GOP Has a Fix in Mind, but It May Not Be Easy

Times Staff Writers

Since the 2001 terrorist attacks, President Bush has asserted almost unlimited authority to define the rules of what he calls “a different kind of war.” Faced with the Supreme Court’s rejection of administration policies on “enemy combatants” Thursday, the White House signaled that it had no intention of backing down.

Meeting the high court’s objections required little more than having Congress put its stamp of approval on a system of military tribunals, the White House suggested. And some congressional Republicans quickly agreed.

“The Supreme Court did not require these people to be let go. They simply said, If you want to try them, Mr. President, you need to get Congress involved.’ I agree,” Sen. Lindsey Graham (R-S.C.), a former military lawyer, told CNN.


“Once we do that,” he added, “I think this problem will be behind us.”

He predicted hearings beginning as early as July, with a vote on a plan in September.

Nonetheless, the court’s ruling unquestionably rejected the president’s assertion of executive power. And the result may be an election year debate on some of the most basic, and controversial, tenets of the Bush presidency, including its claims of unfettered authority and its approach to international agreements such as the Geneva Convention.

In claiming broad latitude to act, Bush has relied on Congress’ original authorization for conducting the war on terrorism. But the Supreme Court specifically said that act contained no explicit authorization to ignore existing laws on judicial procedure and hinted that it might take the same position on other assertions of executive authority on terrorism, potentially including spying on domestic communications and financial transactions.

The White House response was essentially to move the issue into the political arena by announcing it would seek congressional approval for its approach to prosecuting foreign terrorism suspects.

Thus far, the GOP-dominated House and Senate have given Bush almost everything he has asked for when it comes to fighting the U.S.-declared war on terrorism.

Republican strategists are likely to see huge advantages in moving such an issue into the realm of political debate before November’s congressional elections. In that sense, Thursday’s decision could be a political plus for the GOP.

White House political strategist Karl Rove has said repeatedly that the party’s fall campaign will hammer the message that Democrats operate with a “pre-9/11” worldview, and Republicans will attempt to paint Democrats critical of military tribunals as being soft on terrorism.


Still, whatever the immediate political implications, moving concrete legislation through Congress will add a major item to the White House agenda, and some Republicans, especially in the Senate, have grown increasingly wary of the administration’s efforts to enhance executive power.

Moreover, whatever emerges must satisfy the Supreme Court.

“The overriding debate has been whether we are in a situation where the executive needs to have unfettered power, or do basic checks and balances still apply,” said Harold Koh, dean of the Yale Law School. “The court said today that checks and balances still apply, and on this issue you have clearly overreached.”

It was not immediately clear exactly how the White House and its allies in Congress would proceed. But Tony Snow, the White House spokesman, said Thursday that Bush remained determined to assert his authority and, even with the court ruling, there was no “implicit curtailment of his ability to fight the war on terror.”

Though Snow acknowledged that the ruling reflected a “disagreement” between the judicial and executive branches, he stood by the administration’s initial logic as an “appropriate way to bring to justice people who are not enemy combatants in the traditional sense.”

“It was the interpretation of the administration that military commissions were historically and legally an appropriate way to proceed,” he said. “What the Supreme Court has not said is you can’t try [terrorism suspects]; it hasn’t said you can’t bring them to justice. I think now it’s a question of how properly to do that. So it doesn’t tie his hands.

“What it says is that the Supreme Court disagrees with the method that has been designed right now by the administration, and it says, ‘We want you to go back and consult with Congress,’ ” Snow said.


Even as administration critics hailed the court ruling as evidence of Bush’s continuing “overreach” in his pursuit of the war on terrorism, the White House insisted the combatants’ case would not affect other tactics enacted without congressional oversight such as warrantless surveillance of certain phone calls, e-mails and bank transactions.

“You’re talking apples and oranges here,” Snow said.

Nor was the White House retreating from its broader goal of strengthening the executive branch even beyond matters of war, a goal that Vice President Dick Cheney has outlined from the early days of Bush’s presidency.

Cheney, along with his chief of staff, David S. Addington, has devoted much of his time to regaining presidential powers that the vice president has said have deteriorated too far in the decades after the Watergate scandal.

“I don’t see how anybody inside the White House could look at the broadest range of decisions that have been made and say anything other than that they’ve gained at least 85 yards down the field,” said Norman J. Ornstein, an American Enterprise Institute scholar on executive-legislative relations.

“If you gain 85 yards and suffer one sack,” he added, “you’re still winning the game.”

Douglas Kmiec, a Pepperdine University law professor, picked up Ornstein’s football analogy, referring to the ruling as a “forced fumble” but saying that where the ball might go remained unclear.

“I don’t think that means he’s going to change the substance of the process much,” Kmiec said of Bush. “That puts the ball that’s loose in Congress’ hands. Will they go in the same direction? There will be an enormous temptation to go home in the summer and put off action.”


Administration officials suggested Thursday that some form of courts-martial might suffice for trying terrorism suspects. And Sen. Graham said in an interview that he was “optimistic that the White House is going to be reasonable, will embrace the court decision and come to Congress to be a willing partner in creating a military commission that will protect our country and be fair.”



By the numbers

450 prisoners now held at Guantanamo Bay.

10 charged with conspiring with Al Qaeda.

287 released or transferred to other governments.

115 deemed eligible for release or transfer.

65 deemed likely to be prosecuted if the court had ruled differently.

Source: Times staff