiders might disagree with some of the specifics of
Mann& Ornsteinsanalysisand the weight theygive various factors; but
thevalueoftheirworkisinshowingthatthepassivitynotedbyWittesand
Hansen & Friedman has real structural causes, from developments as
recondite as gerrymandering and redistricting to the incredible shrinking
workweekforCongressandtheriseoftheeternalcampaign.117Mann&
Ornstein point out that, in the House in particular, members of Congress
are reluctant to take risky, potentially unpopular votes because the next
111MANN & ORNSTEIN, supra note 100, at 6465. See generally Pildes, supra note 109
(discussing the congressional overhaul that occurred from the 1950s through the turn of the
century).
112MANN & ORNSTEIN, supra note 100, at 6465. Cf. Robert F. Bauer, The Demise of Reform:
Buckley v. Valeo, The Courts, and the Corruption Rationale, 10 STAN. L. & POLY REV. 11, 15
(1998)(discussingtheinvestigationssurroundingGingrichselectionandthatofotherstothe
U.S. House of Representatives [that would] in the future . . . help create a Republican
majority).
113See,e.g.,MichaelKranish,TeaPartySuccessCouldHurtRomney,BOSTON GLOBE,Nov.5,
2010,atA1.
114MANN&ORNSTEIN,supranote100,at7586.
116For the first six years of the Bush presidencyexcept for a brief period when the
Democrats held a oneseat majority in the Senate from May 2001 to November 2002the
RepublicanscontrolledbothhousesofCongress.JohnAnthonyMaltese,ConfirmationGridlock:
TheFederalJudicialAppointmentsProcessUnderBillClintonandGeorgeW.Bush,5J.APP.PRAC.&
PROCESS1,1(2003).
117SeeMANN&ORNSTEIN,supranote100,at17982,22931.
election cycle begins as soon as the previous one concludes.118 The

inescapable conclusion of their powerful overview is that the failures to
deliberateandoverseetheexecutive,detailedbybothWittesandHansen
& Friedman, are neither new nor specific to the War on Terror, even
thoughthosefailuresmaybeparticularlyimportantinthatcontext.119
Mann & Ornsteins thesis that party leaders now function as
champions of the President rather than stewards of the Congress as an
institution throws the post9/11 Congress into a different light than that
cast by either Wittes or Hansen & Friedman. Unfortunately, Mann &
OrnsteindonotapplytheiranalysisspecificallytotheWaronTerror.Ifthe
Republicanled Congressdid notactively approve the Presidentsactions,
itthrewupashield,sothattherebalancingofconstitutionalpowerswas
left up to the courts.120 Democrats alleged that while in the majority,
Republican members of Congress chairing the military and intelligence
committeeswererefusingtoholdhearingsortousethesubpoenapowerto
compel the Bush Administration to turn over key documents and memos
related to antiterrorism policy.121 Specific examples abound, but a few of
the highlights are the following: After 9/11, the Federal Bureau of
Investigation (FBI) picked up hundreds of MuslimAmericans, some on
terrorismcharges,butthemajoritywereheldforimmigrationoffenseslike
overstaying a visa.122 These individuals, who eventually became known
collectively as the September 11 Detainees, were held secretly and
without charge, sometimes for a matter of months.123 Even after the
Inspector General of the Department of Justice issued a critical report in
April2003identifyingsignificantproblemsinthetreatmentincustodyof
thesedetainees,Congresstooknoactioninresponse.124OnMay12,shortly
118Seeid.
119SeeWITTES,supranote3,at13134.CompareHANSEN&FRIEDMAN,supranote4,at12730,
withMANN&ORNSTEIN,supranote100,at215.
120See Michael Gurovitsch, Levin: Congress Unwilling to Investigate White House, MICHIGAN
DAILY, Apr. 10, 2006, http://www.michigandaily.com/content/levincongressunwilling

investigatewhitehouse.
121Thepowertocallhearingsorsubpoenapowerlieswiththemajorityparty.CarlLevin
voiced such a complaint in remarks made to a political science class in his home state of
Michiganinspring2006.Id.
122HUMAN RTS. WATCH, PRESUMPTION OF GUILT: HUMAN RIGHTS ABUSES OF POST
SEPTEMBER 11 DETAINEES 3 (2002), available at http://www.hrw.org/legacy/reports

