Bush's war powers hit hurdles: Congress and the Supreme Court

WASHINGTON — Since the terrorist attacks of Sept. 11, 2001, President Bush has asserted far-reaching powers enabling him to act without congressional approval.

The government detained "enemy combatants" in an elusive war on terror, wiretapped domestic telephone calls without court orders and collected voluminous phone and bank records.

But Thursday's Supreme Court decision, with its repudiation of military commissions for detainees at Guantánamo Bay, Cuba, was the latest signal that the high court and Congress, after a long deference to the executive branch, are starting to check or question the Bush administration's attempts to broaden the wartime power of the presidency.

The Supreme Court, in its ruling Thursday, insisted that Congress sanction any use of tribunals to try accused terrorists.

It was Congress that handed Bush an authority that he has often cited to support such activities as the National Security Agency's surveillance of people inside the United States who might be calling or e-mailing terrorists abroad. Three days after the Sept. 11 attacks, Congress authorized the use of military force against the perpetrators of the attacks, and the administration has asserted that not only the president's wartime powers under the Constitution but also this specific authorization of force have given Bush sweeping power.

But the Republican-run Congress has begun to intervene in the administration's assertion of unilateral authority to conduct the war on terror, with the passage of a law last year banning the torture of detainees after the exposure of military abuses of prisoners held at Abu Ghraib in Iraq.

More recently, the administration has complained bitterly about questions from a third front, with Bush, Vice President Dick Cheney and others lashing out at recent news accounts of the Treasury Department's secretive tracking of bank records in the hunt for the financial transactions made by terrorists. These reports followed earlier revelations by newspapers of the administration's collection of phone-calling records, secret surveillance of phone calls without warrants and operation of secret prisons for terror suspects in Eastern Europe.

Jonathan Turley, a law professor at George Washington University, called the court ruling the strongest — yet hardly the first — of "pushbacks" that the White House has faced in its pursuit of far-reaching wartime powers.

"9-11 gave them an opportunity that many of these people were looking for," Turley said, referring to Bush administration officials.

Cheney, along with his chief of staff, David Addington, who was a key player in the formation of the military tribunals, has devoted much of his time to regaining presidential powers that the vice president has said have deteriorated too far in the decades following the Watergate scandal.

"Part of the importance of this decision is that there is a rising concern that we are losing the fundamental checks and balances," Turley said.

The White House on Thursday maintained that the military tribunals are not part of a power struggle with Congress.

"I don't think it's ever been the goal of the administration to expand executive authority," White House spokesman Tony Snow said.

Bush said Thursday he would comply with the ruling and would work with Congress to devise some form of tribunal that met the court's legal standard.

"The American people need to know that this ruling, as I understand it, won't cause killers to be put out on the street," he said. " ... I understand we're in a war on terror; that these people were picked up off of a battlefield; and I will protect the people and, at the same time, conform with the findings of the Supreme Court."

Meeting the 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.

And although some Republicans in Congress, particularly in the Senate, have bristled at the administration's assertion of greater power, GOP strategists are likely to see advantages in moving such an issue into the realm of political debate before November's congressional elections.

White House political strategist Karl Rove has said repeatedly that the GOP's fall campaign will hammer the message that Democrats operate with a "pre-9/11" world view.

Compiled from the Chicago Tribune, McClatchy Newspapers and The Washington Post.