News Analysis: Loss for Bush on presidential power
By David E. Sanger and Scott Shane
Copyright by The New York Times
Published: June 29, 2006
WASHINGTON The Supreme Court ruling on Thursday marked the most significant setback yet for the administration's contention that the Sept. 11 attacks, and the "different kind of war" that has followed, justified one of the broadest expansions of presidential power in American history.
For President George W. Bush and Vice President Dick Cheney, who spent much of their first term bypassing Congress, the decision will probably force yet another negotiation over the extent of his powers, this time in the midst of a midterm election in which Bush's wartime strategies and their consequences have emerged as the prime issue of contention.
The ruling bolsters those in Congress who for months have been trying to force the White House into a reluctant retreat from its claims of unilateral authority to determine not only how terrorism suspects are tried, but also to set rules for domestic wiretapping, to interrogate prisoners and to pursue other wartime powers.
What the Court's 5-to-3 decision declared, in essence, was that Bush and Cheney overreached, and must now either use the established rules of courts-martial or go back to Congress - this time with vastly diminished leverage - to win approval for military commissions that Bush contends are the way to keep the nation safe.
For Bush, this is not the first such setback: The court ruled two years ago that the giant prison at Guantánamo Bay was not beyond the reach of American courts and that prisoners there have some minimal rights.
Then, last year, came the overwhelming 90-to-9 vote in the Senate, over Cheney's vociferous objections, to bar "cruel, inhumane and degrading" treatment of prisoners.
That forced Bush, grudgingly, to reach an accord with Senator John McCain, the Arizona Republican, on principles for interrogation that are still being turned into rules.
To Bush's critics, the court has finally reined in an executive who used the 9/11 attacks as a justification - or an excuse - to tilt the balance-of-power decidedly toward the White House.
"This is a great triumph for the rule of law and the separation of powers," said Bruce Ackerman, a professor of law and political science at Yale University. "The administration will have to go back to Congress and talk in a much more discriminating fashion about what we need to do."
Some allies of Bush reacted with bitterness on Thursday, suggesting that it was the court, rather than Bush, that had overreached.
"Nothing about the administration's solution was radical or even particularly aggressive," said Bradford Berenson, who served from 2001 to 2003 as associate White House counsel. "What is truly radical is the Supreme Court's willingness to bend to world opinion and undermine some of the most important foundations of American national security law in the middle of a war."
Just 10 days ago, speaking in Washington, Cheney cited the responses to Watergate and the war in Vietnam as examples of where he believed Congress had "begun to encroach upon the power and responsibilities of the president," adding that it was "important to go back and try to restore that balance."
Since taking office, Bush and Cheney have largely attempted to do so by fiat, sometimes with public declarations, sometimes with highly classified directives governing how suspects would be plucked from the battlefield or, in the case decided on Thursday, how they would be tried.
The president's tone on Thursday, during a news conference with Prime Minister Junichiro Koizumi of Japan just after he received what he called a "drive-by briefing" on the ruling, suggested that he recognized that he may have to give ground again.
He started off tentatively, saying he would be taking "the findings" of the Supreme Court - he never used the word "ruling" - "very seriously."
"One thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people."
But then he backtracked a bit, saying that he would "work with Congress" to give legal foundation to the system he has already put in place.
By David E. Sanger and Scott Shane
Copyright by The New York Times
Published: June 29, 2006
WASHINGTON The Supreme Court ruling on Thursday marked the most significant setback yet for the administration's contention that the Sept. 11 attacks, and the "different kind of war" that has followed, justified one of the broadest expansions of presidential power in American history.
For President George W. Bush and Vice President Dick Cheney, who spent much of their first term bypassing Congress, the decision will probably force yet another negotiation over the extent of his powers, this time in the midst of a midterm election in which Bush's wartime strategies and their consequences have emerged as the prime issue of contention.
The ruling bolsters those in Congress who for months have been trying to force the White House into a reluctant retreat from its claims of unilateral authority to determine not only how terrorism suspects are tried, but also to set rules for domestic wiretapping, to interrogate prisoners and to pursue other wartime powers.
What the Court's 5-to-3 decision declared, in essence, was that Bush and Cheney overreached, and must now either use the established rules of courts-martial or go back to Congress - this time with vastly diminished leverage - to win approval for military commissions that Bush contends are the way to keep the nation safe.
For Bush, this is not the first such setback: The court ruled two years ago that the giant prison at Guantánamo Bay was not beyond the reach of American courts and that prisoners there have some minimal rights.
Then, last year, came the overwhelming 90-to-9 vote in the Senate, over Cheney's vociferous objections, to bar "cruel, inhumane and degrading" treatment of prisoners.
That forced Bush, grudgingly, to reach an accord with Senator John McCain, the Arizona Republican, on principles for interrogation that are still being turned into rules.
To Bush's critics, the court has finally reined in an executive who used the 9/11 attacks as a justification - or an excuse - to tilt the balance-of-power decidedly toward the White House.
"This is a great triumph for the rule of law and the separation of powers," said Bruce Ackerman, a professor of law and political science at Yale University. "The administration will have to go back to Congress and talk in a much more discriminating fashion about what we need to do."
Some allies of Bush reacted with bitterness on Thursday, suggesting that it was the court, rather than Bush, that had overreached.
"Nothing about the administration's solution was radical or even particularly aggressive," said Bradford Berenson, who served from 2001 to 2003 as associate White House counsel. "What is truly radical is the Supreme Court's willingness to bend to world opinion and undermine some of the most important foundations of American national security law in the middle of a war."
Just 10 days ago, speaking in Washington, Cheney cited the responses to Watergate and the war in Vietnam as examples of where he believed Congress had "begun to encroach upon the power and responsibilities of the president," adding that it was "important to go back and try to restore that balance."
Since taking office, Bush and Cheney have largely attempted to do so by fiat, sometimes with public declarations, sometimes with highly classified directives governing how suspects would be plucked from the battlefield or, in the case decided on Thursday, how they would be tried.
The president's tone on Thursday, during a news conference with Prime Minister Junichiro Koizumi of Japan just after he received what he called a "drive-by briefing" on the ruling, suggested that he recognized that he may have to give ground again.
He started off tentatively, saying he would be taking "the findings" of the Supreme Court - he never used the word "ruling" - "very seriously."
"One thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people."
But then he backtracked a bit, saying that he would "work with Congress" to give legal foundation to the system he has already put in place.
posted by Carlos T Mock at 7:51 AM
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