Wartime President Is Again Outflanked

Times Staff Writer

Ever since Sept. 11, 2001, when terrorists seized four jetliners and caused the deaths of nearly 3,000 people, President Bush has declared that the United States is at war -- and in wartime, presidents assume emergency powers they would not claim in times of peace.

Bush and his aides said they had a right to imprison suspected terrorists, including U.S. citizens, without court hearings. They asserted a prerogative to keep more secrets than before from Congress, the media and the public. And at one point, the Justice Department claimed the president could ignore laws prohibiting torture, under his “inherent authority” as commander in chief.

But in an unusual series of reversals in recent weeks, the Supreme Court, Congress and public opinion all have intervened to draw new limits on the president’s wartime authority.

On Monday, the court ruled that the federal government could not hold suspected terrorists indefinitely without allowing them to challenge their detention in legal hearings, a significant setback for the administration.


Earlier this month, the administration was embarrassed by a 2003 memo that claimed a presidential right to override laws regulating torture or, for that matter, any other military conduct. The White House, facing a public-opinion storm, promptly disavowed the policy.

Before that, the administration sought to withhold documents and witnesses from a congressionally created commission investigating the Sept. 11 attacks, claiming they were sheltered by the right of executive privilege. But after protests from members of both parties in Congress, the administration backed down.

“For a year after 9/11, the executive branch got the benefit of the doubt,” said Norman J. Ornstein, a political scientist at the predominantly conservative American Enterprise Institute. “That was the case, for example, when Congress voted to authorize the war in Iraq. But it’s not the case anymore.”

“Part of it is time passing” since the terrorist attacks, he added. “I couldn’t say the court’s decisions would have been different if it were, say, three months after 9/11, but they very well might have been.”


Douglas W. Kmiec, a Justice Department official in the Reagan administration who is now at Pepperdine Law School, agreed.

“It would have been interesting to know how different the outcome would have been if we had more recently suffered an attack on the homeland,” he said. “I do think the 9/11 commission and the furor over the administration’s decision-making on interrogation policy affected the court’s judgment.”

Kmiec said the decisions were “an appropriate reminder of the importance of civil liberties, even in wartime.”

Earlier presidents also claimed emergency powers in wartime.

The Supreme Court has rarely intervened -- and then, “only after the combat was over,” Kmiec noted.

During the Civil War, Abraham Lincoln ordered more than 13,000 suspected rebels detained without access to the courts. During World War II, Franklin D. Roosevelt sent Japanese Americans to detention camps, and the Supreme Court approved.

“But the war on terrorism is potentially endless, and that posed a problem for the court,” Kmiec said. “We are certainly in a zone of twilight between outright combat and normalcy, and we want to reacquire as much normalcy as possible.”

“These are decisions that were made while the war is still on in Iraq and the threat of terrorism remains real,” agreed Walter E. Dellinger III, a former Clinton administration official who now teaches law at Duke University. “These are not cases where the court is writing from the comfort of an armistice having been signed.”


Dellinger and other liberals described Monday’s decisions as bold, sweeping and stinging in their effect on the Bush administration.

“The opinions cut the heart out of the position that was argued in the [Justice Department] memorandum on the president’s authority to order torture,” he said. “They are sweeping in their affirmation of the right of judicial process.”

“It’s a major loss for the position of the executive branch,” agreed Lawrence H. Tribe, a professor at Harvard Law School. “A strong majority of the court has said ... ‘We won’t interfere with the executive’s conduct of the war -- but the executive can’t interfere with the courts’ task of making sure the Constitution’s core principles are obeyed.’

“So the system has pushed back. And it’s a push-back on several fronts -- the courts, the 9/11 commission and public opinion.”

But conservatives such as Kmiec argued that the decisions, while they limited the president’s powers, should not be seen as a major rebuff to Bush.

“This is no Michael Moore opinion,” he said, referring to the ferociously anti-Bush director of the film “Fahrenheit 9/11.” “The tone of these opinions is not chastisement -- which was certainly the tone of the Supreme Court when it told [then-President] Harry Truman that he couldn’t seize the steel mills.” Truman claimed the power to take over the steel industry during the Korean War in 1952, but lost.

“The executive branch asked for more latitude than they got, but they got substantially what they wanted,” Kmiec argued. He noted that while the court said detainees must be given a hearing, it left open the possibility that the hearing could be conducted by a military tribunal, with rules that grant the government the presumption of a valid case. “We’re not at a peacetime setting,” he said.

In another recent case that focused on executive power, he noted, the administration won its point: a lawsuit demanding that Vice President Dick Cheney release records of his energy policy task force. Last week, the court overruled a judge’s order that would have required Cheney to release the records, saying the president and the vice president were entitled to shield their internal discussions from outside eyes.


Ornstein noted that in Congress, the administration is facing more criticism and scrutiny of its actions than at any time since Sept. 11 -- most notably, the scandal over abuses at the Abu Ghraib prison in Iraq, but other issues as well.

“For a long time, Congress’ relationship with Bush has been like battered-wife syndrome,” he said. “The administration didn’t just take Congress for granted; it abused people. But now, as we are getting closer to the election, they are getting more push-back.

“The political context has changed, and of all the things that have happened, Abu Ghraib has made the biggest difference politically.

“There’s an old saying: The Supreme Court follows the election returns. In this case, who knows? They may actually be anticipating the election returns.”