/2002/us911/USA0802.pdf.
123Id.
124See OFFICE OF THE INSPECTOR GEN., THE SEPTEMBER 11 DETAINEES: A REVIEW OF THE
TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE

INVESTIGATION OF THE SEPTEMBER 11 ATTACKS 195 (2003), available at http://www.
justice.gov/oig/special/0306/full.pdf (addressing the arrest, processing, charging, and
after60MinutesbroketheAbuGhraibstoryonnetworktelevisiononApril
28, 2004,125 Congress held a closed door screening of many more photos
andvideos,allofwhichwereapparentlyappallingandhorrific.126Yet
CongressdidnotpasstheDetaineeTreatmentAct(DTA)untilDecember
2005,almostayearandahalflater.WhiletheDTArequired,asamatterof
law,thatthemilitaryconformitsinterrogationpracticestotheArmyField
Manual,italsoattemptedtostripfederalcourtsofjurisdictiontohearthe
habeas petitions filed by Guantnamo detainees.127 These petitions arose
fromtheSupremeCourtsdecisioninRasulv.Bushthatthefederalhabeas
statute extended to cover a military base under the complete control of
theUnitedStates.128WhentheSupremeCourtheldinHamdanv.Rumsfeld
that Congress had not spoken clearly enough to give the provision
retrospective effect,129 Congress immediately passed the Military
Commissions Act, making it clear that, yes, it really meant to strip the
courts of jurisdiction.130 Ensuring that the Hamdan decision resulted in no
prosecutions of Bush Administration officials, Congress included a
sweepinggrantofimmunity.
Examining Congresss role very generally, much of the legal
uncertainty generated by post9/11 BushAdministration policies can be
traced to the joint resolution passed by Congress the day after 9/11, the
Authorization for the AUMF.131 The AUMF was succinct but vague: it
clearly gave the President the authority to use force against the
perpetratorsof9/11,butitdidnotclearlyauthorizethePresidenttodetain
suspects indefinitely, to convene military tribunals, or to create lawless
clearanceprocessofSeptember11detainees,butnotlookingintothesecrecysurroundingthe
detentions).
125RebeccaLeung,AbuseofIraqiPOWsbyGIsProbed:60MinutesIIHasExclusiveReporton
AllegedMistreatment,CBSNEWS.COM(Apr.28.2004),http://www.cbsnews.com/stories/2004/04
/27/60II/main614063.shtml.
126Kathy Kiely & William M. Welch, Abu Ghraib Photos Cause Gasps in Congress, USA
TODAY, May 12, 2004, http://www.usatoday.com/news/world/iraq/20040512congress

abuse_x.htm.
127SeeDetaineeTreatmentActof2005,Pub.L.No.109163,1404(a),119Stat.3474,3475
(codifiedat10U.S.C.801(2006)).TheMcCainAmendmenttotheDTAalsobarredtheuseof
cruel,inhuman,anddegradingtreatmentonanydetaineesheldinU.S.custodyanywherein
the world; and it defined cruel, inhuman and degrading as treatment prohibited by the
Fifth,Eighth,andFourteenthAmendments.Id.1403(d).
128See542U.S.466,481(2003).
129Hamdanv.Rumsfeld,548U.S.557,584n.15(2005).
130Military Commissions Act of 2006, Pub. L. No. 109366, 120 Stat. 2636 (codified at 28
U.S.C.2241(2006)).
131AuthorizationforUseofMilitaryForce,Pub.L.No.10740,2,115Stat.224,224(2001);
see also RICHARD F. GRIMMETT, AUTHORIZATION FOR USE OF MILITARY FORCE IN RESPONSE TO
THE9/11ATTACKS(P.L.10740):LEGISLATIVEHISTORY3(2007).
enclaves (socalled black sites) where suspects could be rendered

