Analysis

Bush Retreats on Use of Executive Power

President Bush has closed secret CIA prisons and negotiated congressional approval for tribunals in the past six months.
President Bush has closed secret CIA prisons and negotiated congressional approval for tribunals in the past six months. (By Ron Edmonds -- Associated Press)

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By Peter Baker
Washington Post Staff Writer
Thursday, January 18, 2007

President Bush's decision to submit his warrantless-surveillance program to the jurisdiction of a special intelligence court represents the latest step back from the expansive interpretation of executive power he has asserted since the Sept. 11, 2001, attacks.

Under pressure from Congress and the courts, Bush in the past six months has closed secret overseas CIA prisons, transferred previously unidentified detainees to regular military custody, negotiated congressional approval for tribunals to try foreign terrorism suspects and accepted at least some regulation of how harshly such prisoners could be interrogated.

Bush has hardly surrendered his effort to broadly define the commander in chief's authority to wage war in the modern era. Just last weekend, he and Vice President Cheney told Congress that it has no business trying to stop the president from sending 21,500 more troops to Iraq. But in other ways, Bush has engaged in a series of strategic fallbacks intended to preserve what authority he can while fending off escalating political and constitutional challenges.

"You can only be at odds with two-thirds of the people on a limited number of issues," said Jack Quinn, who was White House counsel under President Bill Clinton. "He has his back to the wall. He really has depleted his political capital and he simply can't afford to be at odds with most of us on a number of issues. He is conserving what limited political capital he has to see through this final effort on which he's embarked in Iraq."

Bush has backed off other confrontations with the new Democratic Congress as well, even as they square off over Iraq. He gave up efforts to confirm John R. Bolton to be permanent ambassador to the United Nations, offered qualified support for a Democratic move to raise the minimum wage, endorsed a Democratic goal of balancing the budget by 2012 and withdrew the nominations of four would-be judges bitterly opposed by Democrats.

Just this week, Bush accepted the advice of Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) to withdraw a fifth nominee, Norman Randy Smith of Idaho, and nominate him for another seat to defuse opposition of California's Democratic senators who complained that they were losing a seat on the U.S. Court of Appeals for the 9th Circuit.

The latest move, though, represents a stark shift for a president who made the National Security Agency surveillance program one of his central battles last year, a fight that inflamed the midterm congressional campaigns over questions of security vs. civil liberties.

Bush vigorously attacked Democrats on the campaign trail for opposing his program, accusing them of not wanting to eavesdrop on terrorists' telephone calls. Democrats bristled, saying their main concern was the unchecked power Bush was claiming to override traditional constitutional liberties. Some prominent Republicans shared the concern, most notably Sen. Arlen Specter (Pa.), who was unable to push a compromise through the Republican Congress.

Now Bush has deferred to critics in both parties by agreeing to allow another branch of government to oversee his administration's actions. Bush officials argued yesterday that they will still be able to conduct surveillance effectively because of new rules adopted by the Foreign Intelligence Surveillance Court and maintained that they did nothing wrong before. But they implicitly abandoned their argument that the president's inherent power under Article II of the Constitution was all the authority he needed.

"This is a prudent thing for the president to do," said Charles J. Cooper, a Justice Department official under President Ronald Reagan. "To the extent there were problems from the outset, it probably would have been prudent to do it earlier."

Still, Cooper said he is concerned that recent court decisions and congressional actions have improperly tried to tie Bush's hands in wartime. "The president still has the authority that he needs, but I do think his authority has been restrained in ways I don't believe the court was correct on," Cooper said.

Other conservatives are angry that Bush seemed willing to compromise on a point of principle. "For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's constitutional authority, to then turn around and surrender presidential authority this way is disgraceful," Mark Levin wrote on National Review's Web site. "The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements."

Bush's decision seems likely to undercut Democratic opposition as leading figures such as Leahy welcomed the move. It may also be a calculated gamble by the administration to head off deeper inquiry into its counterterrorism efforts through congressional hearings and lawsuits. Attorney General Alberto R. Gonzales is scheduled to make his first appearance today before the Democratic-led Judiciary Committee and the administration will face oral arguments Jan. 31 in the U.S. Court of Appeals for the 6th Circuit in a case challenging the legality of the NSA program.

But even if that case is dismissed, as some lawyers anticipate, others seeking damages for past actions could go forward in San Francisco. And some congressional Democrats vowed to continue pursuing the administration's actions over the past five years. "While I welcome the decision to stop conducting surveillance without judicial approval," said Sen. Russell Feingold (D-Wis.), "the president now needs to respond fully to legitimate congressional questions about the complete history of this now-terminated illegal program."


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