Court's Ruling Is Likely to Force Negotiations Over Presidential Power

June 30, 2006
News Analysis

By DAVID E. SANGER and SCOTT SHANE
WASHINGTON, June 29 — The Supreme Court's Guantánamo ruling on Thursday was the most significant setback yet for the Bush administration's contention that the Sept. 11 attacks and their aftermath have justified one of the broadest expansions of presidential power in American history.

President Bush and Vice President Dick Cheney spent much of their first term bypassing Congress in the service of what they labeled a "different kind of war." Now they will almost certainly plunge into negotiations they previously spurned, over the extent of the president's powers, this time in the midst of a midterm election in which Mr. Bush's wartime strategies and their consequences have emerged as a potent issue.

The ruling bolsters those in Congress who for months have been trying to force the White House into a retreat from its claims that Mr. Bush not only has the unilateral authority as commander in chief to determine how suspected terrorists are tried, but also to set the rules for domestic wiretapping, for interrogating prisoners and for pursuing a global fight against terror that many suspect could stretch for as long as the cold war did.

What the court's 5-to-3 decision declared, in essence, was that Mr. Bush and Mr. Cheney had overreached and must now either use the established rules of courts-martial or go back to Congress — this time with vastly diminished leverage — to win approval for the military commissions that Mr. Bush argues are the best way to keep the nation safe.

For Mr. Bush, this is not the first such setback. The court ruled two years ago that the giant prison at Guantánamo Bay, Cuba, was not beyond the reach of American courts and that prisoners there had some minimal rights.

Then, last year, came the overwhelming 90-to-9 vote in the Senate, over Mr. Cheney's strong objections, to ban "cruel, inhumane and degrading" treatment of prisoners. That forced Mr. Bush, grudgingly, to reach an accord with Senator John McCain, Republican of Arizona, on principles for interrogation, which are still being turned into rules.

As seen by Mr. Bush's critics, the court has finally reined in an executive who used the Sept. 11 attacks as a justification — or an excuse — to tilt the balance of power decidedly toward the White House.

"This is a great triumph for the rule of law and the separation of powers," said Bruce Ackerman, a professor of law and political science at Yale. "The administration will have to go back to Congress and talk in a much more discriminating fashion about what we need to do."

Some allies of Mr. Bush reacted bitterly on Thursday, asserting that it was the court, rather than Mr. Bush, that had over-reacted.

"Nothing about the administration's solution was radical or even particularly aggressive," said Bradford A. Berenson, who served from 2001 to 2003 as associate White House counsel. "What is truly radical is the Supreme Court's willingness to bend to world opinion and undermine some of the most important foundations of American national security law in the middle of a war."

At least rhetorically, the administration is giving no ground about the reach of the president's powers. Just 10 days ago, speaking here in Washington, Mr. Cheney cited the responses to Watergate and the Vietnam War as examples of where he thought Congress had "begun to encroach up on the power and responsibilities of the president," and said he had come to the White House with the view that "it was important to go back and try to restore that balance."

Since taking office, Mr. Bush and Mr. Cheney have largely tried to do so by fiat, sometimes with public declarations, sometimes with highly classified directives governing how suspects could be plucked from the battlefield or, in the case decided on Thursday, how they would be tried. The president's tone on Thursday, during a news conference with Prime Minister Junichiro Koizumi of Japan, suggested that he recognized he might now have to give ground.

Mr. Bush said he would be taking "the findings" of the Supreme Court "very seriously."

"One thing I'm not going to do, though, is I'm not going to jeopardize the safety of the American people," he said. But then he backtracked a bit, saying that he would "work with Congress" to give legal foundation to the system he had already put in place.

To some degree, the court may have helped Mr. Bush out of a political predicament. He has repeatedly said he would like to close the detention center at Guantánamo, a recognition that the indefinite imprisonment of suspects without trial and the accusations that they have been mistreated were seriously undercutting American credibility abroad. But he set no schedule and said he was waiting for the court to rule.

"The court really rescued the administration by taking it out of this quagmire it's been in," said Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school.

Now Congress, with the court's encouragement, may help the president find a way forward. For Senator Lindsey Graham, Republican of South Carolina, who said a legislative proposal on military commissions he sent to the White House 18 months ago "went nowhere," the ruling was a welcome restoration of the balance of power.

"The Supreme Court has set the rules of the road," Mr. Graham, a former military lawyer, said, "and the Congress and the president can drive to the destination together."

Supporters of the president emphasized that the question of how to balance suspects' right against the need for intelligence on imminent attacks was always a daunting challenge, and that the ruling did not change that.

In fact, said Jack Goldsmith, who headed the Justice Department's Office of Legal Counsel in 2003 and 2004, the fact that no second attack has occurred on American soil is an achievement of the administration that is now complicating its political situation.

"The longer the president and the administration successfully prevent another attack," Mr. Goldsmith said, "the more people think the threat has abated and the more they demand that the administration adhere to traditional civil liberties protections."

In today's less panicky national mood, tough measures that few dared question as American forces first moved into Afghanistan, then Iraq, are now the subject of nightly debate on cable television and of a small flotilla of court challenges.

But history suggests that this pendulum swing was inevitable. It took years, but history came to condemn the internment of Japanese-Americans during World War II, and to question Lincoln's suspension of habeas corpus during the Civil War.

Sooner or later, that same reversal was bound to happen to Mr. Bush and Mr. Cheney. The question is how far it will swing back while they are still in office and while what Mr. Bush calls "the long war" continues around the globe.