Bush forced to reverse course again

President allows review of NSA program after extending protections to terror suspects


WASHINGTON -- President Bush made two reluctant bows this week to the limits of his wartime powers, the latest examples, analysts said, of his administration's practice of asserting the broadest possible executive authority until forced to reverse course.

In a tentative deal with lawmakers announced yesterday, he said he would authorize a secret intelligence court to review the National Security Agency's surveillance program. Sen. Arlen Specter of Pennsylvania, the Republican Judiciary Committee chairman who drafted NSA legislation with Bush's support, announced the agreement on Capitol Hill, declaring that his bill constituted an acknowledgement "that the president does not have a blank check" even in wartime.

Bush's decision followed a Pentagon statement this week extending provisions of the Geneva Conventions to terrorism suspects - a stark reversal of a policy Bush set forth in the months after the 9/11 attacks. The shift suggests that the president, facing challenges from Congress and a recent Supreme Court rebuke, is adjusting his broad definition of presidential prerogatives, legal analysts said.

The moves are in keeping with the Bush administration's long-standing pattern on counterterrorism policies, in which the president takes the broadest possible view of his authority and pushes forward until told otherwise, either by Congress or the courts, said Bradford A. Berenson, a former Bush White House counsel.

"There have been changes of direction only because those changes have been forced on the administration," Berenson said.

The president is pushing for wide latitude on security issues, analysts said, but his recent steps show that his White House is rethinking how to fight terrorism within constraints it had previously refused to acknowledge.

The president will submit the NSA program to the Foreign Intelligence Surveillance Court if Specter's measure, which also grants the administration new surveillance powers, is enacted in its current form, said Dana Perino, a White House spokeswoman.

Bush has said he "absolutely" had the power to order the wiretaps without court approval or review, based on his constitutional power as commander in chief and the 2001 congressional resolution authorizing the use of force against terrorists. The White House maintains that the president has such power - the court review would be voluntary under this week's deal - but Bush's agreement represents a significant departure from his unilateral stance on the program.

The shift comes as the White House works with Congress to draft new detainee treatment policies in the wake of a Supreme Court ruling that said Bush had overstepped his authority in his bid to try Guantanamo Bay prisoners in military tribunals.

Those negotiations, coupled with Bush's agreement to submit the NSA surveillance program for judicial review, are "an indication that the president has everyone in the White House working on this problem, that they have decided that their essential goal is to have proper authority to conduct the war successfully, and now that the court has inserted itself, rightly or wrongly, they have to continue to pursue the war - now with constrained power," said Douglas W. Kmiec, a Pepperdine University constitutional specialist who served in Ronald Reagan's administration.

It represents not a philosophical change on Bush's part, but a bow to reality, Kmiec added: "The only choice they have is the one that they're making."

Signs of the administration's stepping back from its previous assertions of broad wartime power came this week as hearings opened on the detainee treatment issue. A memo circulated at the Defense Department said a key section of the Geneva Conventions - prohibiting, among other things, "cruel treatment and torture" and trials without sufficient "judicial guarantees" - applied to al-Qaida. Bush said in a February 2002 directive that the Geneva Conventions did not apply to the U.S. conflict with al-Qaida.

In interviews and in Capitol Hill testimony, administration officials said the document did not reverse policy since Bush has always pledged that detainees would be treated humanely and Defense Department policy applies that standard.

But it is contrary to a central argument the president has used to buttress his post-9/11 policies, particularly on the treatment of terrorism suspects: that as commander in chief, he has broad constitutional authority to decide how to protect the nation against external threats and that limits to that authority such as the Geneva Conventions would inappropriately interfere with those responsibilities.

"Despite the appearance of some about-faces, the administration's overall approach has remained very consistent, and that is to do everything possible based on the president's authority alone, and then make adjustments only when forced to do so by outside factors - whether that's an adverse court ruling or an obstreperous Senate chairman," said Berenson, the former Bush White House counsel.

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