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The Nation

The Power of the President

Bush says he has 'inherent authority' to act during wartime. A Senate hearing on domestic spying will debate that contention.

February 06, 2006|David G. Savage | Times Staff Writer

WASHINGTON — Ever since President Truman sent U.S. troops to fight in Korea in 1950, presidents have claimed broad wartime power to act without first seeking the approval of Congress. But they did so with the silence or implicit consent of lawmakers.

Senators will convene today to confront the fact that in combating terrorism, President Bush has gone a step further.

In the controversies over the use of torture, the detention of "enemy combatants" and wiretapping in the United States, he and his lawyers have maintained the commander in chief has an "inherent authority" to act regardless of the law.

That issue is the heart of the dispute between the White House and Congress over Bush's order authorizing the National Security Agency to listen in on international phone calls coming from people who are suspected of being terrorists or of having ties to terrorists.

"If there are people inside our country who are talking with Al Qaeda, we want to know about it," Bush said Tuesday in his State of the Union address.

Although virtually no one quarrels with the president's goal of trying to detect terrorists who might be hiding in this country, many legal experts -- and even some Republicans in Congress -- doubt he has the authority to order wiretapping in the United States without a judicial warrant, as the law requires.

The Senate Judiciary Committee hearings will weigh the administration's legal defense of the National Security Agency program. But the White House claims of expansive powers go beyond wiretaps.

After the Sept. 11 terrorist attacks, Bush's lawyers set out a broad theory of presidential power that gave the commander in chief the right to override the law. Often the theory was spelled out in confidential legal memos prepared for the White House rather than in public pronouncements.

In 1994, Congress outlawed the use of torture by U.S. agents and made it a crime to "inflict severe physical or mental pain" on people held in U.S. custody. But in a Justice Department memo written for the White House in 2002, Bush's lawyers said the law did not prevent the president from ordering the use of severe and painful measures against captured terrorists.

"In order to respect the president's inherent authority to manage a military campaign against Al Qaeda and its allies, [the anti-torture law] must be construed as not applying to interrogations undertaken pursuant to his commander in chief authority," Bush's lawyers wrote. "Congress may no more regulate the president's authority to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield."

However, the Constitution gives Congress powers to set rules for prisoners.

Specifically, Article I says, "Congress shall have the power ... to make rules for the ... regulation of the land and naval forces," as well as "rules concerning captures on land and water." Article II says the president "shall take care that the laws be faithfully executed."

The Supreme Court has rejected the notion that the president alone controls what happens during wartime.

When Democrat Truman seized the steel mills to keep them running during the Korean War, the high court -- with nine Democratic appointees -- ruled in 1952 that he had overstepped his power. Its opinion stressed that Congress, not the president, made the rules.

"The founders of this nation entrusted the lawmaking power to the Congress alone in both good times and bad times," Justice Hugo Black wrote. "The president's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

In 1971, Congress tried to make sure that no future president would follow the lead of Franklin D. Roosevelt, who during World War II ordered the military to imprison tens of thousands of Japanese Americans.

"No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress," the 1971 law said.

Nonetheless, Bush's lawyers maintained the president could order the military to arrest and hold Americans he deemed to be "enemy combatants." In 2002, the military took custody of Jose Padilla, a New York-born Muslim who was arrested at Chicago's O'Hare International Airport after a flight from Pakistan. Administration officials said he was plotting with Al Qaeda to set off a radioactive bomb.

But rather than charge him with treason or another crime, Bush's lawyers said Padilla could be held indefinitely without charges, without a lawyer and without a hearing to consider his guilt.

"The capture and detention of enemy combatants during wartime falls within the president's core constitutional powers as commander in chief," Bush's lawyers told a U.S. appeals court. "There is no basis to second-guess the president's conclusion that Padilla is an enemy combatant."

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