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In Congress and courts, war on terror under fire

President Bush's global war on terror is drawing heavy fire on the home front, both from Congress and the courts.
US President George W. Bush speaks on th
President Bush speaks on the war on terror to members of the World Affairs Council of Western Michigan in East Grand Rapids, Mich., in April.Mannie Garcia / AFP - Getty Images file
/ Source: The Associated Press

President Bush's global war on terror is drawing heavy fire on the home front, both from Congress and the courts.

The president's assertion of extraordinary powers — from the limitless holding of "enemy combatants" to the warrantless surveillance of Americans — is under challenge from all directions.

A pair of recent rulings, one from a military court and the other from a federal appeals panel, delivered fresh legal broadsides against Bush's tactics for dealing with terrorism suspects.

The days for such anti-terrorism strategies may be numbered.

"I think that the next president, whether Democratic or Republican, is going to have to reverse course on some of these decisions," said Paul C. Light, professor of public policy at New York University. "You cannot assert yourself into a stronger presidency. That requires legislation, and then judicial review."

Democratic presidential contenders have been uniformly critical of the detainee policies championed by the president and Vice President Dick Cheney. Republicans have been generally more supportive, with the exception of Sen. John McCain, a former Vietnam prisoner of war.

Multiple efforts are under way in the Democratic-run Congress to put restrictions on Bush policies on detainees and terror suspects and to gain access to Justice Department documents related to domestic wiretapping. Bills that would give new rights to Guantanamo detainees recently have been approved by the Senate Armed Services and Judiciary Committees and are headed toward action in the full Senate.

Bush's pattern has been to push right up to the edge, and then back down if necessary — as when he agreed last January to modify the National Security Agency's no-warrant wiretapping program to put it under the supervision of a special court. That followed outcries from Democrats, civil-liberties groups and conservatives.

Overstepping presidential authority
The most recent challenge came this week from a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va. In a 2-1 decision, it said Bush may not declare civilians in this country to be "enemy combatants" and have the military lock them up indefinitely.

The court found Bush overstepped his authority when he declared that Ali al-Marri, a Qatar native living in Peoria, Ill., on a student visa, was an "enemy combatant" and placed him in military custody. Al-Marri has been detained since his December 2001 arrest, the past four years in solitary confinement in the Navy brig in Charleston, S.C.

The government contends al-Marri had trained in an al-Qaida camp in Afghanistan in the 1990s and was a "sleeper agent" and a national security threat.

But the appeals panel said: "Put simply, the Constitution does not allow the president to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them 'enemy combatants.'"

The administration is appealing the ruling to the full 4th Circuit court, long considered one of the most conservative in the country.

Last week, military judges ruled that the Pentagon could not prosecute two Guantanamo detainees because the government had failed to identify them as "unlawful" enemy combatants, as required by Congress, dealing a blow to efforts to begin prosecuting dozens of detainees. The distinction between classifications of enemy combatants is important because if they were "lawful," they would be entitled to prisoner-of-war status under the Geneva Conventions.

Scott Silliman, a Duke University law professor who was an Air Force lawyer for 25 years, said there's a strong likelihood that the 4th Circuit ruling on al-Marri may become the vehicle for a major Supreme Court case on how war-on-terror suspects are tried.

A real war on terror?
Silliman said the case presents constitutional issues that the court did not get into in previous rulings on Guantanamo detainees. And at some point, Silliman said, the high court may have to confront a central issue — is the war on terror a real war, as envisioned by the Constitution, or more like the war on poverty, say, or the war on drugs. "I think they will have to make that determination in some case that comes before them," Silliman said.

The Supreme Court ruled in June 2004 that foreigners deemed "enemy combatants" and held at Guantanamo are entitled to contest their detentions in U.S. courts. In June 2006, the justices threw out Bush's military tribunal system for Guantanamo detainees, saying it exceeded his authority and violated international treaties.

Congress, then led by Republicans, pushed through legislation authorizing war-crime trials for the detainees and denying them access to civilian courts. That law is now under multiple challenges.

Presidential press secretary Tony Snow says the administration will fight the recent adverse rulings — and he noted that the record is mixed, with the administration winning some cases. For instance, in April, the Supreme Court rejected an appeal from Guantanamo detainees who sought to challenge their five-year-long confinements in court.

"We think that court precedent supports the position that we have had when it comes to detainees," Snow said. Furthermore, he suggested holding "enemy combatants" during times of war "has been a long-standing practice within the United States, over decades."

But how does one gauge when hostilities have ended in a war on terror? "I don't know," Snow said.

The Gonzales factor
Another cloud over the terror-war program: the revelation in congressional testimony that Attorney General Alberto Gonzales — when he was Bush's White House counsel — pressured then-Attorney General John Ashcroft to certify the legality of Bush's eavesdropping program while Ashcroft was in intensive care.

Former Deputy Attorney General James Comey said Gonzales and White House chief of staff Andy Card went to Ashcroft's hospital room but failed to get him to back the policy.

Within a few days, the president amended his executive order.

With even conservatives in Congress and within the judiciary expressing unease about some Bush-Cheney interpretations of presidential power, support for current anti-terrorism detention policies seems to be ebbing.

"If there is another catastrophic attack on the American homeland, then all bets are off. But absent that, I think you're going to see a return to normalcy with regard to constitutional restraints on executive power," said Stephen J. Cimbala, a Penn State University political science professor who studies terrorism policy.