Bush's bid to unsnarl law on terrorism
President Bush faces an array of challenges on issues from warrantless wiretaps to military tribunals.
In the five years since the 9/11 attacks, President Bush has made good on promises to protect the nation from terrorism. But this success has come at a price.
In dramatic announcements this week, the president acknowledged making difficult choices that he says saved American lives. At the same time, Bush's aggressive use of commander in chief powers is exposing the White House to an unprecedented array of legal challenges. Among them:
•His system for military tribunals at Guantánamo, Cuba, was struck down as unfair and illegal by the US Supreme Court in June.
•His unilateral decision to allow the National Security Agency (NSA) to conduct warrantless surveillance operations on American soil was declared illegal and unconstitutional by a federal judge in August.
•His authorization of coercive interrogation tactics overseas could subject American soldiers and Central Intelligence Agency officials to war-crimes charges.
Now, the White House is asking Congress to clean up some of the legal fallout from the war on terror. With nine weeks left until midterm elections, political analysts say Bush will probably get at least some help from lawmakers.
The administration is asking Congress to enact a new statutory scheme to conduct war-crimes trials at Guantánamo. The White House wants lawmakers to create a retroactive exemption to shield US officials from legal liability for use of harsh, coercive interrogation tactics. And the administration is backing efforts in Congress to endorse the NSA's secret surveillance program.
Although his administration has been knocked on its heels in court, Mr. Bush is on the offensive, taking his case directly to the people in a series of speeches this week.
In comments on Thursday, he defended the NSA surveillance program, saying it was necessary because of major changes in communications technology since 1978 when the wiretapping law was passed.
"The terrorists who want to harm America can now buy disposable cellphones and open anonymous e-mail addresses. Our laws need to change to take these changes into account," Bush said. "If an Al Qaeda commander or associate is calling in the United States, we need to know why they are calling, and Congress needs to pass legislation supporting this program."
In a speech Wednesday, Bush acknowledged publicly for the first time that the US had held nearly 100 Al Qaeda suspects in secret CIA prisons overseas and subjected them to aggressive interrogation tactics.
He said "alternative" interrogation procedures were used by the CIA to force reluctant Al Qaeda leaders to talk.
"This program has been and remains one of the most vital tools in our war against the terrorists," Bush said. "Were it not for this program, our intelligence community believes that Al Qaeda and its allies would have succeeded in launching another attack against the American homeland."
The Washington Post has reported that the CIA used tactics such as water- boarding, sleep deprivation, and loud music for prolonged periods.
Administration officials declined to discuss specific techniques. But Bush insisted that the US does not use torture.
In his Wednesday speech, the president revealed that no Al Qaeda suspects are currently being held in secret CIA prisons. But he said it remains an option for future detainees.
Bush said the last 14 Al Qaeda officials – including suspected 9/11 mastermind Khalid Sheikh Mohammed – were recently transferred from CIA custody to the Guantánamo detention camp for possible war-crimes trials.
The move increases pressure on members of Congress to authorize some form of new rules for military commissions. But it remains unclear to what extent Congress will embrace the administration's proposed commission rules.
The draft legislation sent to Congress by the White House includes many of the same controversial provisions featured in the commission rules struck down by the Supreme Court two months ago. Chief among them is a rule that would allow a defendant to be barred from parts of his trial dealing with classified evidence. Although he would continue to be represented in court by a military-appointed defense attorney, the lawyer would be ordered not to reveal the content of the classified evidence to his or her client.
Administration officials say the measure is necessary to protect sensitive intelligence sources and methods during the ongoing war on terror. Critics say it undermines defense efforts and raises fair trial questions by excluding the one individual from the courtroom in the best position to effectively confront the evidence against him.
The administration's military commission bill also allows for the introduction of hearsay evidence and evidence obtained through coercive interrogations, though not torture. And it allows prosecutors to file broad conspiracy charges covering alleged agreements to engage in war crimes, rather than requiring prosecutors to overcome the tougher challenge of proving a defendant took concrete steps toward committing specific atrocities.
On the interrogation front, the administration is asking Congress to clarify federal law in an effort to protect US officials from possible prosecution for alleged violations of Common Article 3 of the Geneva Conventions.
"The need for this legislation is urgent," Bush said. "We need to ensure that those questioning terrorists can continue to do everything within the limits of the law to get information that can save American lives."
Prior to the Supreme Court's decision in June, the US government had taken the position that Common Article 3 did not apply in the war against Al Qaeda.
The Supreme Court disagreed. It ruled that Common Article 3 established a basic level of humane treatment requiring compliance by all signatory nations.
The ruling created concern within the Bush administration because US law provides that any violation of Common Article 3 is a felony. The problem is that while Common Article 3 outlaws acts that are universally condemned, such as murder, rape, and torture, it also forbids "outrages upon personal dignity" and "humiliating and degrading treatment."
Murder, rape, and torture are easily defined, but "outrages upon personal dignity" and "humiliating treatment" could embrace a wide range of human behavior including many of the tactics used to interrogate Al Qaeda suspects. To avoid such potential liability, the administration's bill sets out nine offenses that officials say constitute clear violations of Common Article 3, including murder, torture, rape, and cruel or inhuman treatment.