Meanwhile Congress was reluctant to challenge Bush (members feared being termed “unpatriotic” since Bush argued that the safety of Americans depended on the secret surveillance done by NSA) immediately, but in the past few months Congress (the House Intelligence and Judiciary Committees) has demanded – and in part received – access to internal documents on the wiretapping program. “That access could ultimately help persuade skeptical lawmakers in the House, which so far has rejected the immunity idea, to sign on to the White Houses Plan” (Lichtblau 2008) according to the New York Times.
Indeed the Senate in January 2008 gave immunity for the phone companies that helped the NSA tap phones secretly, which means Verizon, at&T, et al., cannot be sued for assisting the Bush Administration with its warrantless wiretapping program (there are over 40 lawsuits pending over the phone companies roles in the wiretapping). So here is a case of Congress and the Courts participating part of the drama that was initiated by the executive branch. This is a classic example of the interaction alluded to in the introduction.
Another example – analogy – of the judicial and congressional roles is found in the continuing controversy surrounding prisoners (accused terrorists) at Guantanamo in Cuba. After September 11, the U.S. attacked Taliban forces in Afghanistan. Prisoners were taken to the U.S. military base in Guantanamo; Bush bypassed the criminal justice system and Congress and established secret military courts. Bush also basically ruled that the prisoners had no rights, and that the Constitutional provision of Habeas Corpus was null and void. The Supreme Court however ruled in 2004 (Hamdi v. Rumsfeld; Rasul v. Bush) that the “detainees must have a venue to contest their designation as enemy combatants” (Cutler, 2008).
After it was learned that American troops were torturing prisoners, Congress stepped into the controversy in 2005, passing the Detainee Treatment Act (DTA). That legislation “essentially mandated” that the U.S. comply with the Geneva Convention and UN “Anti-Torture Convention,” Cutler writes in the journal Peace & Change. But the Bush Administrations Attorney General Michael B. Mukasey testified before the House Judiciary Committee on February 7, 2008, that “He will not allow the Justice Department to investigate whether CIA interrogators broke an antitorture law when they subjected detainees to…waterboarding” according to the Boston Globe (Savage, 2008). So the next step in this battle between the executive branch and the legislative branch will no doubt ultimately wind up in the judicial branch; and once again, legislative and judicial roles both interact and interpret government controversies and departmental claims of Constitutional power.
American Civil Liberties Union (ACLU). “Safe and Free: Restore our Constitutional Rights.”
Retrieved February 7, 2008, at http://www.aclu.org.
Cornell University Law School. “United States Constitution: Article I.” Retrieved February 7, 2008 at http://www.law.cornell.edu/constitution/constitution.articlei.html.
Cutler, Leonard. “Human Rights Guarantees, Constitutional Law, and the Military Commissions
Act of 2006.” Peace & Change, 33.1 (2008): 31-59.
Lichtblau, Eric. “In Senate, a White House Victory on Eavesdropping.” The New York Times
25 January 2008. Retrieved February 7, 2008, at http://www.nytimes.com.
Savage, Charlie. “AG wont probe CIA or torture laws; Says Justice Dept. memos signed off on waterboarding.” Boston Globe 8 February 2008. Retrieved February 8, 2008, at.