What Does the Election Mean?

By Benjamin Wittes
Wednesday, November 3, 2010, 12:28 AM

This election wasn't fought over the issues we deal with here at Lawfare. It was about the economy, jobs, spending, health care, and all that jazz. Yet national security issues always lurk in the background in the post-9/11 era. For whatever it's worth, I suspect the election's impact on issues of the law of security will be, in substantive terms, minimal, though we may see a lot of symbolic squabbling over them.

As I write this post, it is clear that Republicans will take control of the House of Representatives, but it looks like they will not take control of the Senate--which is to say that voters seem to have borne out pretty closely the conventional wisdom that has reigned over the past few weeks. Assuming this pans out, the question arises what change Republican control can plausibly be expected to bring about in the arena of the law of national security?

Well, let's see. A (partially) Republican-controlled Congress could throw all kinds of roadblocks in the administration's way to prevent it from closing Guantanamo--except that a Democratic-controlled Congress already did that. Congress could elevate NIMBYism over patriotism in the disposition of Guantanamo cases, but that would hardly distinguish it from the Congress it would replace. Republicans could play the grossest sort of politics with delicate diplomatic efforts to resettle detainees, but that wouldn't distinguish them either. They could paralyze the administration in its efforts to bring detainees to trial in federal court--except that the political system has already managed that too without Republicans in control of either house of Congress. They could stymie the administration's plans for a legal framework to handle detentions--except that the administration has not mustered any plans for a legal framework to handle detentions.

The point is that the Congress in the hands of the president's own party has been so entirely unhelpful to the administration--which has, in turn, so completely failed to engage it constructively--that it's actually hard for me to imagine that partially divided government could be less productive in substantive terms than strongly unified party control has been. In divided government, we can imagine a future of paralysis on questions related to the legal architecture of America's confrontation with the bad guys--at least in the absence of Presidential leadership. Which is to say that we can imagine a future that looks a lot like the recent past and the present.

The big difference, I suspect, will not be substantive; it will be the level of noise. Congress institutionally, irrespective of party control, does not want to get in the way of important national security decision-making. Its interest lies in functionally delegating as much as possible to the President while reserving maximum capacity to carp from the sidelines. This allows members to claim credit when things go well and avoid blame when they go badly. When this basic institutional instinct combines with the partisan need to make the other party look bad, the results are loud symbolic clashes.

So GOP control of the House will likely mean a lot of not preventing the things that really matter, while at the same time loudly criticizing the administration for some of them. It will mean using committee powers to embarrass and highlight differences but not to stop the exercise of executive authority. It will mean occasional spending riders--on matters more symbolic than essential--against which President Obama will likely push back more aggressively than he would have when his own party held the reins. It will mean more frequent oversight hearings on matters designed to highlight how the administration is endangering America. And it will probably mean bills, perhaps many of them, reported out of committee or even passed through the entire House with the knowledge (even the intent) that they will arrive dead in the Senate. All of this will occupy significant administration and press attention. It will not, however, greatly impact the law of the conflict with Al Qaeda.

That's my best election night guess.