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McCain Crew Seeks to Shore Up Bush's Wartime Powers

August 31, 2008 - by Donny Shaw

There is a push on in Congress to reaffirm and make permanent the war powers that President Bush secretly used as legal justification for many of his most infamous policies – warrantless wiretapping, torture and the suspension of Habeas Corpus. The language, which was originally proposed by the White House, is included in a bill introduced recently by Sen. Lindsey Graham (R-SC), one of John McCain’s closets advisers and national co-chairman of his 2008 presidential campaign, and Sen. Joe Lieberman (I-CT), the guy McCain wanted most as his running mate.

Buried on page 8 in the Saturday New York Times was this story:

>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 Guantánamo 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 Times article notes that Rep. Lamar Smith (R-TX), the ranking member on the Judiciary Committee, recently introduced the administration’s proposed language into Congress through the Enemy Combatant Detention Review Act of 2008.

But it doesn’t mention that two of McCain’s key allies, Senators Lindsey Graham and Joe Lieberman, along with Kit Bond (R-MO), are sponsoring the same exact bill in the Senate. The Senate version of the bill isn’t available yet on OpenCongress (I’ll update as soon as it is), but, for now, you can view it at by clicking here.

In its “Statement of Authority” section, the bill states that “Congress reaffirms that the United States is in an armed conflict with al Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad.” This reaffirmation recalls the Authorization for Use of Military Force resolution that Congress passed in September 2001, which authorized President Bush “to use all necessary and appropriate force against” the terrorists responsible for 9/11. This authorization, which Congress assumed would apply only to the use of military force against the Taliban, was also used by the Bush administration to justify such controversial and possibly unconstitutional practices as listening in on domestic communications without obtaining a FISA warrant, torturing terrorist suspects and detaining suspects indefinitely without filing charges, holding hearings, or entitling them to a legal consultant.

The language is embedded in a somewhat less controversial bill seeking to clarify procedures relating to how Guantanamo detainees’ habeas petitions are dealt with by the courts. If Congress passes this bill, it will pass the responsibility of Bush’s war policies onto the next president, giving an Obama administration an uphill battle in arguing to undo the policies, and a McCain administration a strong position from which to defend them.

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