Bush Writes Off Congress, Takes Reins in War

The message from the Senate Democrats to the Bush White House last week was: Let’s be partners in the war against terrorism.

“That’s how the founders and our Constitution intended it. Under our system, none of us has a monopoly on authority,” Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) told Atty. Gen. John Ashcroft.

The American people will have greater confidence if the rules for this new war are “undertaken by partners in our country’s effort against a common and terrible enemy,” said Leahy, the Democrats’ point man.

The Bush team responded with a clear but polite “No, thank you.”

“The constitutional founders didn’t expect us to have a war conducted by committee,” Ashcroft told his former Judiciary Committee colleagues. “The Constitution vests the president with the extraordinary and sole authority, as commander in chief, to lead our nation in times of war.”

The back-and-forth exchange at a committee hearing Thursday illustrated the growing power struggle playing out in Washington over a war whose boundaries are yet to be drawn.

No one has questioned the president’s authority to send U.S. troops into battle in Afghanistan. But controversy has arisen over a series of orders issued by President Bush and his attorney general that expand the government’s power to fight terrorism at home--from detaining hundreds of foreigners to holding military tribunals to prosecute noncitizens.

Truman’s Action in 1952 Was Overruled

On the question of presidential authority, the Republicans’ favorite role model is Democratic President Franklin D. Roosevelt. During World War II, Roosevelt ordered the detention of Japanese Americans on the West Coast and a secret military trial for eight Nazi saboteurs who had landed on the Atlantic beaches.

The wartime experience of FDR’s successor, however, and the legal precedent it set for a foreign-domestic delineation of presidential power, is often forgotten.

In 1952, with U.S. troops fighting in Korea, President Harry S. Truman seized control of the nation’s steel mills when unions went on strike and ordered military troops to keep the mills operating. The president cited his powers as commander in chief, but the Supreme Court ruled he had gone too far.

Justice Robert H. Jackson, who had served under FDR, said the president’s wartime power is limited on the home front, especially when he acts on his own. Truman had not asked for congressional approval before seizing the mills.

“We should not use this occasion to circumscribe, much less contract, the lawful role of the President as Commander in Chief,” Jackson wrote. “I should indulge [him] the widest latitude . . . to command the [military], at least when turned against the outside world for the security of our society. But when it is turned inward, it should have no such indulgence. His command power is not such an absolute, . . . but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch is a representative Congress.”

Nevertheless, Bush and his advisors are determined to fight terrorism on their own terms and without interference by Congress.

And so long as the public strongly supports the president’s efforts, Congress is unlikely to stand in the way, or even demand a voice in making policy. Concern for civil liberties aside, the political risk of appearing to side with the terrorists could be too high.

On Sept. 14, just three days after the terrorist attacks, Congress passed a broadly worded resolution authorizing Bush to “use all necessary and appropriate force” to retaliate and to “prevent any future acts” of international terrorism.

Since then, the government has detained more than 1,200 suspects and refused to say who they are and why they are being held. New rules allow federal agents to listen in on some jailhouse conversations between these suspects and their lawyers. Ashcroft has increased FBI surveillance of groups that might have links to terrorists. And the White House has said it may use military tribunals to prosecute some noncitizens charged with terrorism offenses.

Grudgingly, Ashcroft negotiated with Leahy to win congressional approval of counter-terrorism legislation. But on other efforts--including the military trials--the administration has said that it can proceed without the approval of Congress.

“We’re fighting a war,” Bush said last week about the military tribunals. “I need to have that extraordinary option at my fingertips.”

The Senate Democrats say they can see a need for this “extraordinary option” but do not see why it should not be established--and restricted--by law.

On Capitol Hill, this dispute is partisan and personal.

The Senate Judiciary Committee has been the scene of bitter battles between liberals and conservatives and, as the GOP senator from Missouri, Ashcroft was one of its most aggressively conservative members.

When Bush chose him as attorney general, all but one of Ashcroft’s former Democratic colleagues voted against him. Wisconsin’s Sen. Russell D. Feingold said he knew Ashcroft personally and did not think he would be the firebrand that critics had conjured up.

Since Sept. 11, however, Feingold has emerged as Ashcroft’s sharpest critic in the Senate, and during Thursday’s hearing, they engaged in several frosty exchanges.

Ashcroft also has a testy relationship with Leahy. During the Clinton years, Leahy chafed at the moves by Ashcroft and other conservative Republicans to block the president’s nominees to the federal courts. This year, the two have switched sides, and Leahy and the Democrats are blocking a series of Bush nominees.

Many Disapprove of Military Tribunals

In general, the senators have mastered the art of smiling through clenched teeth. But on the historic and controversial questions surrounding the nation’s response to the Sept. 11 attacks, Bush administration officials have generated animosity by making clear that they are not interested in collaborating with Congress.

White House lawyers have been determined to assert the president’s legal power. They wrote the Nov. 13 order authorizing military trials and gave it an unusually broad reach.

It allows the president to detain and try in military court noncitizens if they have “engaged in, aided or abetted, or conspired to commit” acts of terrorism. The order also appeared to close the courthouse door to any appeals. “Military tribunals shall have exclusive jurisdiction” over these individuals, and they may not “seek any remedy or maintain any proceeding . . . in any court of the United States.”

More recently, Ashcroft and other administration officials have said that they plan to use military trials for “war crimes” only, and probably only for terrorists captured abroad.

During Thursday’s hearing, Leahy announced that he had drafted legislation to allow limited use of the military trials. Sens. Dianne Feinstein (D-Calif.) and Charles E. Schumer (D-N.Y.) also said they were interested in pressing a bill that would authorize the military trials.

“We should pass an authorizing resolution that really gives you, as the executive branch, the authority to do what you need and also states some things like the standard of proof, like whether it’s open or partially closed [and] the right to counsel,” Feinstein said.

But the administration’s lawyers said privately that they were not interested in help from the Democrats.

“They have decided they are not going to stand in the road and block the way” on tribunals, but “now they want to get in the front seat and drive,” one administration official said after the hearing.

Dispute Over Power in Wartime Not New

This clash also reflects a profound and recurring constitutional dispute over who has the power to set the rules in wartime.

The Constitution seems to give authority to Congress. It says, “Congress shall have the power to declare war . . . and to make rules concerning captures on land and water.” Congress also has the power “to define and punish . . . offenses against the law of nations . . . [and] to constitute tribunals inferior to the United States.”

In contrast to these broad rule-making powers of Congress, the president is described as the executive who carries out the rules. “The President shall be the commander in chief of the Army and Navy,” the Constitution says, and “he shall take care that the laws be faithfully executed.”

But over two centuries of American history, the balance of power has shifted toward the president. After World War II and the advent of nuclear weapons, it was commonly said that the president needed the power to go to war instantly, without waiting for congressional approval.

And, despite much debate and hand wringing, Congress has not moved aggressively to assert its own authority.

This fall, when the White House took up the idea of military trials, the president and his advisors did not even bother to tell members of Congress, let alone ask for their approval or input.

In this instance, the president’s conservative lawyers, who usually are devoted to the Constitution’s “original meaning,” are believers in the evolving Constitution. Regardless of what was originally intended, they say the president has the “sole authority” to lead in wartime, as Ashcroft put it.

Siding with the White House, Senate Republicans say they see no need for legislation.

“We’re at war,” Sen. Orrin G. Hatch (R-Utah) advised his Democratic colleagues Thursday. “I would hope that in this time of crisis we would all check our egos.”