The final decision will set a precedent and become the standard of judging all similar cases in the future. It can just as well turn out to be a blow to the litigating party, as a victory. Since legal matters are rarely far from obvious, even if it might seem very clear to the public, it is often a matter or great risk to take a conflict before the court. Just how unclear a legal outcome can be, can be seen in Congressional hearings exploring the legal standing of a certain case the House or Senate is considering to bring to court. Typically, all sides defend their position by citing parts of the Constitution or statutes, knowing that the decision of a court will be based on interpretation of existing laws. After two hours of doing this and challenging each other’s selection and interpretation of referenced legislature, most cases which seemed pretty clear at the start seem much less so afterwards.
National Security
“National security” has been an engine of modernization and transformation for the presidency, but Congress has not seen a concomitant (simultaneous) evolution of its power. Accordingly, concerning national security, Congress remains a 20th Century institution attempting to check the power of a 21st Century presidency.
Over the last several decades, Congress has acquiesced to, or helped create new institutional structures in the Executive Branch under the banner of “national security” without assuring that these changes are subject to effective oversight.”
Witness testimony at Administration Oversight, Waste, Fraud, and Abuse Hearing
When Congress has pressed for oversight and involvement, the Administration has been quick to evoke “executive privilege” or refer to “National Security.”
National Security seems to act on the Congress like garlic on a vampire. Especially during a perceived or declared war or national threat, it has been the pattern of Congress to yield to the President’s claims with far too little questioning. This is understandable, as national threats and war require tighter secrecy and speedy reactions – which would be hampered by Congressional involvement and deliberation. It is also seen by Senators and Representatives as political jeopardy to become the target – as typically happens – of accusations from the President’s supporters of being “soft” or “endangering the nation.”
However, when there has already been cases of abuse, questionable use of the power and the extent of secrecy allowed the President and the Executive Branch, then such a passive and trusting approach becomes in and of itself a national security risk.
When the war is both formally undeclared and fought mainly against an enemy defined only by the President without any clear end, then it is more total surrender of Constitutional and statutory duty, than a genuine attempt to protect the nation.
One case where this has become very clear is the matter of federal whistleblowers.
Whistleblowers are those who “commit the truth” to their detriment and for the benefit of society. Their sacrifice for society often costs them their careers, skills, friends, families, wealth and sometimes their sanity.
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