So I've been fairly critical of the Obama administration's failure to live up to its campaign promises in restoring the rule of law to the fight against terrorism. One way in which they differ from the Bush administration however, is that the authority they've asserted for detaining terrorism suspects indefinitely doesn't come from the "inherent" authority of the executive but from congressional authorization.
This means that theoretically, Congress could compel the administration to conform to the rule of law by repealing the Military Commissions Act. "I don't believe Congress can say you have to try them in civilian court rather than court martial," says the Center for American Progress' Ken Gude. "But they would be able to say that he has to use the existing institutions.” Basically, Congress couldn't tell the administration which institution to use, but it would have to be one already established, such as federal court or military courts-martial (from a civil liberties point of view, the two are not significantly different).
The introduction of legislation to regulate the use of the State Secrets doctrine is an example of Congress' attempts to reject the president's authority on certain matters. Unfortunately, Congress seems far more concerned with binding the administration to Bush-era policies, and perhaps I haven't been fair to the administration in the sense that Congress is at least as complicit in preserving them as the administration has. They have the option to force the president's hand on a number of these issues--instead, they're more focused on keeping Guantanamo Bay open. On the other hand, they didn't spend 2008 making all of those flowery promises about the rule of law.
-- A. Serwer
