Bush Seeks to Affirm a Continuing War on Terror

By ERIC LICHTBLAU
August 30, 2008
NY Times

http://www.nytimes.com/2008/08/30/washington/30terror.html

WASHINGTON — Tucked deep into a recent proposal from the Bush administration
is a provision that has received almost no public attention, yet in many
ways captures one of President Bush’s defining legacies: an affirmation
that the United States is still at war with Al Qaeda. 

Seven years after the Sept. 11 attacks, Mr. Bush’s advisers assert that many
Americans may have forgotten that. So they want Congress to say so
and “acknowledge again and explicitly that this nation remains engaged in
an armed conflict with Al Qaeda, the Taliban, and associated organizations,
who have already proclaimed themselves at war with us and who are dedicated
to the slaughter of Americans.”

The language, part of a proposal for hearing legal appeals from detainees at
the United States naval base at Guantánamo Bay, Cuba, goes beyond political
symbolism. Echoing a measure that Congress passed just days after the Sept.
11 attacks, it carries significant legal and public policy implications for
Mr. Bush, and potentially his successor, to claim the imprimatur of
Congress to use the tools of war, including detention, interrogation and
surveillance, against the enemy, legal and political analysts say.

Some lawmakers are concerned that the administration’s effort to declare
anew a war footing is an 11th-hour maneuver to re-establish its broad
interpretation of the president’s wartime powers, even in the face of
challenges from the Supreme Court and Congress.

The proposal is also the latest step that the administration, in its waning
months, has taken to make permanent important aspects of its “long war”
against terrorism. From a new wiretapping law approved by Congress to a
rewriting of intelligence procedures and F.B.I. investigative techniques,
the administration is moving to institutionalize by law, regulation or
order a wide variety of antiterrorism tactics. 

“This seems like a final push by the administration before they go out the
door,” said Suzanne Spaulding, a former lawyer for the Central Intelligence
Agency and an expert on national security law. The cumulative effect of the
actions, Ms. Spaulding said, is to “put the onus on the next
administration” — particularly a Barack Obama administration — to justify
undoing what Mr. Bush has done. 

It is uncertain whether Congress will take the administration up on its
request. Some Republicans have already embraced the idea, with
Representative Lamar Smith of Texas, the ranking Republican on the
Judiciary Committee, introducing a measure almost identical to the
administration’s proposal. “Since 9/11,” Mr. Smith said, “we have been at
war with an unconventional enemy whose primary goal is to kill innocent
Americans.”

In the midst of an election season, the language represents a political
challenge of sorts to the administration’s critics. While many Democrats
say they are wary of Mr. Bush’s claims to presidential power, they may be
even more nervous about casting a vote against a measure that affirms the
country’s war against terrorism. They see the administration’s effort to
force the issue as little more than a political ploy.

Mr. Bush “is trying to stir up again the politics of fear by reminding
people of something they haven’t really forgotten: that we are engaged in
serious armed conflict with Al Qaeda,” said Laurence H. Tribe, a
constitutional scholar at Harvard and legal adviser to Mr. Obama. “But the
question is, Where is that conflict to be waged, and by what means.”

With violence rising in Afghanistan and Osama bin Laden still at large,
there are ample signs of the United States’ continued battles with
terrorism. But Mr. Bush and his advisers say that seven years without an
attack has lulled many Americans.

“As Sept. 11, 2001, recedes into the past, there are some people who have
come to think of it as kind of a singular event and of there being nothing
else out there,” Attorney General Michael B. Mukasey told House lawmakers
in July. “In a way, we are the victims of our own success, our own success
being that another attack has been prevented.”

Mr. Mukasey laid out the administration’s thinking in a July 21 speech to a
conservative Washington policy institute in response to yet another rebuke
on presidential powers by the Supreme Court: its ruling that prisoners at
Guantánamo Bay , were entitled to habeas corpus rights to contest their
detentions in court. 

The administration wants Congress to set out a narrow framework for those
prisoner appeals. But the administration’s six-point proposal goes further.
It includes not only the broad proclamation of a continued “armed conflict
with Al Qaeda,” but also the desire for Congress to “reaffirm that for the
duration of the conflict the United States may detain as enemy combatants
those who have engaged in hostilities or purposefully supported Al Qaeda,
the Taliban and associated organizations.” 

That broad language hints at why Democrats, and some Republicans, worry
about the consequences. It could, they say, provide the legal framework for
Mr. Bush and his successor to assert once again the president’s broad
interpretation of the commander in chief’s wartime powers, powers that
Justice Department lawyers secretly used to justify the indefinite
detention of terrorist suspects and the National Security Agency’s
wiretapping of Americans without court orders. 

The language recalls a resolution, known as the Authorization for Use of
Military Force, passed by Congress on Sept. 14, 2001. It authorized the
president to “use all necessary and appropriate force” against those
responsible for the Sept. 11 attacks to prevent future strikes. That
authorization, still in effect, was initially viewed by many members of
Congress who voted for it as the go-ahead for the administration to invade
Afghanistan and overthrow the Taliban, which had given sanctuary to Mr. bin
Laden. 

But the military authorization became the secret legal basis for some of the
administration’s most controversial legal tactics, including the
wiretapping program, and that still gnaws at some members of Congress. 

Senator Arlen Specter of Pennsylvania, the ranking Republican on the
Judiciary Committee, said he wanted to make sure the Bush administration —
or a future president — did not use that declaration as “another
far-fetched interpretation” to evade the law, the way he believes Mr. Bush
and aides like Alberto R. Gonzales, the former attorney general, did in
using the wiretapping program to avoid the Foreign Intelligence
Surveillance Act. 

“I don’t want to face another situation where we had the Sept. 14 resolution
and then Attorney General Gonzales claimed that that was authorization to
violate FISA,” Mr. Specter said. 

For Bush critics like Bruce Fein, a Justice Department official in the
Reagan administration, the answer is simple: do not give the administration
the wartime language it seeks. 

“I do not believe that we are in a state of war whatsoever,” Mr. Fein
said. “We have an odious opponent that the criminal justice system is able
to identify and indict and convict. They’re not a goliath. Don’t treat them
that way.”
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