June 16, 2007	Saturday	Jamadi-ul-Awwal 30, 1428

WASHINGTON: What President George W. Bush calls his “global war on terror” is drawing heavy fire on the home front, both from Congress and the courts.

The president’s assertion of extraordinary powers – from the limitless holding of “enemy combatants” to the warrantless surveillance of Americans – is under challenge from all directions.

A pair of recent rulings, one from a military court and the other from a federal appeals panel, delivered fresh legal broadsides against Bush’s tactics for dealing with terror suspects.

The days for such anti-terrorism strategies may be numbered.

“I think that the next president, whether Democratic or Republican, is going to have to reverse course on some of these decisions,” said Paul C. Light, professor of public policy at New York University. “You cannot assert yourself into a stronger presidency. That requires legislation, and then judicial review.”

Democratic presidential contenders have been uniformly critical of the detainee policies championed by the president and Vice-President Dick Cheney. Republicans have been generally more supportive, except for Sen. John McCain, a former prisoner of war in Vietnam.

Multiple efforts are under way in the Democratic-run Congress to put restrictions on Bush’s policies on detainees and terror suspects and to gain access to Justice Department documents related to domestic wiretapping. Bills that would give new rights to detainees under military detention at Guantanamo Bay, Cuba, recently have been approved by the Senate Armed Services

and Judiciary Committees and are headed toward action in the full Senate.

Bush’s pattern has been to push right up to the edge, and then back down if necessary – as when he agreed last January to modify the National Security Agency’s no-warrant wiretapping programme to put it under the supervision of a special court. That followed outcries from Democrats, civil-liberties groups and conservatives.

The most recent challenge came this week from a three-judge panel of the 4th US Circuit Court of Appeals. In a 2-1 decision, the panel said Bush may not declare civilians in this country to be “enemy combatants” and have the military lock them up indefinitely.

The court found Bush overstepped his authority when he declared that Ali al-Marri, a Qatar native living in the state of Illinois on a student visa, was an “enemy combatant” and placed him in military custody. Al-Marri has been detained since his December 2001 arrest, the past four years in solitary confinement in the Navy brig in Charleston, S.C.

The government contends al-Marri had trained in an Al Qaeda camp in Afghanistan in the 1990s and was a “sleeper agent” and a national security threat.

But the appeals panel said: “Put simply, the Constitution does not allow the president to order the military to seize civilians residing within the United States and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants’.”

The administration is appealing the ruling to the full 4th Circuit court, long considered one of the most conservative in the country.

Last week, military judges ruled that the Defence Department could not prosecute two Guantanamo detainees because the government had failed to identify them as “unlawful” enemy combatants, as required by Congress, which dealt a blow to efforts to begin prosecuting dozens of detainees. The distinction between classifications of enemy combatants is important because if they were “lawful,” they would be entitled to prisoner-of-war status under the Geneva Conventions. Scott Silliman, a Duke University law professor who was an Air Force lawyer for 25 years, said there’s a strong likelihood that the

4th Circuit ruling on al-Marri may become the vehicle for a major Supreme Court case on how war-on-terror suspects are tried.

Silliman said the case presents constitutional issues that the court did not get into in previous rulings on Guantanamo detainees. And at some point, Silliman said, the high court may have to confront a central issue – is the war on terror a real war, as envisioned by the Constitution, or more like the war on poverty, say, or the war on drugs of previous US presidents. “I think they will have to make that determination in some case that comes before them,” Silliman said.

The Supreme Court ruled in June 2004 that foreigners deemed “enemy combatants” and held at Guantanamo are entitled to contest their detentions in US courts. In June 2006, the justices threw out Bush’s military tribunal system for Guantanamo detainees, saying it exceeded his authority and violated international treaties.

Congress, then led by Republicans, pushed through legislation authorising war-crime trials for the detainees and denying them access to civilian courts. That law is now under multiple challenges.

Presidential press secretary Tony Snow says the administration will fight the recent adverse rulings. He also noted the record is mixed, with the administration winning some cases. For instance, in April, the Supreme Court rejected an appeal from Guantanamo detainees who sought to challenge their five-year-long confinements in court.

“We think that court precedent supports the position that we have had when it comes to detainees,” Snow said. Furthermore, he suggested holding “enemy combatants” during times of war “has been a long-standing practice within the United States, over decades”.

But how does one gauge when hostilities have ended in a war on terror? “I don’t know,” Snow said.Another cloud over the terror-war programme: the revelation in congressional testimony that Attorney-General Alberto Gonzales – when he was Bush’s White House counsel – pressured then Attorney-General John Ashcroft to certify the legality of Bush’s eavesdropping programme while Ashcroft was in hospital intensive care.

Former Deputy Attorney-General James Comey said Gonzales and White House chief of staff Andy Card went to Ashcroft’s hospital room but failed to get him to support the policy.

Within a few days, the president amended his executive order.

With even conservatives in Congress and within the judiciary expressing unease about some Bush-Cheney interpretations of presidential power, support for current anti-terrorism detention policies seems to be ebbing.

“If there is another catastrophic attack on the American homeland, then all bets are off. But absent that, I think you’re going to see a return to normalcy with regard to constitutional restraints on executive power,” said Stephen J. Cimbala, a university political science professor who studies terrorism policy.—AP