For Bush, series of setbacks becomes series of victories

Administration changes tactics, but continues on same paths

Analysis

January 20, 2007|By David G. Savage | David G. Savage,Los Angeles Times

WASHINGTON -- In its legal war on terrorism, the Bush administration has proved itself undeterred by apparent setbacks.

Faced with challenges involving spying, military tribunals and other anti-terrorism efforts it devised after Sept. 11, the administration has revised its legal rationales and shifted tactics a bit. But to a remarkable degree, it has continued on the same course as before - to the frustration of its many critics.

"From the start, the approach has been to take the most aggressive positions in defense of public safety and to retreat only for tactical reasons," said Washington attorney Brad Berenson, an associate White House counsel during President Bush's first term. "There's been no overall pullback."

The latest example of this strategy of winning-by-avoiding-defeat came this week, when Attorney General Alberto R. Gonzales announced that a special court within the Justice Department had approved a new round of wiretaps.

Previously, the administration said the president had an "inherent authority" to order - without court approval - wiretapping of the international calls by terrorism suspects, despite a 1978 law that made such surveillance a crime.

Bush's claim was met with outrage from civil libertarians, and it sparked sharp criticism on Capitol Hill, particularly from Democrats. This month, those Democratic critics took control of the House and Senate. Even before that, a federal judge in Detroit declared Bush's policy unconstitutional, and that case is before a U.S. appeals court.

Rather than continue toward a likely confrontation with the new Congress that could thwart the program, Gonzales informed lawmakers Wednesday that Justice Department lawyers now would get court approval for their wiretaps. But while the change of course was seen by many as defeat for the administration, Bush and his attorney general treated it as a victory.

"Nothing has changed in the program, except the court has said we've analyzed it and it's a legitimate way to protect the country," the president said in an interview with Tribune Broadcasting.

During a Senate hearing, Gonzales corrected critics who said the announcement meant the administration had "terminated" its efforts to intercept calls going into and out of this country. He explained the administration had changed its legal rationale for the wiretapping to gain court approval, not the wiretapping itself.

But he refused to explain this new rationale, prompting anger and frustration among some Democrats.

"The attorney general was being purposely evasive," said Rep. Adam B. Schiff, a California Democrat, who has worked on bills to reform and update the wiretapping law. "They are following the unilateralist approach again."

This pattern has been repeated over the past five years. Bold claims by the administration of its authority in the war on terrorism have been followed by slow and grudging retreats. And in nearly every instance, a setback or about-face has not seriously hampered the administration.

Last June, the White House suffered what many saw as a historic rebuke when the Supreme Court struck down Bush's new rules for military tribunals. The justices said the proposed system did not meet the standards of fairness set by the Geneva Conventions or by the U.S. military code of justice.

Undaunted, the administration got the Republican-controlled Congress to write Bush's proposal into law. And, to prevent further interference from the courts, the new law said judges may not hear any pleas from "aliens" who are held by the U.S. military. By the year's end, the defeat in the Supreme Court had been converted into a victory for the White House.

Four years ago, the Supreme Court took up a challenge to the administration's policy of holding men who were captured in Afghanistan or Pakistan. In a split decision, the court said the government could hold these men as war prisoners, but it must give them some sort of hearing.

While civil libertarians called that ruling a defeat for the administration, White House lawyers saw it as a victory. As Berenson said, "the detention power is the most important issue."

Regardless of how the administration views it, Georgetown University Law Professor David Cole said he believes this week's announcement on the wiretapping program shows that the era of unchecked executive power has come to an end. With the Democrats in control of Congress and a legal challenge working its way through the courts, Bush could no longer claim he had an "inherent" power to ignore the wiretapping law, he said.

"If you look at it over five years, it's clear they have retreated on many fronts," said Cole, a long-time administration critic.

David G. Savage writes for the Los Angeles Times.

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