Partisanship overshadows significant constitutional debate

Tim Chapman
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Posted: Sep 15, 2006 12:00 AM

On Monday -- September 11 -- President Bush marked the fifth anniversary of the worst terrorist attacks ever on American soil. He delivered a prime time speech to the nation in which he honored those who were killed five years ago and laid out his vision for winning the long war against terrorism.

“We are now in the early hours of this struggle between tyranny and freedom,” Bush said. “Amid the violence, some question whether the people of the Middle East want their freedom, and whether the forces of moderation can prevail. For sixty years, these doubts guided our policies in the Middle East. And then, on a bright September morning, it became clear that the calm we saw in the Middle East was only a mirage.” That deadly morning, said Bush, forced America to “change our policies” with respect to the Middle East. From now on, the United States will commit our global influence “to advancing freedom and democracy as the great alternatives to repression and radicalism.”

That speech set off a firestorm of political criticism.

Democratic leaders Nancy Pelosi and Harry Reid demanded that television networks give them equal air time to rebut the President’s speech. Failing that, they raced to the floors of Congress to denounce the President. “This is a political move designed to tap the overwhelming public sentiment to destroy al Qaeda as a way to bolster sagging public support for the war in Iraq,” said Reid of the president’s speech. Reid was joined on the Senate floor by fellow liberal Dick Durbin who described “an offensive” by the administration “made to justify a war in Iraq.”

The reaction is typical of a Congress that these days seems more preoccupied with the fall elections than with significant debate. Unfortunately, the partisan rancor is threatening to overshadow a very significant constitutional debate that will have a major impact on America’s ongoing ability to wage the ware on terror.

CONSTITUTIONAL DEBATE

Both the House and Senate have scheduled debate next week on a pair of bills that would ensure the President enjoys constitutional authority that has not yet been explicitly granted by Congress.

One bill would give congressional backing to the administration’s National Security Agency program that intercepts terrorist communications. The other measure would allow the administration to create military commissions in which accused terrorists could be tried outside the U.S. criminal judicial system.

The military commissions legislation was made necessary by a recent Supreme Court decision, which declared such tribunals (intended for use at Guantanamo Bay) unlawful. The Supreme Court decision, contrary to many media reports, did not declare military commissions unlawful. As The Heritage Foundation’s Todd Gaziano explained, the decision was “not a rebuke of the Bush administration’s conduct of the battle against the threat of transnational terrorist groups. The decision will have little practical impact on fighting the long war. Nothing has changed the fact that the government must fashion a means to adjudicate the status of detainees that satisfies both the rule of law and U.S. national security interests.”

The legislation scheduled to be debated next week in Congress is the legislative branch’s effort to do just that.

PARTISANSHIP LOOMS

Unfortunately, it is likely that next week’s debate on these very serious measures will be less than genuine. Congressional Democrats appear determined to oppose both of these measures, partly to prevent Republicans from having an election-year accomplishment. Moreover, not all Republicans are united on the issues.

In the Senate a renegade group of powerful Republican dissenters is led by Senate Armed Services Committee Chairman John Warner. He’s joined by Senators John McCain and Lindsey Graham in offering an alternative proposal that would allow terrorists tried in these commissions to know classified information pertaining to their trial. The administration vigorously opposes this approach, as it could lead to the leaking of sensitive classified information to the enemy. Nevertheless, Warner, McCain and Graham appear determined to move ahead with their proposal. That would leave the administration approach vulnerable and in need of Democratic support to pass.

If the Democrats’ reaction to the President’s speech this week is any indication, that support is highly unlikely.

Pennsylvania Senator Rick Santorum (facing a tough reelection fight) summed up the atmosphere in Congress in a Tuesday floor speech. “We just cannot get past the politics around here, just cannot get past the partisan advantage around here,” said Santorum. “We cannot face the reality that we have a dangerous enemy out there who wants to destroy everything we hold dear, an enemy who is very clear about what they want to accomplish.”

Putting domestic political considerations above significant constitutional questions that will have national security ramifications is a recipe for bad policy -- bad policy that a nation engaged in a long war against terrorists cannot afford.