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Detainee bill lifts Bush's power to new heights
President now has legal authority even courts can't challenge

New York Times | September 30, 2006
By Scott Shane, Adam Liptak

Washington -- With the final passage through Congress of the detainee treatment bill, President Bush achieved a signal victory Friday, shoring up with legislation his determined campaign against terrorism in the face of challenges from critics and the courts.

Rather than reining in the formidable presidential powers that Bush and Vice President Dick Cheney have asserted since Sept. 11, 2001, the law gives some of those powers a solid statutory foundation. In effect it allows the president to identify enemies, imprison them indefinitely and interrogate them -- albeit with a ban on the harshest treatment -- beyond the reach of the full court reviews traditionally afforded criminal defendants and ordinary prisoners.

Taken as a whole, the law will give the president more power over terrorism suspects than he had before the Supreme Court decision this summer in Hamdan vs. Rumsfeld that undercut more than four years of White House policy. It does, however, grant detainees brought before military commissions limited protections initially opposed by the White House. The bill, which cleared a final procedural hurdle in the House on Friday and is likely to be signed into law next week by Bush, does more than allow the president to determine the meaning and application of the Geneva Conventions; it strips the courts of jurisdiction to hear challenges to his interpretation.

And it broadens the definition of "unlawful enemy combatant" to include not only those who fight the United States, but also those who have "purposefully and materially supported hostilities against the United States." The latter group could include those accused of providing financial or other indirect support to terrorists, human rights groups say. The designation can be made by any "competent tribunal" created by the president or secretary of defense.

In very specific ways, the bill is a rejoinder to the Supreme Court's Hamdan ruling, in which several justices said the absence of congressional authorization was a central flaw in the administration's approach. The new bill solves that problem, legal experts said.

"I think he can reasonably be confident that this statute answers the Supreme Court and puts him back in a position to prevent another attack, which is the goal of interrogation," said Douglas Kmiec, a conservative legal scholar at the Pepperdine University School of Law.

But lawsuits challenging the bill are inevitable, and critics say substantial parts of it may well be rejected by the Supreme Court.

Overall, the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president.

Bruce Ackerman, a critic of the administration and a professor of law and political science at Yale University, sharply criticized the bill but agreed that it strengthened the White House position.

"The president walked away with a lot more than most people thought," Ackerman said. He said the bill "further entrenches presidential power" and allows the administration to declare even a U.S. citizen an unlawful combatant subject to indefinite detention. "And it's not only about these prisoners," Ackerman said. "If Congress can strip courts of jurisdiction over cases because it fears their outcome, judicial independence is threatened."

Even if the Supreme Court decides it has the power to hear challenges to the new law, the Bush administration has gained a crucial advantage. In adding a congressional imprimatur to a comprehensive set of procedures and tactics, lawmakers explicitly endorsed measures of the sort that in some other eras had been achieved by executive fiat. Earlier Supreme Court decisions have suggested that the president and Congress acting together in the national security arena can be an all but unstoppable force.

The debate over the limits of torture and the rules for military commissions dominated discussion of the bill until this week. Only in the last few days has broad attention turned to its redefinition of "unlawful enemy combatant" and its ban on habeas corpus petitions that suspects have traditionally used to challenge their incarceration.

Law professors will stay busy for months debating the implications. The most outspoken critics have compared the law's sweeping provisions to dark chapters in history, comparable to the passage of the Alien and Sedition Acts in the fragile years after the nation's founding and the internment of Japanese Americans in the midst of World War II.

Conservative legal experts, by contrast, said critics can no longer maintain that the Bush administration is guilty of unilateral executive overreaching. Congressional approval can cure many ills, Justice Robert Jackson wrote in his seminal concurrence in Youngstown Sheet & Tube vs Sawyer, the 1952 case that struck down President Harry Truman's unilateral seizure of the nation's steel mills during the Korean War.

Supporters of the law, in fact, say that its critics will never be satisfied. "For years they've been saying that we don't like Bush doing things unilaterally, that we don't like Bush doing things piecemeal," said David Rivkin, a former Justice Department official in the administrations of Ronald Reagan and the elder George Bush.

How the measure will look decades hence may depend not just on how it is used but on how the terrorist threat evolves. If major terrorist plots in the United States are uncovered -- and surely if one succeeds -- it may vindicate the congressional decision to give the government more leeway to seize and question those who might know about the next attack. But if the attacks of 2001 recede as a devastating but unique tragedy, the decision to create a new legal framework may seem like overkill.

 

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