withoutdueprocessoflaw.132Bynotclarifyingitsintent,Congressallowed
the President to claim that the sweeping powers he sought to exercise in
theWaronTerrorwereinfactauthorizedbyCongress,eveniftheywere
notinherentinhisArticleIIauthority.
At times, the majority in Congress did much more than throw up a
shield. Even when Congress voted on oversight measures, individual
members, intentionally or unintentionally, subverted its oversight. For
example,theDTArequirestheDepartmentofDefensetofileareportwith
Congressdescribingtheproceduresusedtodeterminethestatusofaliens
detainedinthecustodyorunderthephysicalcontroloftheDepartment
ofDefensenotlaterthan180daysaftertheDTAbecamelaw.133Lawyers
alleged that the procedures had not been submitted to Congress as
requiredbylaw;however,thegovernmentmanagedtoproduceacopyof
the written procedures as an exhibit attached to a reply brief and stated
thattheprocedureshadbeensubmittedtoCongressonAugust10,2006.134
The report was filed with Representative Sensenbrenner, a conservative
Republican who was the Chairman of the House Judiciary Committee at
the time.135 Actions such as these raise the suspicion, though not the
certainty,thatatleastsomemembersofCongresswereactivelycolluding
withtheexecutive.
Near the end of their analysis,136 Hansen & Friedman consider (and
immediately dismiss) an argument of collusion by briefly asking whether
Congressdidnotactbecauseitdidnotwanttoact,eitheroutofweakness
or tacit approval of BushAdministration policies.137 Though they admit
thisargumentisnotwithoutmerit,theyconcludethat[t]acitapproval
cannot be attributed to a Congress that was kept in the dark by an
administration that made every effort to expand the authority of the
executiveandthatviewedthepowersoftheCommanderinChiefduring
thewarasvirtuallylimitless.138
132SeeAuthorizationforUseofMilitaryForce2.
133DetaineeTreatmentActof2005,Pub.L.No.109163,1405(a)(1)(B),119Stat.3474,3475
(codifiedat10U.S.C.801(2006)).
134Respondents Reply to Petitioners Reply and Opposition to Respondents Motion to
DismisstheSecondAmendedPetitionat8,Ruzatullahv.Gates(2007)(Civ.No.06CV01707),
available at http://docs.justia.com/cases/federal/districtcourts/districtofcolumbia/dcdce1:2006
cv01707/122762/20/.
135Seeid.
136This chapter recounts how

Congress successfully rebuffed executive efforts to bring
militarylawyersunderthelegalcontrolofcivilianappointedgeneralcounsel.SeeHANSEN &
FRIEDMAN,supranote4,at10926.
137Seeid.
138Id.at109.
The question of Congresss actual knowledge or willful ignorance of

