Democrats more forgiving this time
By Patrick O'Connor
March 6, 2009
Former Homeland Security Secretary Michael Chertoff used to get an earful from Democrats when he’d tell Congress that customs wouldn’t be able to meet a 2012 deadline for inspecting every shipping container arriving in the U.S.
But last week, those same Democrats had almost nothing to say when President Barack Obama’s Homeland Security secretary, Janet Napolitano, told the House Committee on Homeland Security that the 2012 deadline “won’t work.”
“Whenever we would say that, they would start screaming,” said New York Rep. Peter King, the top Republican on the Homeland Security panel.
Welcome to single-party rule, where policy debates that once stirred partisan outrage no longer provoke the same indignant rhetoric from Democrats on Capitol Hill, now that one of their own is in the White House.
This newfound comity goes beyond cheerleading for a popular president. The real evidence comes on those rare occasions when Obama or his top deputies stick with a Bush administration policy — and congressional Democrats don’t say a word.
This dynamic has been particularly true on national security issues — as Obama has gone along with Bush policies, and Democrats haven’t protested — including:
• During confirmation hearings, top Obama officials acknowledged that the CIA will continue its so-called rendition program of transporting prisoners to countries with less-developed legal codes.
• Obama’s solicitor general, Elena Kagan, said anyone suspected of financing Al Qaeda could be detained indefinitely.
• And in a questionnaire, the president’s new director of national intelligence, retired Navy Adm. Dennis Blair, endorsed retroactive immunity for companies that participated in the National Security Administration’s warrantless wiretapping program — a major flashpoint in the tussle over expanding the Foreign Intelligence Surveillance Act.
To be sure, liberals have had a few things to cheer about on the national security front.
During his first months in office, Obama rolled back some of the most controversial Bush administration policies to combat terrorism by announcing he would shutter the military prison at Guantanamo Bay, Cuba; ban harsh interrogation techniques; and close the CIA’s so-called black site prisons abroad.
However these issues play out over the next four years, one sensitive legal dispute — over CIA rendition — might provoke a fight between congressional Democrats and the Obama administration.
Some Democrats are privately grumbling about the administration’s somewhat surprising decision to side with Bush’s legal team on this topic, and attorneys at the Justice Department filed paperwork last month siding with Bush administration lawyers to support so-called state secrets protections.
The Bush administration sought to block the American Civil Liberties Union from suing Boeing subsidiary Jeppesen DataPlan for helping arrange rendition flights on the grounds that an open court hearing could reveal sensitive intelligence-gathering techniques.
“We’re not happy with it,” said Rep. Jerrold Nadler (D-N.Y.), who has authored legislation creating an avenue for civil courts to handle classified information — a process already exists in the criminal court system.
Nadler, who sits atop the subcommittee with authority over constitutional issues, has raised his concerns with White House counsel Greg Craig. He has also requested a meeting with Attorney General Eric Holder. But he doesn’t have a timeline for moving the bill out of his subcommittee, nor does Judiciary Committee Chairman John Conyers Jr. (D-Mich.) have any plans to advance the legislation out of his broader committee.
And both acknowledged that they would give the administration a little more time to get organized before making any noise about the issues publicly.
“One of the problems is that there is no one in the Justice Department,” Nadler said. “That’s why I’m giving them the benefit of the doubt and not releasing statements.”
But Nadler promised to act eventually, saying, “This is the most important issue in civil liberties. ... If you can’t sue, there is no way to control government action, and we can’t have that in this country.”
The somewhat obscure issue of cargo screening is a perfect example of the cooperation Democrats are offering so far. But it can verge on neglect if lawmakers instinctively defer to the administration, as happened frequently when Republicans controlled Congress and the White House.
When they won the majority two years ago, Democrats used one of their first bills to enact a federal requirement that customs officials inspect each of the estimated 11.5 million shipping containers that flow into the U.S. from foreign ports every year.
At the time — and in the years since — industry opponents, congressional Republicans and the Bush administration have all argued that the target was nearly impossible and would completely slow down commerce. Chertoff made that case repeatedly in congressional testimony, arguing that his agency was moving as fast as it could but that the requirement upset pre-existing trade laws and proved treacherous to implement.
That was unacceptable for House Homeland Security Committee Chairman Bennie G. Thompson (D-Miss.), who fired off multiple missives to complain that the administration was dragging its feet.
Just last August, in a three-page letter to Chertoff, Thompson complained that “the Department of Homeland Security appears to be engaged in a concerted effort to thwart the will of the American people on the issue of 100 percent scanning of U.S.-bound maritime cargo.”
But last week, Thompson didn’t say a word when Napolitano said the policy was unworkable.
“The 2012 deadline is ... not going to work,” Napolitano told the committee. “To do 100 percent scanning requires, for example, agreements with many, many countries. There are lots of issues with that.”
King, the top Republican on the Homeland Security panel, smelled favoritism.
Democrats are “being much more cooperative with DHS than they were for the past five years,” King said this week.