August 30, 2008
by John Byrne
As the nation focuses on Sen. John McCain’s choice of running mate, President
Bush has quietly moved to expand the reach of presidential power by ensuring
that America remains in a state of permanent war.
Buried in a recent proposal by the Administration is a sentence that has received
scant attention — and was buried itself in the very newspaper that exposed
it Saturday. It is an affirmation that the United States remains at war with
al Qaeda, the Taliban and "associated organizations."
Part of a proposal for Guantánamo Bay legal detainees, the provision before
Congress seeks to “acknowledge again and explicitly that this nation remains
engaged in an armed conflict with Al Qaeda, the Taliban, and associated organizations,
who have already proclaimed themselves at war with us and who are dedicated
to the slaughter of Americans.”
The New York Times‘ page 8 placement of the article in its Saturday
edition seems to downplay its importance. Such a re-affirmation of war carries
broad legal implications that could imperil Americans’ civil liberties and the
rights of foreign nationals for decades to come.
It was under the guise of war that President Bush claimed a legal mandate for
his warrantless wiretapping program, giving the National Security Agency power
to intercept calls Americans made abroad. More of this program has emerged in
recent years, and it includes the surveillance of Americans’ information and
"War powers" have also given President Bush cover to hold Americans
without habeas corpus — detainment without explanation or charge. Jose Padilla,
a Chicago resident arrested in 2002, was held without trial for five years before
being convicted of conspiring to kill individuals abroad and provide support
But his arrest was made with proclamations that Padilla had plans to build
a "dirty bomb." He was never convicted of this charge. Padilla’s legal
team also claimed that during his time in military custody — the four years
he was held without charge — he was tortured with sensory deprivation, sleep
deprivation, forced stress positions and injected with drugs.
Times reporter Eric Lichtblau notes that the measure is the latest
step that the Administration has taken to "make permanent" key aspects
of its "long war" against terrorism. Congress recently passed a much-maligned
bill giving telecommunications companies retroactive immunity for their participation
in what constitutional experts see as an illegal or borderline-illegal surveillance
program, and is considering efforts to give the FBI more power in their investigative
"It is uncertain whether Congress will take the administration up on its
request," Lichtblau writes. "Some Republicans have already embraced
the idea, with Representative Lamar Smith of Texas, the ranking Republican on
the Judiciary Committee, introducing a measure almost identical to the administration’s
proposal. ‘Since 9/11,’ Mr. Smith said, ‘we have been at war with an unconventional
enemy whose primary goal is to kill innocent Americans.’"
If enough Republicans come aboard, Democrats may struggle to defeat the provision.
Despite holding majorities in the House and Senate, they have failed to beat
back some of President Bush’s purported "security" measures, such
as the telecom immunity bill.
Bush’s open-ended permanent war language worries his critics. They say it could
provide indefinite, if hazy, legal justification for any number of activities
— including detention of terrorists suspects at bases like Guantánamo Bay (where
for years the Administration would not even release the names of those being
held), and the NSA’s warantless wiretapping program.
Lichtblau co-wrote the Times article revealing the Administration’s
eavesdropping program along with fellow reporter James Risen.
He notes that Bush’s language "recalls a resolution, known as the Authorization
for Use of Military Force, passed by Congress on Sept. 14, 2001… [which] authorized
the president to ‘use all necessary and appropriate force’ against those responsible
for the Sept. 11 attacks to prevent future strikes. That authorization, still
in effect, was initially viewed by many members of Congress who voted for it
as the go-ahead for the administration to invade Afghanistan and overthrow the
Taliban, which had given sanctuary to Mr. bin Laden."
"But the military authorization became the secret legal basis for some
of the administration’s most controversial legal tactics, including the
wiretapping program, and that still gnaws at some members of Congress,"