Administration stays course in legal war

In its legal war on terrorism, the Bush administration has proved itself undeterred by apparent setbacks.

Faced with challenges involving spying, military tribunals and other anti-terrorism efforts it devised after Sept. 11, 2001, the administration has revised its legal rationales and shifted tactics a bit. But to a remarkable degree, it has continued on the same course as before -- to the frustration of its many critics.

“From the start, the approach has been to take the most aggressive positions in defense of public safety and to retreat only for tactical reasons,” said Washington attorney Brad Berenson, an associate White House counsel during President Bush’s first term. “There’s been no overall pullback.”

The latest example of this strategy of winning-by-avoiding-defeat came this week, when Atty. Gen. Alberto R. Gonzales announced that a special Justice Department court had approved a new round of wiretaps.

Previously, the administration said the president had an “inherent authority” to order -- without court approval -- wiretapping of terrorism suspects’ international calls, despite a 1978 law against such surveillance.

Bush’s claim sparked outrage from civil libertarians and sharp criticism on Capitol Hill, particularly from Democrats. This month, those Democratic critics took control of the House and Senate. Even before that, a federal judge in Detroit had declared Bush’s policy unconstitutional; that case is now before a U.S. appeals court.

Rather than continue toward a confrontation with the new Congress that could thwart the program, Gonzales told lawmakers Wednesday that Justice Department lawyers now would get court approval for their wiretaps. But while the change of course was seen by many as defeat for the administration, Bush and his attorney general treated it as a victory.

“Nothing has changed in the program, except the court has said, ‘We’ve analyzed it and it’s a legitimate way to protect the country,’ ” the president said in an interview with Tribune Broadcasting.

During a Senate hearing, Gonzales corrected critics who said the announcement meant the administration had “terminated” its efforts to intercept calls into and out of this country. He explained that the administration, to gain court approval, had changed its legal rationale for the wiretapping, rather than change the wiretapping program itself.

But he refused to explain this rationale, prompting anger and frustration among some Democrats.

“The attorney general was being purposely evasive,” said Rep. Adam B. Schiff (D-Burbank), who has worked on bills to overhaul and update the wiretapping law. “They are following the unilateralist approach again. They are saying, ‘We are going to bring it within [the court system], and we are not going to tell you how we are going to do it.’ ”

This pattern has been repeated over the last five years. Bold administration claims of authority in the war on terrorism have been followed by slow and grudging retreats. And in nearly every instance, a setback or about-face has not seriously hampered the administration.

In June, the White House suffered what many saw as a historic rebuke when the Supreme Court struck down Bush’s rules for military tribunals. The justices said the proposed system did not meet the standards of fairness set by the Geneva Convention or by the U.S. military code of justice.

Undaunted, the administration got the GOP-controlled Congress to write Bush’s proposal into law. And, to prevent further interference from the courts, the new law said judges could not hear pleas from “aliens” held by the U.S. military. By the year’s end, the Supreme Court defeat had been converted into a White House victory.

Four years ago, the Supreme Court took up a challenge to the administration’s policy of holding men captured in Afghanistan or Pakistan. In a split decision, the court said the government could hold these men as war prisoners, but it must give them some sort of hearing.

Though civil libertarians called that ruling a defeat for the administration, White House lawyers saw a victory. As Berenson said, “The detention power is the most important issue.”

Hundreds of men remain held at Guantanamo Bay, and they have been given only cursory hearings before a panel of military officers.

Regardless of how the administration views it, Georgetown University law professor David Cole said he believed this week’s announcement on wiretapping showed the era of unchecked executive power had ended. With the Democrats in control of Congress and a challenge working its way through the courts, Bush could no longer claim he had an inherent power to ignore the wiretapping law, he said.

“If you look at it over five years, it’s clear they have retreated on many fronts,” said Cole, a longtime administration critic.

Still, in many cases it’s hard to see how the retreats have substantively changed how the administration wages its war.

In 2002, Bush’s lawyers asserted that the president could order the arrest and imprisonment of Americans he deemed “enemy combatants.” These people can be held in U.S. military prisons without charges and barred from even speaking to a lawyer, they said.

In a secret memo, Bush’s lawyers also said the president could order the use of extreme pain to force captured men to talk, despite laws and treaties that bar the use of torture and cruelty.

Those policies, though widely condemned, still stand, revised but not repealed.

Last year, when the case of alleged enemy combatant Jose Padilla was due to come before the Supreme Court, the administration switched course and moved him from a military brig to a federal prison near Miami. He is being held there awaiting a trial.

A debate over torture and harsh treatment of prisoners had a similarly inconclusive end. Led by Sen. John McCain (R-Ariz.), a prisoner of war during the Vietnam War, Congress adopted a stricter ban on cruel and degrading treatment. Bush agreed to the bill but added a so-called signing statement last January saying he reserved the right to do what was necessary to “protect the American people from further terrorist attacks.”

Bush’s lawyers had argued that the CIA sometimes needed to use pressure and pain to force suspected terrorists to talk and to reveal plans for attacks.

david.savage@latimes.com