By Stanley Kutler
Congress is broken. The framers of the Constitution, building on nearly six centuries of parliamentary experience, situated Congress at the heart of the American constitutional system. Representative government was believed to be the purest, and yet workable, means of self-government. For the past 25, however, Congress has made a joke of that system, as it has trivialized and mocked any meaningful representation in the sense that the makers of the Constitution framed it.
That sense was best captured by Edmund Burke (1729-1797), the great English parliamentarian and statesman, whose work became the lodestar for the rising intellectual conservative movement 50 years ago. Burke was a contemporary of the Founding Fathers and a keen observer of the American scene. Today, however, he is not in fashion; in particular, when neoconservatives and neo-liberals alike celebrate the historical expansion and maintenance of the American empire, they ignore Burke’s warning that “great empires and small minds go ill together.”
Burke had much to say about the role of people’s representatives. He acknowledged that representatives owed the “strictest union ... and the most unreserved communication” to their constituents, yet he insisted that representatives possess “independent judgment and enlightened conscience.” A representative must strike a delicate balance, offering constituents “his judgment,” said Burke, while bearing in mind that “he betrays, instead of serving [them], if he sacrifices it to [their] opinion.” Burke recognized it is easy to “run into the perilous extremes of servile compliance or wild popularity.” Instead, the interest of the whole community must be pursued, not some local, individual interest, or a “momentary enthusiasm.”
In the Federalist No. 10, James Madison saw the danger of representatives pandering to “factions,” or groups “actuated by some common impulse of passion, or of interest adverse to ... the permanent and aggregate interest of the community.” Burke and Madison alike would be appalled by Congress’s ready acquiescence to executive power.
Congress has been a spectator to President George W. Bush’s Iraq war and to the shameful use of “enhanced interrogation” and other forms of torture that were widely documented during Bush’s presidency. Congressional Democrats roundly criticized the Bush administration for maintaining the prison facilities at Guantanamo. Although Bush’s successor now has made pointed efforts to remove and reject such polices, Congress is once again derelict, as it refuses to take any responsibility for cleaning up after the Bush crew.
Congress’s palpable fear of voters would have left Burke and framers of the Constitution aghast. “Momentary enthusiasms” dominate our political landscape, with considered judgments subordinated to emotional, partisan responses.
In our current congressional follies, both parties refuse to take responsibility for the shameful maintenance of the Guantanamo facility, where “detainees” have been tortured, abused, but not charged and tried—truly a wholesale violation of any remote understanding of the “rule of law.” While Republicans predictably and dutifully defended Bush, congressional Democrats flayed him for these departures from America’s stated principles.
President Barack Obama has renewed his commitment to close Guantanamo within a year, but that may be contingent upon his administration’s ability to relocate prisoners. Instead of helping to find a solution, congressional Democrats, along with the usual Republican suspects, have abandoned principle in favor of popularity.
Sen. Sam Brownback, R-Kan., doesn’t want detainees in his backyard—presumably meaning Leavenworth, which housed many notorious criminals and provided jobs to Kansas residents until the supermax prison in Florence, Colo., was built. Football star Michel Vick was one of Leavenworth’s guests, and Brownback apparently had little concern for the safety of his constituents’ dogs. Sen. Dianne Feinstein, D-Calif., doesn’t want the prisoners in San Quentin.
Sen. John Thune, R-S.D., summed up these senators’ sentiments: “The American people don’t want these men walking the streets of America’s neighborhoods,” he said. “Americans did not want detainees in their backyards either,” he added.
Congress wants to close the Guantanamo facility, but it will not accept the responsibility that goes with that action. We cannot hold prisoners in Cuba indefinitely. Sadly, few are willing to stand for principle in the face of undoubtedly misplaced fears; instead, our representatives rant about imagined prisoners loose in some imagined backyard.
By a 90-6 vote, the Senate voted to strip money from a war supplemental bill to close Guantanamo. Those who mustered some political courage and voted in a responsible, considered way are terribly few: Richard Durbin, R-Ill., Tom Harkin, D-Iowa, Patrick Leahy, D-Vt., Carl Levin, D-Mich., Jack Reed, D-R.I., and Sheldon Whitehouse, D-R.I. (Robert Byrd, Edward Kennedy and Jay Rockefeller did not vote). Once again, Democrats have panicked for fear of being considered “soft” on national security.
The Gang of 90 must be oblivious to the population at the supermax facility in Colorado. It includes Dandeny Munoz Mosquera, chief assassin for the Medellin cartel; Theodore Kaczynski, the Unabomber; Richard Reid, the “shoe bomber;” Eric Robert Rudolph, bomber of abortion clinics and the Atlanta Olympic Park; Terry Nichols, co-conspirator of the Oklahoma City bombing, Zacarias Moussaoui, the “20th hijacker” from the 9/11 World Trade Center destruction; and Ramzi Yusef from the 1993 World Trade Center bombing. When not in solitary confinement, prisoners generally are allowed out of their windowless cells for an hour a day. None wander in our backyards; they will go nowhere.
Congress loves domino theories. Bring the “detainees” to American shores and they will unleash violence and terror on American citizens. Representatives have pounced on this popular proposition, believing it an easy path to re-election. They betray their own judgment, Burke would say. Instead, they might consider the principle President Obama has laid before them: “We uphold our most cherished values not only because doing so is right, but because it strengthens and keeps us safe,” he said in his National Archives speech on May 21.
While Congress plays to its home crowd, the Obama administration has brought an alleged al-Qaida militant accused in the 1998 bombings of American embassies in Tanzania and Kenya to New York, where he will be tried in a civilian court, marking a first for a Guantanamo prisoner. Even Sen. Charles Schumer, D-N.Y., who never met a microphone or camera he did not like, has said nothing.
President Obama recently withheld releasing photos that depicted abuse and torture of prisoners by American military personnel, bowing to the Lieberman-Cheney-Gates contention that the photos would bring harm to our troops. But he also has said that he and Congress can “keep us safe” by restoring and strengthening our commitment to the rule of law. Good advice—perhaps Congress might reassert its role as a proper representative body, reflecting real values and principles, not mere momentary enthusiasms.
Stanley Kutler is the author of “The Wars of Watergate” and other writings.
AP photo / Brennan Linsley
A U.S. soldier holds onto a steel mesh door inside the U.S. prison at Guantanamo Bay, Cuba.