theBushAdministrationdetentionandinterrogationpolicyisperhapsthe
most important question about the Congresss performance in the recent
past that is still left unanswered. Hansen & Friedman do not adduce any
evidence in support of this conclusion and do not ask appropriately
nuanced questions. Did the executive really deprive Congress of
information? On what occasions and with what consequences? What
information, precisely, was omitted? How did the executive deprive
Congress of information, if it did? Did members of Congress resist to the
fullest extent possible? Did they grumble in public but accede in private?
Though a great deal is at stake in the answers to these questions, it will
undoubtedly take a generation of political and legal scholars to piece
together the evidence and write a definitive history of the crucial years
after9/11.
The most important fact to have come to light since Hansen &
Friedman published The Case for Congress is that the CIA briefed at least
some members of Congress, as required by the National Security Act.
These briefing sessions with the Gang of Four included, for a time,
former Speaker Nancy Pelosi, when she was a member of the House
IntelligenceCommittee.139SpeakerPelosiclaimedthattheCIAdidnotfully
informmembersaboutthenatureofenhancedinterrogationtechniques
anddeniedbeinginformedthatwaterboardingwasamongthetechniques
139The White House only briefed the socalled Gang of Four, rather than the full
intelligencecommittees,asrequiredbytheNationalSecurityAct.SeeNationalSecurityActof
1947, ch. 343, 61 Stat. 495, 495 (codified at 50 U.S.C. 413(a)(1) (2006)). The Gang of Four
includes the chairman and two ranking members of the two congressional intelligence
committees. Notifying the Gang of Four in the case of sensitive intelligence gathering
operations has been the practice since the creation of the congressional committees on
intelligencein1980,butthisnoticepracticeisnottextuallybasedintheNationalSecurityAct.
Rather, it is an informal procedure that evolved with consent from both the executive and
legislative branches. ALFRED CUMMING, CONG. RESEARCH SERV., R40698, GANG OF FOUR
CONGRESSIONAL INTELLIGENCE NOTIFICATIONS at1(2010).TheNationalSecurityActrequires
that the entire congressional committee be notified in a timely fashion, with an exception
only for covert actions. The covert action exception requires Congress only to inform the
Gang of Eight of highly sensitive covert operations under limited circumstances. For the
view that the Bush Administration actually used the GangofEight procedure even when it
only briefed four members, see Kathleen Clark, A New Era of Openness?: Disclosing
Intelligence to Congress Under Obama, 26 CONST. COMMENT. 313, 31819 (2010) (citing Pamela
Hess, Michael Hayden: Congress was Informed About Surveillance Program, HUFF POST POLITICS
(July 11, 2009), http://www.huffingtonpost.com/2009/07/11/michaelhaydencongress
w_n_230066.html).FortheviewthatitwasunlawfulfortheBushAdministrationtobriefonly
four members of Congress, see Vicky Divoll, OpEd., Congresss Torture Bubble, N.Y. TIMES,
May13,2009,http://www.nytimes.com/2009/05/13/opinion/13divoll.html.
used.140TheensuingcontroversygatheredsteamwhenCIADirectorLeon
Panetta discovered a secret CIA program, created after 9/11, about which
Congress had never been informed.141 Whether she was told that such
interrogation techniques included waterboarding, or whether she
specificallyaskedwhatqualifiedasenhancedinterrogationmethodsisnot
clearfromthepublicrecord.However,itisclearisthatSpeakerPelosidid
notwritealetterofdissent.142Incontrast,RepresentativeJaneHarmonsent
a letter to Scott Muller, General Counsel for the CIA, for further
clarificationaboutthebriefingsandalsotoinstructtheCIAtopreservethe
videotapes of the waterboarding sessions with Abu Zubaydah.143 Muller
replied with a letter that, according to Harman, only minimally
respondedtoherquestions.144
When Congress does not exercise adequate oversight over the
executive, what then is to be done? Mann & Ornstein ask this question
neartheendofTheBrokenBranchandprovideanarrayofsuggestionsfor
the reform of Congress. Mann & Ornstein also saw in 2006 some hopeful
signs of Congress awakening from its slumber. But, emphatic that the
solution to Congresss problem lies in the political process,145 they
remarked,presciently:
[T]he reality is that presidential leadership, far more than any
otherkind,hasthepotentialtoalterthedynamicofinstitutional
140 See Cheney Ordered CIA to Hide Plan, BBC NEWS (July 13, 2009), http://news.
bbc.co.uk/2/hi/8146466.stm.
141Seeid.
142ThoughinpracticeitisunusualformembersofCongresstoobjecttonationalsecurity
operations,whenmembershavestrenuousobjections,theytypicallywritealetterofdissent.
We know that in 2003, Senator Jay Rockefeller, of the Senate Intelligence Committee, sent a
letterofdissent toVicePresidentCheneyexpressinghis doubtsaboutwhethertheprogram
was legal. Letter from Sen. Jay Rockefeller to Vice Pres. Richard Cheney regarding NSA
Surveillance, Counsel on Foreign Relations (July 17, 2003), available at http://www.talking
pointsmemo.com/docs/rockcheney1.html.
143Letterfrom Rep. Jane Harman, Ranking Democrat, Permanent Select. Comm. on
Intelligence, to Scott Muller, General Counsel, Central Intelligence Agency (Feb. 10, 2003),
available at http://www.house.gov/apps/list/press/ca36_harman/harmanletter.pdf (asking
whetherthemostseniorlevelsoftheWhiteHousehavedeterminedthatthesepracticesare
consistent with the principles and policies of the United States . . . [and whether the
techniqueshave]beenauthorizedandapprovedbythePresident).
144Letter from Scott Muller, General Counsel, Central Intelligence Agency, to Rep. Jane
Harman,RankingDemocrat,PermanentSelect.Comm.onIntelligence(Feb.28,2003),available
athttp://www.house.gov/apps/list/press/ca36_harman/mullerletter.pdf(WhileIdonotthink
itappropriateformetocommentonissuesthatareamatterofpolicy,muchlessthenature
and extent of Executive Branch policy deliberations, I think it would be fair to assume that
policyaswellaslegalmattershavebeenaddressedwithintheExecutiveBranch.).
145Mann&Ornstein,supranote100,at227.
behavior and decision making in American politics and

