About five years ago, as ranking member on the House Intelligence Committee, I went to visit David Addington in the White House. Always courtly, the counsel (and later chief of staff) to Vice President Dick Cheney welcomed me pleasantly enough.
I told him I thought the White House should work with Congress in developing a comprehensive legal framework around the detention, interrogation and trial of terrorism suspects. My hook was Article 1, Section 8 of the Constitution, which requires Congress to regulate captures on land and water.
"Oh, no," Addington said, "that section only applies to piracy."
That encounter still amazes me. The Bush administration never did engage Congress, maintaining instead a bulletproof belief in the president's Article 2 commander-in-chief authorities and using executive orders to keep Congress on the sidelines.
In stark contrast, in his first week in office, President Barack Obama issued executive orders to close the prison at Guantánamo Bay and tighten interrogations policy. While there is irony in the use of executive orders to undo the Bush administration's excessive reliance on them, there are two major differences: The Obama executive orders draw much of their substance from legislation introduced in the 110th and 111th Congresses, and they contemplate a long overdue, comprehensive legal framework for detention and interrogation policy.
Take Gitmo. The president's executive order will trigger a status review of all detainees, approximately 250 people, to determine who should be transferred for trial elsewhere, returned to their home countries or sent to a country willing to accept them. The remainder, probably 60 people, would be tried in U.S. federal court or under the Uniform Code of Military Justice.
Contrary to the scaremongers who claim terrorists will soon be walking our streets, U.S. prosecutions are a reasonable option. According to the Center for Strategic and International Studies, over 145 convictions of terrorists have been secured since 9/11 of U.S. and foreign nationals, and they are currently serving time in U.S. federal prisons — especially Supermax in Colorado. And Congress can help assure that foreign courts and international tribunals will vigorously prosecute those referred to them while also abiding by international conventions.
While Obama made clear that he retains commander-in-chief authority in exceptional circumstances, his second executive order properly provides that all interrogations must follow Army Field Manual procedures, including those conducted by the CIA. In order for the law to conform to this directive, Congress will need to adjust the flawed Military Commissions Act or repeal it altogether, which is my strong preference.
On these issues, Congress can trigger a vigorous public debate as legislative proposals go through the "regular order" — committee hearings, markup, floor debate and conference committees. Such debate has been essentially absent since 9/11, while the Cheney-Addington axis fashioned policy on what they called "the dark side."
Over 200 years ago, Ben Franklin said: "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Obama endorsed this sentiment in his inaugural address when he called for "the rejection of the false choice between our safety and our ideals."
Security and liberty are not a zero sum game. The key is not to balance them but to construct a careful legal framework that protects and strengthens both. Obama's executive orders are a great start. But getting the details right requires congressional buy-in and public support. The true test will be whether this brand-new relationship continues.
Rep. Jane Harman, D-El Segundo, served on the House Intelligence Committee for eight years and currently chairs the Homeland Security Subcommittee on Intelligence and Terrorism Risk Assessment. She wrote this article for the Mercury News.