That’s not actually exactly what happens. The same debate is playing out in the immigration arena as well. Basically, it goes like this: Congress passes a lot of laws. There are, after all, 535 separate brain waves. However, Congress does not allocate nearly enough money to enforce all the laws they pass in all the cases to which they apply. Sometimes this is deliberate but more often it is garden variety cheapskatism.
As a result, the executive has prosecutorial discretion to choose how to allocate scarce resources with regard to which violations to prosecute and which to let slide. The Supreme Court has already ruled on this and found it constitutional. You can argue about whether or not that discretion is being abused (that is what is happening in the immigration debate) but the Supremes have found it to be a plenary, unreviewable power. It is the sole discretion of the executive to decide which cases to bring to trial. Obama and Holder decided in 2009 to not bring prosecutions in order to avoid having a political circus consume their time in office. That does not mean they cannot be brought in the future, butthe probably won’t. The only time the bosses get punished is when they are foolish enough to lose a war. Until then, they only people who will ever suffer for the tortures inflicted by the US are those lowly privates at Abu Ghraib. Nothing will ever happen to Cheney.
Yeah, the system works basically the same way in Canada - you always have laws and funds to enforce laws and bodies that are tasked with enforcing the laws using the funds. But that kind of administrative decision not to pursue a prosecution is different than actually making things legal. My understanding of congress is that they have to power to hold their own ability to punish international crimes, like crimes under the Geneva convention. They may not use that power, but it seems like they could be using the power if they really cared, completely independent of the administration.
I’m not not blaming Obama, I just think there is a lot of wringing of hands about prosecuting American torturers for American torture in both the executive and the legislative branch. Even if I’m misunderstanding Congress’ power to punish crimes, if Congress really wanted to they could actually pass a budget that earmarked funds for prosecuting American torturers which would put Obama in a bit of a pickle if he didn’t use those funds.
They won’t. This torture was largely Bush and Cheney’s thing. Not that that makes a big difference - Obama certainly didn’t choose to go after torturers and that wasn’t partisan, it was just complacent.
In the US system, Congress does not have the power of prosecution. That is constitutionally reserved for the executive branch. Even if Congress votes to cite someone for lying to Congress, that passes over to the Justice Department for actual prosecution.
What Congress CAN do is investigate the executive under their oversight power and sufficient embarrassment can lead to a special prosecutor or to impeachment. However, even that isn’t likely to happen so long as 40 votes in the Senate can block anything.
In principle, Congress can impeach a former president or lower official and that can lead to prosecution but I don’t have to explain how unlikely that is. There is nothing for current politicians to gain from embarrassing former politicians.
The separation of powers principle reserves prosecutions to the executive branch, subject to oversight from the legislative. It works differently in other countries (the Wikipedia article on universal jurisdiction is instructive here) but that is the US system.
Thanks for the information, I think I misread something in the powers of congress that appears to allow them to punish international crimes (such as piracy on the high seas) but looks like it may be referring only to certain narrow laws from the 1800s.