governance. A different style of leadership, one more inclusive,
lesspartisan,andlessdivisivethanwehaveseeninrecentyears,
couldmakeasignificantdifference.146
Thoughtheyincorrectlyguessedthatacandidatewouldemergefrom
Republican ranks that could build a political center where none now
exists,147 they were right about the appeal of a candidate occupying (or
appearing to occupy) the absent center. However, even though President
Obama arguably has a more inclusive, less partisan governing style, it
has not overcome the rancor in Congress, nor facilitated the passage of a
reform agenda.148 Indeed, it could plausibly be argued that, in view of
President Obamas decisive victory over John McCain and of the long
coattails that returned control of both Houses of Congress to the
DemocraticParty,PresidentObamasparticularstyleofcompromiseonly
emboldenedatemporarilychastenedRepublicanPartytoassertitself.
Obamatookofficewithapublicpromise,memorializedinanexecutive
order, to close Guantnamo within one year, in addition to ambitions to
reformotheraspectsoftheBushlegacy.149Despitethesegrandgesturesat
the beginning of his term, President Obama moved slowly on changing
policies. He did not instruct the Department of Justice line attorneys
engaged in the defense of the U.S. government to abandon any of the
litigation positions or tactics used under President Bush. He apparently
continued a limited rendition program, using Bagram Air Force Base in
Afghanistan as an alternative to the black sites.150 And perhaps most
importantly, he authorized vastly increased use of drone aircraft in
carrying out antiterrorist operations, including the extrajudicial targeting
ofU.S.citizensallegedtobeworkingwithAlQaeda.151
Nowhere was the failure of partisan leadership to lead to wiser
congressional decisionmaking more evident than in the case of
Guantnamo. Despite the continuity in President Obamas approach to
146Id.at229.
147Seeid.at228.
148Seeid.at229.
149See Exec. Order No. 13,492, 74 Fed. Reg. 4897 (Jan. 22, 2009), available at
http://www.whitehouse.gov/the_press_office/ClosureOfGuantanamoDetentionFacilities/.
150See Eric Schmitt, Afghan Prison Poses Problem in Overhaul of Detainee Policy, N.Y. TIMES,
Jan. 26, 2009, http://www.nytimes.com/2009/01/27/washington/27bagram.html?scp=3&sq=

