Bush's other wartime powers now in question

ANALYSIS
Bush's other wartime powers now in question
Peter Baker, Michael Abramowitz, Washington Post
Friday, June 30, 2006






(06-30) 04:00 PDT Washington -- For five years, President Bush waged war as he saw fit. If intelligence officers needed to eavesdrop on overseas telephone calls without warrants, he authorized it. If the military wanted to hold terror suspects without trial, he let it.

Now the Supreme Court has struck at the core of his presidency and dismissed the notion that the president alone can determine how to defend the country. In rejecting Bush's military tribunals for terrorist suspects, the high court ruled that even a wartime commander-in-chief must govern within constitutional confines significantly tighter than this president has believed appropriate.

For many in Washington, the decision echoed not simply as matter of law but as a rebuke of a governing philosophy of a leader who at repeated turns has operated on the principle that it is better to act than to ask permission. This ethos is why many supporters find Bush an inspiring leader, and why many critics in this country and abroad react so viscerally against him.

At a political level, the decision carries immediate ramifications. It provides fodder to critics who turned Guantanamo Bay into a metaphor for an administration run amok. Yet now lawmakers may have to figure out how much due process is enough for suspected terrorists, hardly the sort of issue many would be eager to engage in in the months before an election.

That sort of back-and-forth process is just what Bush has usually tried to avoid as he set about to prosecute an unconventional war against an elusive enemy after the attacks of Sept. 11, 2001. He asserted that in this new era, a president's inherent constitutional authority was all that was needed. Lawmakers and judges largely deferred to him, with occasional exceptions like a Supreme Court decision two years ago limiting the administration's ability to detain suspects indefinitely.

"There is a strain of legal reasoning in this administration that believes in a time of war the other two branches have a diminished role or no role," Sen. Lindsey Graham, R-S.C., who has resisted the administration's philosophy, said. "It's sincere, it's heartfelt, but after today, it's wrong."

Bruce Fein, a former Reagan administration official, said the ruling restores balance in government. "What this decision says is, 'No, Mr. President, you can be bound to treaties and statutes,' " he said. " 'If you need to have these changed, you can go to Congress. This idea of a coronated president instead of an inaugurated president has been dealt a sharp rebuke.' "

The administration's allies, however, were disturbed that Bush's hands now may be tied by the ruling written by Justice John Paul Stevens. "Stevens' opinion was quite shocking in its lack of discussion of the president's independent authority," said Andrew McBride, a former Justice Department official who wrote a brief supporting the administration on behalf of former attorneys general and military lawyers.

White House press secretary Tony Snow denied that the ruling undercut Bush's authority.

"I don't think it weakens the president's hand, and it certainly doesn't change the way in which we move as aggressively as possible to try to cut off terrorists before they can strike again," Snow said.

Bush came to office already intent on expanding executive power even before Sept. 11, 2001 -- encouraged in particular by Vice President Dick Cheney, who has long been convinced that presidential authority was improperly diminished after Watergate.

The decision to create military commissions to try terror suspects instead of civilian courts or courts-martial represented one of the first steps by the administration after the Sept. 11 attacks to create a new legal architecture for handling terror cases.

As described by the New Yorker this week, the executive order establishing military commissions was issued without consultations with then-Secretary of State Colin Powell or then-national security adviser Condoleezza Rice, after a concerted legal push by Cheney's legal adviser David Addington, now his chief of staff.

"Rather than push so many extreme arguments about the president's commander-in-chief powers, the Bush administration would have been better served to work something out with Congress sooner rather than later -- I mean 2002 rather than 2006," said John Radsan, a former CIA lawyer who now teaches law at William Mitchell College of Law, in St. Paul, Minn.

The administration relied on a similar view of its power in detaining U.S. citizens indefinitely as enemy combatants, denying prisoners access to lawyers or courts, rejecting the applicability of the Geneva Conventions in some instances, employing harsh interrogation techniques and establishing secret CIA prisons for terrorist suspects in foreign countries. Only its National Security Agency telephone and e-mail surveillance program stirred much protest in Congress.

The administration often fended off criticism by arguing that the commander-in-chief should not be second-guessed.

"The Bush administration has been very successful in defining the debate as one of patriotism or cowardice," said Andrew Rudalevige, author of "The New Imperial Presidency" and a Dickinson College (Carlisle, Pa.) professor. "And this is not about that. This is about whether in fighting the war we're true to our constitutional values."

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