The Volokh Conspiracy - The Senate Steps Up:

Yesterday the Senate voted 90-9 to set limits on the handling of detainees. There is coverage of the vote here and here. I do not know whether the standard adopted by the Senate is the best approach, but I nonetheless view the vote as a positive development.

If anything, this newfound Congressional willingness to address the rules of detention is long over due. While I certainly believe that the Executive Branch is due a fair degree of deference from the courts in its execution of war-related activities, the Constitution confers the ultimate responsibility for such matters to the legislature. Article I, section 8 explicitly delegates the power "to make Rules concerning captures on Land and Water." Congress also has the power "to make Rules for the Government and Regulation of the land and naval Forces." Viewed in this light, Congress is not interfering with executive power. It is exercising a responsibility the Constitution explicitly places in the legislature's hands.

Absent Congressional enactments specifying how military detainees are to be treated, the precise limits of the executive's authority are necessarily ambiguous. This ambiguity may give the executive some measure of leeway -- a leeway the White House and military apparently want to preserve -- but it also has unfortunate consequences. Among other things this ambiguity encourages legal challenges to military operations and invites the courts to second-guess decisions that should be made by the political branches. Insofar as the legislature sets clear rules, there will be less room for the judiciary to interfere. If one fears excessive judicial meddling in the conduct of the war on terror, as I do, one should applaud this development.

Again, I am expressing no opinion on the substance of the standards adopted by the Senate. I do not know whether they are stoo strict or too lenient. Rather, I am suggesting that as an institutional matter we should welcome the Senate's willingness to fulfill its Constitutuonal obligation to establish rules for military conduct. I hope that the House will follow suit.

	[Juan Non-Volokh, October 6, 2005 at 3:47pm] Trackbacks The Senate Steps Up: Yesterday the Senate voted 90-9 to set limits on the handling of detainees. There is coverage of the vote here and here. I do not know whether the standard adopted by the Senate is the best approach, but I nonetheless view the vote as a positive development. If anything, this newfound Congressional willingness to address the rules of detention is long over due. While I certainly believe that the Executive Branch is due a fair degree of deference from the courts in its execution of war-related activities, the Constitution confers the ultimate responsibility for such matters to the legislature. Article I, section 8 explicitly delegates the power "to make Rules concerning captures on Land and Water." Congress also has the power "to make Rules for the Government and Regulation of the land and naval Forces." Viewed in this light, Congress is not interfering with executive power. It is exercising a responsibility the Constitution explicitly places in the legislature's hands. Absent Congressional enactments specifying how military detainees are to be treated, the precise limits of the executive's authority are necessarily ambiguous. This ambiguity may give the executive some measure of leeway -- a leeway the White House and military apparently want to preserve -- but it also has unfortunate consequences. Among other things this ambiguity encourages legal challenges to military operations and invites the courts to second-guess decisions that should be made by the political branches. Insofar as the legislature sets clear rules, there will be less room for the judiciary to interfere. If one fears excessive judicial meddling in the conduct of the war on terror, as I do, one should applaud this development. Again, I am expressing no opinion on the substance of the standards adopted by the Senate. I do not know whether they are stoo strict or too lenient. Rather, I am suggesting that as an institutional matter we should welcome the Senate's willingness to fulfill its Constitutuonal obligation to establish rules for military conduct. I hope that the House will follow suit.