bagram%20air%20force%20base%20as%20alternative%20to%20black%20site%20obama%20us
e&st=cse.
151I refer here particularly to the use of drone aircraft in targeted assassinations. See, e.g.,
DavidE.Anderson,DronesandtheEthicsofWar,PBS.ORG(May14,2010),www.pbs.org/wnet
/religionandethics/episodes/bytopic/international/dronesandtheethicsofwar/6290/
(discussingtheObamaadministrationssupportfordroneuse).
counterterrorism,Republicansquicklymobilizedtoblockkeyelementsof
President Obamas agenda, when those with extreme views strove to stir
up opposition with allegations that he is a Muslim, a socialist, a terrorist,
and a foreigner.152 Congress also clearly sought to prevent President
Obamas relocation efforts of Guantnamo detainees into the United
Stateseither for longterm detention in federal prison or (in the unique
case of the Uighurs) for release. As of June 2010, six pieces of legislation
includedfinancialrestrictionsondetaineetransfersforanypurposeother
thanlegalproceedings.153Congresslaterforbadetheuseoffederalfundsto
repatriatedetaineestocertaincountriesdeemedtobefragileorunstable.154
Both Republicans and Democrats raised a firestorm of opposition to the
suggestionthatKSM,thesupposedmastermindof9/11,betriedinfederal
courtslocatedinNewYorkCity,notfarfromthesiteofthe9/11attacks.155
TobefairtoCongress,thepoliticalclimatebecamemoreadverseafter
the failed, amateurish but nonetheless disturbing, terrorist attempts by
Islamic radicalsthe socalled Underwear Bomber on Christmas Day
2009156 and the Times Square attempt in May 2010.157 In summer 2010, a
waveofIslamophobiasweptthecountryinreactiontotheseattacksandto
the news that a moderate Islamic group proposed building a cultural
center near Ground Zero.158 President Obama signaled that he was not
152See, e.g., CNN Debunks False Report About Obama, CNN.COM (Jan. 23, 2007, 2:01 AM),
http://www.cnn.com/2007/POLITICS/01/22/obama.madrassa/index.html(refutingreportsthat
ObamaattendedaradicalprivateMuslimschoolinhischildhood).
153Supplemental Appropriations Act of 2009, Pub. L. No. 11132, 14103, 123 Stat. 1859,
1920;DepartmentofHomelandSecurityAppropriationsActof2010,Pub.L.No.11183.552,
123Stat.2142,217778;NationalDefenseAuthorizationActforFiscalYear2010,Pub.L.No.
11184,1041,123Stat.2190,245455;DepartmentoftheInterior,Environment,andRelated
Agencies Appropriations Act of 2010, Pub. L. No. 11188, 427, 123 Stat. 2904, 2962;
Consolidated Appropriations Act, Pub. L. No. 111117, 532, 123 Stat. 3034, 3156 (2009);
DepartmentofDefenseAppropriationsActof2010,Pub.L.No.111118,9011,123Stat.3409,
3467.
154IkeSkeltonNationalDefenseAuthorizationActforFiscalYear2011,103233,124Stat.
4137,4351.
155See, e.g., Z. Byron Wolf, Bipartisan Push Builds to Stop Terrorist Trials in Civilian Courts,
ABCNEWS(Feb.2,2010,2:08PM),http://blogs.abcnews.com/thenote/2010/02/bipartisanpush
buildstostopterroristtrialsinciviliancourts.html.
156AnahadOConnor&EricSchmitt,TerrorAttemptSeenasManTriestoIgniteDeviceonJet,
N.Y.TIMES,Dec.25,2009,http://www.nytimes.com/2009/12/26/us/26plane.html.
157AlBaker&WilliamK.Rashbaum,PoliceFindCarBombinTimesSquare,N.Y. TIMES,May
1,2010,http://www.nytimes.com/2010/05/02/nyregion/02timessquare.html.
158See,
e.g., Lauren Green, Plan to Build Mosque Near Ground Zero Riles Families of 9/11
Victims, FOXNEWS.COM (May 14, 2010), http://www.foxnews.com/us/2010/05/14/planbuild
mosqueneargroundzerorilesfamiliesvictims.
willing to fight for Guantnamo159 and his political leverage was reduced
after midterm elections saw substantial Republican (and even Tea Party)
candidate victories. Upon regaining majority status in the House,
RepublicansappearedintenttoreprisetheirClintoneraroleinoversight.160
The partisan atmosphere in Washington was briefly chastened by the
shooting of Arizona Congresswoman Gabrielle Giffords.161 However,
contrary to the hopes of Mann & Ornstein and the expectations of Wittes
and Hansen & Friedman, there are no indications of reform efforts that
wouldpointtoacommitmenttostructuralchangeinCongress.162
CONCLUSION
Let me conclude by returning to the original question posed by this

