Memo to the GOP: Let Judges and Prosecutors Do Their Jobs

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Congress is the most hated branch of American government. Shouldn't the legislature fix itself before it poaches new powers?

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This New York Times piece Sunday on Republican tactics toward the federal judiciary gracefully allows me to return briefly to the dubious (and persistent) phenonemon we are seeing this election cycle at the intersection of law and politics. Adam Liptak and Michael Shear say it all in their lead: "Republican presidential candidates are issuing biting and sustained attacks on the federal courts and the role they play in American life, reflecting and stoking skepticism among conservatives about the judiciary."

"Polls show disdain for Congress at all-time highs. So tell me again why it's a good idea to give Congress more power over the courts and the executive branch?"

Liptak and Shear cover much of what I wrote about last week. To score points, Republican candidates are attacking judges -- an easy target who cannot fight back because of ethics rules. But there is a flip side to this coin. Many legislators who already are in office are taking out their frustration on the executive branch. On Friday, for example, no fewer than 47 U.S. Senators backed a measure that would have precluded the Justice Department (any Justice Department) from prosecuting foreign-born terror suspects in federal civilian court.

I continue to find it mind-boggling. Galling. The idea that Congress, by far the least respected and trusted branch of federal government today, should be looking now to expand its power by encroaching upon the traditional power and authority of the two branches only makes sense in the twisted world of contemporary politics. Yet Republican presidential candidates, and conservative politicians (of both parties) seem relentless in their efforts to sell the idea to the American people. And the people, or at least enough people, seem willing to buy the idea.

The idea of neutering federal prosecutors in terror cases is unsupported by 200 years of legal and historical precedent. In a perfect world, President Barack Obama, Attorney General Eric Holder, and each of the U.S. Attorneys around the country would write a letter to these legislators. It would read something like this: "You've got enough on your plate, haven't you?How about you help fix the economy, and decrease the debt and deficit, and let us continue to convict terror suspects (some 300 and counting, by the way, since 9/11 alone)."

There's more. A Times editorial noted Saturday that the Senate now is contemplating a terror law measure that would make a thorny problem all the much worse. Both Sen. Carl Levin (D-Mich.) and Sen. John McCain (R-Ariz.) are pushing to mandate military custody for any terror suspect who merely claims to be a member of Al Qaeda. This is a step backward, toward the darkest days of the Bush Administration, when both the FBI and the federal judiciary were frozen out of the due process. Don't we remember how poorly this worked the first time?

Moreover, when you combine this pending measure with the administration's expansive drone strike policy the unfettered power is truly extraordinary -- and frightening. For all we know, since there's so far been no independent judicial review of either element, any suspicious person who says something nice about Al Qaeda, or even that person's friend or relative, can look up in the sky one day and see a missile bearing down on him. Why? Because Congress had said they were "enemy combatants" in an endless worldwide war.

Polls show disdain for Congress at all-time highs. More than 80 percent of those surveyed disapprove of the job our legislators are doing. So tell me again why it's a good idea to give Congress more power over the courts and the executive branch? And tell me again, given his atrocious legislative record on terror law, why anyone listens anymore to Sen. McCain? Congress needs to get its own act together before it poaches upon the traditional functions of the other branches. And any serious presidential candidate ought to be willing to say so. 

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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