Legislators Fail to Clarify Terror Laws; Congress Missing in Action in Legal Debate, Scholars Say

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In the years since the terrorist attacks of Sept. 11, 2001, Congress has largely escaped the backlash faced by the Bush and Obama administrations on how to deal with suspected terrorists, for the simple reason that the legislative branch has done little to define the legal boundaries of U.S. counterterrorism efforts.

Some scholars and experts see this inaction as a dereliction of duty by Congress as an institution, a failure that transcends partisanship.

There is an enormous amount of blame to go around Congress in both parties in terms of the abandonment of the field on the part of the legislature over the last seven years, said Benjamin Wittes, a senior fellow at the Brookings Institution, a liberal Washington think tank.

Paul D. Clement, solicitor general under President George W. Bush from 2005 to 2008, called Congress the missing branch during the years after the Sept. 11 terrorist attacks, which killed about 3,000 people in New York, Virginia and Pennsylvania.

So much of this was a dialogue between the [Supreme Court] and the executive branch, Mr. Clement said, labeling Congress' passivity a damning indictment.

We have a separation-of-powers framework that's really premised on a powerful Congress, said Mr. Clement, now a Supreme Court specialist at King & Spalding LLP.

To prod Congress into some action, Mr. Wittes is collecting essays from a wide range of legal experts on how Capitol Hill can and should legislate on a wide range of counterterrorism issues. The essays will appear in book form in July.

Last week, Mr. Wittes organized a two-day conference at the historic Montpelier estate, home of the nation's fourth president, James Madison, where some of the essay authors as well as big legal names like Mr. Clement and former Justice Department lawyer Jack Goldsmith spoke to a small group of journalists, including a Washington Times reporter.

A lot of these questions are questions we should have been debating starting no more than six months after 9/11, and both for reasons of executive silliness and for reasons of legislative cowardice, we did not take on until those problems became much more difficult and much more acute, Mr. Wittes said.

At this point, the hour is late, and we don't really have a lot of time to waste on it. And the longer we wait, the more the rules get written by the judiciary in a fashion that doesn't optimize the political, legal and national-security interests of the country.

A senior congressional aide involved in foreign policy and counterterrorism matters agreed that Congress has been very circumspect in legislating on these matters.

To some degree it's probably because of the classified nature of some of this, and some members probably are afraid to push too many changes because it might lead in the wrong direction, said the aide, who spoke about congressional performance and motivation on the condition he not be identified.

A multitude of legal questions await resolution on issues such as interrogation and detention rules as well as protections for state secrets in legal trials.

President Obama sparked an uproar on the left and drew praise from the right for his recent decisions to restart military commissions for terror suspects and to fight disclosure of additional photos of detainee abuse as well as for his administration's use of the state secrets privilege. However, these are just the first of many tough decisions he'll face at the intersection of law and counterterrorism. …