essay: Is there a case for Congress? This question is of course mainly
rhetorical. Congress is the centerpiece of the U.S. Constitution and the
mainstay of its system of government. Of course there is a case for
Congress.WhatWittesandHansen&Friedmanbothultimatelydesireisa
better functioning Congress that takes its role seriously and rises above
petty partisanship. Wittes sees Congress as offering something priceless:
actions that, unlike unilateral presidential acts, can build comprehensive
legalsystemsanddosointhenameofthepoliticalsystemasawhole.163He
would like to see Congress seriously deliberate the numerous complex
issuesraisedbytheWaronTerrorandputitscollectivemindtodrafting
theappropriatelynuancedandcomplexlawsnecessarytoreininexecutive
power. Hansen & Friedman would like to see Congress exert robust
oversight over the executive, in addition to framing new laws that are
calledforbynewsituations.YetitdoesnorealgoodtodenythatCongress
isbesetbynumerousdysfunctionsthatnomereentreaties,howeverwell
159Charlie
Savage, Closing Guantnamo Fades as a Priority, N.Y. TIMES, June 25, 2010,
http://www.nytimes.com/2010/06/26/us/politics/26gitmo.html?_r=1&hp.
160See Darrell Issa, N.Y. TIMES, http://topics.nytimes.com/topics/reference/timestopics
/people/i/darrell_issa/index.html(lastupdatedNov.29,2010).TheNewYorkTimesreportsthat
Rep.DarrellIssa,theRepublicanwhowilltakeovertheOversightandGovernmentReform
Committee in the House, is planning to seek subpoena power for large numbers of federal
agency inspectors general in order to vastly expand oversight of the Obama
Administration.Seeid.
161See Mark Arsenault, Kerry Calls Partisanship a Threat, BOS. GLOBE, Jan. 12, 2011,
http://articles.boston.com/20110112/news/29343022_1_jaredleeloughnerpartisanship
teachingmoment.
162SeeEwenMacAskill,GabrielleGiffordsShootingReignitesRow Over RightwingRhetoricin
U.S.,GUARDIAN.CO.UK(Jan.9,2011),http://www.guardian.co.uk/world/2011/jan/09/gabrielle
giffordsshootingrightwingrhetoric.
reasoned, can overcome. This discussion has not even touched on the
problemoflobbyingortheimpactoftheCitizensUnitedv.FederalElections
Commission decision,164 but even without a thorough examination of the
financial influence in Congress, two change electionsthe 2008
presidential election and the 2010 midterm electionhave made it clear
thattheAmericanpeoplearedeeplydissatisfiedwiththegovernmentthey
haveatthemoment.
It is testimony to Congresss record that, after conducting a months
long interagency review of the terrorism detention system, the Obama
AdministrationdidnotaskCongresstoauthorizethedetentionsystemin
Guantnamo (beyond such authorization as arguably implicit in the
AUMF)ortolegislateanswerstothequestionsleftopenbytheBoumediene
decision.165 Though Wittes characterized this decision as Obamas Dick
Cheney moment, human rights advocates breathed a sigh of relief and
mincednowordsinexpressingtheirdistrustofCongress.166
ChristopherAnders,seniorlegislativecounselattheACLU,remarked:
Going to Congress with new detention authority legislation
would only have made a bad situation worse. It likely would
havetriggeredachaoticdebatethatwouldhavebeenbeyondthe
ability of the White House to controland would have put the
U.S.detentionpolicyevenfurtheroutsidetheruleoflaw.167
Actionslikethesebythecurrentleadershipindicatethatinthecurrent
climate,theObamaAdministrationisonlythelesseroftwoevils.

