Tod Lindberg expresses his surprise at seeing Congress negotiate and legislate in the detainee compromise

Tod Lindberg, Hoover fellow and editor of Policy Review, writes in his Washington Times column today about the astonishing spectacle of actually watching legislators negotiate and legislate in the whole detainee bill affair, in "More than Pork and Rubber," here. Regular readers of this blog, if there are any, will know that the failure of Congress to legislate a national counterterrorism policy, and the failure of the administration to bring proposed comprehensive counterterrorism legislation to it - whatever the substantive content of it - has been a theme here in recent months. So, Mr. Lindberg:

Every so often I retreat to the privacy of my cerebrum to debate the following proposition: Resolved, that the sole reason the United States remains democratic in character at the national level is the election of its president every four years, the Congress of the United States having become a dysfunctional and decadent institution. The majority of my neurons always vote to defeat the resolution, but it's amazing how close the "ayes" have come.

You could really see this over the past week or two by virtue of contrast, namely, with the debate in the Senate over the president's terrorism legislation. Already, with such terminology, the game is up: It's "the president's" legislation, as if it were up to the president to legislate. But in defense of this president, or any president, you can cite the old adage: The president proposes, Congress disposes. So why shouldn't the president show up on Capitol Hill with his draft legislation in hand a few weeks before an election, when his leverage is at its highest, and tell the august members of the House and Senate to "dispose" by approving what he wants without alteration, lest they face the political consequences?

The contrast came with the decision of Republican Sens. John McCain, Lindsey Graham and John Warner to take a different approach from what the president had in mind. I don't want to get into the substance of the difference or the question of which side I think had the better argument. I want us instead to behold and contemplate the odd and confusing spectacle of three senators acting like they had some freakin' constitutional mandate to decide what laws to pass.

Whoops, wait, that actually is their constitutional mandate. They're legislators.

And what a strange spectacle it is these days to see legislators legislating. Most of the media commentary could barely make sense of the phenomenon. How often did you hear something along these lines? "Republicans remained divided today over President Bush's terrorism legislation." As if it were the mission of Republicans in the executive and legislative branches to put aside their quaint constitutional roles and instead reach agreement in advance about that for which they will march in lockstep.

From the respective ideologico-partisan communities of each party, the premisewas the same, though of course the response varied accordingly. Conservatives were hopping mad at Messrs. McCain et al. for defying the president. Progressives (OK, liberals) were delighted at the infighting among Republicans. It is by now a time-honored Washington axiom that when your political opponents are fighting among themselves, you should get out of the way of the damage they are doing to their cause.

Oh boy, said the lucky Democrats, we can avoid political damage and embarrassment on this sensitive issue by letting Mr. McCain carry the opposition to Mr. Bush. Oh brother, said the bitter Republicans, here we are all set to inflict political damage and embarrassment on the Democrats and Mr. McCain blows it. And then what should happen, mirabile dictu, but Messrs. McCain et al. actually manage to cut a deal with the White House. Aaiiee, Democrats are caught on the horns of the dilemma of sticking with their praise of Mr. McCain for standing up to Mr. Bush and going along with him, or switching over to opposition having already ceded that the middle ground is where Mr. McCain was. Republicans are caught between their support for Mr. Bush then (contra Mr. McCain) and now (with Mr. McCain).

Why it's all perfectly stupefying, until you take into account that what actually appeared on the scene this September was that rarest of birds, the legislative process. Mr. McCain et al. weren't staking out a position of opposition to Mr. Bush. They were trying to reach an agreement with Mr. Bush. Their goal was legislation that addressed their concerns and that Mr. Bush would sign. This is unusual activity only if you think the jobs of Congress are A) to serve as a rubber stamp for what the president proposes; and B) to pass lots of pork-larded, lobbyist-written, special-interest-friendly laws designed to minimize the remote chance that they will ever be voted out of office.

Now, to be sure, most of the time A) and B) about cover the scope of congressional activity, not counting carping from the sidelines for political advantage. But for some members, such as Mr. McCain, Congress is still a place for deliberating over what the law should be. He sees himself as a legislator. And although the White House, too, seems to prefer (or at least to have gotten used to) a Congress made of pork and rubber, given the sudden appearance on the scene of a legislator who wants to legislate, lo and behold, it's deal-making time.

Imagine that. Congress acting like the legislative branch. The next thing you know, members will take it upon themselves to address pressing national problems on their own initiative, and not just when the president jams something at them and/or, as in this case, when the Supreme Court tells them they have to.