[Infowarrior] - Bush Seeks to Affirm a Continuing War on Terror

[Richard Forno]

August 30, 2008
Bush Seeks to Affirm a Continuing War on Terror
By ERIC LICHTBLAU

http://www.nytimes.com/2008/08/30/washington/30terror.html?_r=1&hp=&oref=slogin&pagewanted=print

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.”