164See generally Citizens United v. Fed. Elections Commn, 130 S. Ct. 876 (2010) (holding
thattheFirstAmendmentdoesnotallowlimitsoncorporatefundingofpoliticalbroadcasts).
165PeterBaker,ObamatoUseCurrentLawtoSupportDetentions,N.Y.TIMES,Sept.23,2009,
http://www.nytimes.com/2009/09/24/us/politics/24detain.html?_r=2 (clarifying that the

Administrations decision deals only with Guantnamo and does not preclude seeking
prospectivedetentionauthorityforfuturecaptures);PeterFinn,AdministrationWontSeekNew
Detention System, WASH. POST, Sept. 24, 2009, http://www.washingtonpost.com/wp
dyn/content/article/2009/09/23/AR2009092304427.html?hpid=moreheadlines.
166SeeWITTES,supranote31.
167Finn,supranote165.

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WILSONFINALSAMPLE.

Several works by Benjamin Wittes, Victor Hansen & Lawrence

626 NewEnglandLawReview v.45|625

2011 Is There a Case for Congress? 627

The books discussed here clarify what is at stake in evaluating any

628 NewEnglandLawReview v.45|625

9LEGISLATINGTHE WARON TERROR: AN AGENDAFOR REFORM 3 (BenjaminWittesed., 2009)

[hereinafterLEGISLATINGTHE WARON TERROR];compareHANSEN & FRIEDMAN,supranote4,at

2011 Is There a Case for Congress? 629

by civil libertarians, insisting that it is possible to critique the unilateral

RTS. FIRST (Dec. 13, 2010), http://www.humanrightsfirst.org/2010/12/13/benwittesredux

630 NewEnglandLawReview v.45|625

Respondents Memorandum Regarding the Govts Detention Auth. Relative to Detainees

23HANSEN & FRIEDMAN,supranote4,at12(citingDavidJ.Barron&MartinS.Lederman,

2011 Is There a Case for Congress? 631

Lawmaking (2010), available at http://www.brookings.edu/~/media/Files/rc/papers/2010/0122

632 NewEnglandLawReview v.45|625

Wittess subtitle borrows from the jurisprudence of presidential powers

recurringclaimthattheconflict with AlQaedaisnoveland hybrid.TheCourts historically

2011 Is There a Case for Congress? 633

Wittes and Hansen & Friedman decry Congresss passivity with

634 NewEnglandLawReview v.45|625

passivity in general. Wittes argues that Congress should have provided

The subject of torture most justifies Wittess claim to occupy the

underanycircumstancesdepends,toagreatdegree,on theextenttowhichit mayproduce

2011 Is There a Case for Congress? 635

58Wittes saysthat themanualshouldbepublic,sothatitdoesnotappearthatthe United

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2011 Is There a Case for Congress? 637

What Wittes dislikes is that the Bush Administration sought legal

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committed according to Wittess own definition of torture, then

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CommandResponsibility,andtheDevelopmentofInternationalCriminalLaw,93CALIF. L. REV. 75,

2011 Is There a Case for Congress? 641

REAFFIRMING THE U.S. COMMITMENT TO COMMON ARTICLE 3 OF THE GENEVA CONVENTIONS:

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In light of their interest in oversight, it is surprising that Hansen &

include the following: U.S. CONST.art.I,1(Alllegislativepowershereingrantedshallbe

2011 Is There a Case for Congress? 643

Mann & Ornsteins The Broken Branch appeared in 2008 to much

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2011 Is There a Case for Congress? 645

parties, it is impossible to discuss the contemporary Congress without an

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election cycle begins as soon as the previous one concludes.118 The

DAILY, Apr. 10, 2006, http://www.michigandaily.com/content/levincongressunwilling

SEPTEMBER 11 DETAINEES 3 (2002), available at http://www.hrw.org/legacy/reports

TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES IN CONNECTION WITH THE

2011 Is There a Case for Congress? 647

TODAY, May 12, 2004, http://www.usatoday.com/news/world/iraq/20040512congress

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enclaves (socalled black sites) where suspects could be rendered

136This chapter recounts how

2011 Is There a Case for Congress? 649

The question of Congresss actual knowledge or willful ignorance of

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2011 Is There a Case for Congress? 651

behavior and decision making in American politics and

Jan. 26, 2009, http://www.nytimes.com/2009/01/27/washington/27bagram.html?scp=3&sq=

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2011 Is There a Case for Congress? 653