By ERIC LICHTBLAU | WASHINGTON – Tucked deep into a recent proposal from the Bush administration is a provision that has received almost no public attention, yet in many ways captures one of President Bush’s defining legacies: an affirmation that the United States is still at war with Al Qaeda.
Seven years after the Sept. 11 attacks, Mr. Bush’s advisers assert that many Americans may have forgotten that. So they want Congress to say so and “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 language, part of a proposal for hearing legal appeals from detainees at the United States naval base at GuantÃ¡namo Bay, Cuba, goes beyond political symbolism. Echoing a measure that Congress passed just days after the Sept. 11 attacks, it carries significant legal and public policy implications for Mr. Bush, and potentially his successor, to claim the imprimatur of Congress to use the tools of war, including detention, interrogation and surveillance, against the enemy, legal and political analysts say.
Some lawmakers are concerned that the administration’s effort to declare anew a war footing is an 11th-hour maneuver to re-establish its broad interpretation of the president’s wartime powers, even in the face of challenges from the Supreme Court and Congress.
The proposal is also the latest step that the administration, in its waning months, has taken to make permanent important aspects of its “long war” against terrorism. From a new wiretapping law approved by Congress to a rewriting of intelligence procedures and F.B.I. investigative techniques, the administration is moving to institutionalize by law, regulation or order a wide variety of antiterrorism tactics.
“This seems like a final push by the administration before they go out the door,” said Suzanne Spaulding, a former lawyer for the Central Intelligence Agency and an expert on national security law. The cumulative effect of the actions, Ms. Spaulding said, is to “put the onus on the next administration” – particularly a Barack Obama administration – to justify undoing what Mr. Bush has done.
It is uncertain whether Congress will take the administration up on its request. 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.”
In the midst of an election season, the language represents a political challenge of sorts to the administration’s critics. While many Democrats say they are wary of Mr. Bush’s claims to presidential power, they may be even more nervous about casting a vote against a measure that affirms the country’s war against terrorism. They see the administration’s effort to force the issue as little more than a political ploy.
Mr. Bush “is trying to stir up again the politics of fear by reminding people of something they haven’t really forgotten: that we are engaged in serious armed conflict with Al Qaeda,” said Laurence H. Tribe, a constitutional scholar at Harvard and legal adviser to Mr. Obama. “But the question is, Where is that conflict to be waged, and by what means.”
With violence rising in Afghanistan and Osama bin Laden still at large, there are ample signs of the United States’ continued battles with terrorism. But Mr. Bush and his advisers say that seven years without an attack has lulled many Americans.
“As Sept. 11, 2001, recedes into the past, there are some people who have come to think of it as kind of a singular event and of there being nothing else out there,” Attorney General Michael B. Mukasey told House lawmakers in July. “In a way, we are the victims of our own success, our own success being that another attack has been prevented.”
Mr. Mukasey laid out the administration’s thinking in a July 21 speech to a conservative Washington policy institute in response to yet another rebuke on presidential powers by the Supreme Court: its ruling that prisoners at GuantÃ¡namo Bay , were entitled to habeas corpus rights to contest their detentions in court.
The administration wants Congress to set out a narrow framework for those prisoner appeals. But the administration’s six-point proposal goes further. It includes not only the broad proclamation of a continued “armed conflict with Al Qaeda,” but also the desire for Congress to “reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported Al Qaeda, the Taliban and associated organizations.”
That broad language hints at why Democrats, and some Republicans, worry about the consequences. It could, they say, provide the legal framework for Mr. Bush and his successor to assert once again the president’s broad interpretation of the commander in chief’s wartime powers, powers that Justice Department lawyers secretly used to justify the indefinite detention of terrorist suspects and the National Security Agency’s wiretapping of Americans without court orders.
The language recalls a resolution, known as the Authorization for Use of Military Force, passed by Congress on Sept. 14, 2001. It 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.
Senator Arlen Specter of Pennsylvania, the ranking Republican on the Judiciary Committee, said he wanted to make sure the Bush administration – or a future president – did not use that declaration as “another far-fetched interpretation” to evade the law, the way he believes Mr. Bush and aides like Alberto R. Gonzales, the former attorney general, did in using the wiretapping program to avoid the Foreign Intelligence Surveillance Act.
“I don’t want to face another situation where we had the Sept. 14 resolution and then Attorney General Gonzales claimed that that was authorization to violate FISA,” Mr. Specter said.
For Bush critics like Bruce Fein, a Justice Department official in the Reagan administration, the answer is simple: do not give the administration the wartime language it seeks.
“I do not believe that we are in a state of war whatsoever,” Mr. Fein said. “We have an odious opponent that the criminal justice system is able to identify and indict and convict. They’re not a goliath. Don’t treat them that way.”