I will have more on this in my next column, but for now suffice it to say that the essay by my friends David Rivkin and Lee Casey in Tuesday’s Wall Street Journal is so far off base that it is hard to believe it was written by a duo that has churned so much excellent work on the government’s war powers.
In “The Wrong Way to Stop Civilian Terror Trial,” David and Lee accuse Congress of violating the Constitution by using its power of the purse to prevent the Obama administration from transferring Gitmo detainees to the U.S. for civilian prosecution. In one fell swoop, the authors manage to (a) misstate the “core” functions of the presidency established by the Constitution (criminal prosecution – a function the framers assumed would be handled by the states, and that became federal only because of congressional legislation – is not one of them); (b) ignore Congress’s long and entirely constitutional history of denying the executive branch funding for prosecutions (that’s why there was no Justice Department until a century after the Constitution’s adoption); and (c) mangle the concept of prosecutorial discretion.
On the last point, contrary to the authors’ claim, the prosecutor unilaterally decides only whether to charge an offense – and even that decision is shaped by Congress, since a prosecutor may only charge crimes Congress has legislated, and must prove the offense elements Congress has defined. The decision when to charge is controlled by the statute of limitations and speedy trial rules imposed by Congress. The decision where to charge is totally dependent on Congress’s power to establish lower federal courts, place limits on their jurisdiction, and prescribe venue standards. Moreover, David and Lee ignore that federal prosecutors are entirely dependent on Congress to fund all their activities, not just terrorism prosecutions.
To compare prosecution to the president’s conduct of foreign affairs, as David and Lee do, is meritless. The conduct of foreign affairs and war are core constitutional functions of the presidency — they are largely why the presidency was created. The president would have those responsibilities no matter what Congress did because they clearly stated in Article II. To the contrary, Congress could, fully consistent with the Constitution, repeal every federal penal statute, shut down the Justice Department, and even eliminate the office of Attorney General — leaving the president with no capacity to prosecute anyone.
Nothing in the Constitution empowers the executive branch to tell Congress in which courts terrorists will be tried. Reality is closer to the opposite of what David and Lee have described.