The Bush Presidency: Setback?

Analysis: Ruling strikes at the core of Bush presidency

Friday, June 30, 2006
By Peter Baker and Michael Abramowitz, The Associated Press

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 them.

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 Mr. Bush's military tribunals for terror 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 Mr. 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. Now, lawmakers may have to figure out how much due process is enough for suspected terrorists -- hardly the issue many would be eager to engage in months before an election.

That sort of back-and-forth process is just what Mr. Bush has usually tried to avoid as he set about to prosecute an unconventional war against an elusive enemy following the attacks of Sept. 11, 2001. He asserted that in this new era a president's inherent constitutional authority was all that was needed.

Lawmaker 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 be treaties and statutes,' If you need to have these changed, you can go to Congress," Mr. Fein said. "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 Mr. Bush's hands now may be tied by the ruling written by Justice John Paul Stevens. "Stevens's 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.

Mr. Bush made no such protest himself yesterday, seemingly caught by surprise at the decision. He was meeting in the Oval Office with visiting Japanese Prime Minister Junichiro Koizumi and about to head out for a news conference when counselor Dan Bartlett and press secretary Tony Snow informed him of the ruling. White House counsel Harriet Miers then arrived and gave Mr. Bush what he called a "drive-by briefing," but he gave little real reaction when he met with reporters.

Mr. Snow later denied that the ruling undercut Mr. 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," Mr. Snow said.

Mr. 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, instead of civilian courts or courts-martial, to try terror suspects represented one of the adminstration's first steps after the al-Qaida attacks on New York and Washington to create a new legal architecture for handling terror cases.

As described by the New Yorker magazine 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 Mr. 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.

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 terror suspects in foreign countries. Only its National Security Agency telephone and e-mail surveillance stirred much protest in Congress.

The administration often fended off criticism by arguing that the commander-in-chief should not be second-guessed. Dickinson College professor Andrew Rudalevige, author of "The New Imperial Presidency," commented: "The Bush administration has been very successful in defining the debate as one of patriotism or cowardice. And this is not about that. This is about whether, in fighting the war, we're true to our constitutional values."

Even some Bush supporters yesterday said it may be appropriate now to revisit decisions made ad hoc in a crisis atmosphere, when a president's natural instinct is to do whatever he thinks is necessary to guard the nation against attack.

"That's what presidents do, and I say thank goodness for that," said George J. Terwilliger III, deputy attorney general under former President George H.W. Bush. "But once you get past that point, ... both as a matter of law and a matter of culture, a more systemic approach to the use of authority is appropriate."

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