A Jalopy that Works
As we watch the ferocious debate over whether and how to release the second half of the $700 billion financial rescue package Congress approved last October and the endless finger-wagging over how the first batch was misspent, we should step back every now and then remember something -- this debate nearly didn't happen. The Congress and the country quite easily could have been reduced to grumbling on the sidelines as the administration spent -- or misspent -- the second $350 billion.
We all know, theoretically, that government was divided into three branches to ensure that no one branch had too much power. But in practice -- and especially in crises -- that concept usually gets forgotten and we often see congressional hesitation and deliberation not as checks and balances but simple obstructionism and politics as usual. Remember when the House, Democrats and Republicans alike, torpedoed the first version of the rescue package? They were pilloried for bringing the country to the edge of financial ruin. Yet one of the key changes made to the legislation as it worked its way fitfully through Congress was to break the package in half and make the second $350 billion subject to congressional acquiescence.
So when we heap scorn on lawmakers for their squabbling and delays, we should remember that in the end they often do what they are supposed to do -- put brakes on speeding locomotives run by the executive branch. Congress did a similar thing in the weeks after the attacks of 9/11 when they approved a series of changes in surveillance and security laws that became known as the Patriot Act. Congress and the administration were tampering with rights that are at the very heart of the American concept of freedom and protection from an intrusive government, and because of the circumstances, there was very little debate. It was almost as an afterthought that some lawmakers suggested that the act "sunset" (expire) five years later unless Congress voted to extend it. When it was extended, some important changes were made .
For an object lesson about the consequences of what can happen when such brakes are not applied, look no further than the most recent news about the mess and global embarrassment known as Guantanamo. The Bush administration took complete control of the detention of people it regarded as "enemy combatants" and placed them outside the the legal system and the oversight of Congress.
The federal courts -- including a normally Bush-friendly Supreme Court -- have gradually reined the administration in, but the upshot is that mistakes and sloppiness have put the prosecution and continued detention of some extremely dangerous people at risk. The Washington Post has two stories today spelling out the problems that will be left for the Obama administration to wrestle with. One is about how the top Bush official overseeing prosecutions of the detainees, a retired federal judge, refused to allow prosecution of the man suspected of planning to take part in the Sept. 11 attacks as the "20th hijacker" because she concluded he had been tortured and information obtained during interrogations was tainted and could not be used. The second details charges by a former top military prosecutor of Guantanamo detainees that crucial evidence was so routinely mishandled and even lost that prosecution even under the more favorable rules of the tribunals may be impossible.
Of course there is no guarantee that working out a system of interrogating, detaining and trying suspected terrorists with Congress and allowing it to be reviewed by the courts as prosecutions developed would have resulted in fewer mistakes. But the system would have been transparent and open to corrections far earlier -- and the responsibility for errors and problems would have been shared by the government as a whole, not just an executive branch that viewed constitutional checks and balances as an annoyance, not a safety valve.
So the next time the rusty, clunky heap that is our form of self-governance coughs, stutters and threatens to stall, let's kick it in hopes of jolting it awake, not so hard that it breaks down.