Three Cheers for Gridlock

Condemned by scholar Norm Ornstein in a Foreign Policy magazine piece in July 2011 as the worst Congress in the country’s history, the 112th Congress has been chastised for its lack of civility, rejection of decorum, unwillingness to compromise, hopeless partisan gridlock, and ideological scuffles. The Worst Congress Ever thesis suggests that our lawmakers dither while the country withers, fiddling away like Nero with Rome ablaze around them.

Perhaps we’ve all pegged it incorrectly. While it is fair to suggest this is the worst Congress in history, we may have been wrong in our assessment of why this is so. Forget the argument about their struggle to bargain, compromise, and negotiate. When they do decide to behave in such a manner, the public finds itself calling into question their competence and trustworthiness.

In short, they stink when they don’t take action and stink worse when they do.

While Americans were busy getting back to their lives after a restful Thanksgiving holiday, the Senate voted on November 29 to advance Senate Bill 1867—also known as the National Defense Authorization Act for Fiscal Year 2012 (NDAA). This annual legislation is required to appropriate money to the Department of Defense, set military personnel policy, update the Uniform Code of Military Justice, and a handle a host of other necessary housekeeping items.

Thanks to a provision arranged with little (if any) deliberation by Senators John McCain (R-AZ) and Carl Levin (D-MI), this year’s NDAA legislation will, as described by Charlie Savage at the New York Times, establish "a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial." While our current policy towards terror suspects permits such actions towards non-Americans, the new provision shockingly "contains no exception for American citizens," says the NY Times.

Critical to this provision, writes Lisa Mascaro of the Los Angeles Times is something that should concern all Americans: the federal government would be granted "greater authority to use military custody, rather than civilian law enforcement and courts." This means a rejection of civilian court trials for potential cases involving American citizens arrested by the military on American soil.

Concerned by these developments, U.S. Senator Mark Udall (D-CO) offered an amendment to the legislation on the floor of the Senate to delay the detainee provisions pending a thorough review. Said Udall, "The least we could do is take our time, be diligent and hear from those who will be affected by these new, significant changes in how we interrogate and prosecute terrorists."

One would think they could deliberate like adults and seek out facts before making a decision like regular people do on a daily basis. Then again, this is the 112th Congress. Despite support for Udall’s amendment by the Department of Defense, Director of National Intelligence James Clapper, the Federal Bureau of Investigation, and civil libertarians, the Senate defeated the Udall amendment—Senate Amendment 1107—by a lop-sided vote of 60 in opposition and just 38 in support.

According to the online resource That’s My Congress, the Udall amendment "would have removed the legislation’s unconstitutional power of imprisonment without criminal charge" for U.S. citizens arrested on American soil. They suggest that the NDAA bill in its current state "grants the U.S. military the power to put American citizens within the borders of the United States into prison without any criminal charge, without any time limit. All that the federal government will need to do to imprison Americans will be to merely accuse them of terrorism, without substantiating those charges with any evidence."

Congress, despite months of gridlock and partisan wrangling, has come together to advance this particular legislation which makes a mockery of the civil liberties enshrined in the U.S. Constitution. It would be comical if it weren’t so tragic. When will the country finally boot out this collection of amateurs and loony tunes?

If you are thinking that perhaps we can rely on the House of Representatives to fix this detainee mess, you best think again. The lower chamber voted 322-96 on May 26, 2011 to pass House Resolution 1540, which is virtually a carbon copy of the Senate bill. Meanwhile, the Senate voted the day after defeating the Udall amendment by an even more lop-sided margin of 88-12 for cloture, effectively ending debate on the bill.

If you think that maybe President Obama will ride to the rescue, you’re wrong on that too. An AP article from December 1 suggests that if anything, the Obama administration would prefer an even broader ability to detain whoever they want—regardless of American citizenship or arrest on American soil. The report says that the Pentagon’s legal counsel claims that "the executive branch, not the courts, is equipped to make military battlefield targeting decisions about who qualifies as an enemy." Hooray for the Third Bush Term.

We’ve had it all wrong. This isn’t the worst Congress in history due to their inaction. They’re the worst Congress in history because when they do take action we get a dysfunctional "Super Committee," a reauthorization of the Patriot Act, a proposed phony balanced budget bill, and disgraceful outcomes like this dubious defense legislation that empowers the government to potentially detain indefinitely American citizens, leaving the door open to streets patrolled by the military in an endless state of war.

That weird odor you smell right now isn’t the spoiled turkey in the rear of the fridge. It’s the 112th Congress doing what it does best. Bargaining, compromise, and negotiation are necessary in politics, but based on how these things have worked in the 112th Congress, gridlock certainly seems preferable.

Nathan R. Shrader is a PhD student in Temple University’s Department of Political Science and a Republican Committeeman in Philadelphia. He can be reached at [email protected].