A single, fiercely debated legal principle lies behind nearly every major initiative in the Bush administration's war on terror, scholars say: the sweeping assertion of the powers of the presidency.
From the government's detention of Americans as "enemy combatants" to the just-disclosed eavesdropping in the United States without court warrants, the administration has relied on an unusually expansive interpretation of the president's authority. That stance has given the administration leeway for decisive action, but it has come under severe criticism from some scholars and the courts.
With the strong support of Vice President Dick Cheney, legal theorists in the White House and Justice Department have argued that previous presidents unjustifiably gave up some of the legitimate power of their office. The attacks of Sept. 11, 2001, made it especially critical that the full power of the executive be restored and exercised, they said.
"They" appear to consist primarily of Boalt Hall professor John C. Yoo.
Mr. Yoo, who is believed to have helped write a legal justification for the National Security Agency's secret domestic eavesdropping, first laid out the basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute passed by Congress "can place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response."That became the underlying justification for numerous actions apart from the eavesdropping program, disclosed by The New York Times on Thursday [12/15/05] night. Those include the order to try accused terrorists before military tribunals; the detention of so-called enemy combatants at Guantánamo Bay, Cuba, and in secret overseas jails operated by the Central Intelligence Agency; the holding of two Americans, Jose Padilla and Yaser Esam Hamdi, as enemy combatants; and the use of severe interrogation techniques, including some banned by international agreements, on Al Qaeda figures.
Mr. Yoo, now a law professor at the University of California, Berkeley, declined to comment for this article. But Bradford A. Berenson, who served as associate counsel to President Bush from 2001 to 2003, explained the logic behind the assertion of executive power.
"After 9/11 the president felt it was incumbent on him to use every ounce of authority available to him to protect the American people," Mr. Berenson said. . . .
[B]ut some legal experts outside the administration, including some who served previously in the intelligence agencies, said the administration had pushed the presidential-powers argument beyond what was legally justified or prudent. They say the N.S.A. domestic eavesdropping illustrates the flaws in Mr. Bush's assertion of his powers.
"Obviously we have to do things differently because of the terrorist threat," said Elizabeth Rindskopf Parker, former general counsel of both N.S.A. and the Central Intelligence Agency, who served under both Republican and Democratic administrations. "But to do it without the participation of the Congress and the courts is unwise in the extreme."
"Unwise in the extreme" indeed. Scary-ass details here from the New York Times. You can support the ACLU here.