Wall Street Journal (January 6, 2006).

Lawmakers Consider Extent Of President's Authority In Fight Against Terrorism.

By JOHN D. MCKINNON

WASHINGTON -- Going back to Abraham Lincoln's time, Americans usually acquiesce when a president stretches the power of the executive at a time of war. The Bush administration cites such precedents to explain some of the president's actions since the Sept. 11 attacks.

But unlike the Civil War and World War II, the "war on terror" may not have a clear end. And that is complicating debate over issues such as domestic wiretaps, rules for detaining alleged terrorists, and eavesdropping on phone calls between the U.S. and overseas.

The power of the president in wartime, a subject of discussion among academics and think-tank pundits, moves to center stage in Congress in coming weeks. Sen. Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, plans hearings into what exactly the National Security Agency is doing and whether acting without court warrants was necessary. The issue of presidential power in wartime also is likely to surface during Sen. Specter's committee's confirmation hearings of Judge Samuel Alito to the Supreme Court.

The unusual nature of the war on terror -- which won't be concluded by a surrender ceremony -- will figure in debates over amending the Iraq war resolution, renewing the Patriot Act passed after Sept. 11 to strengthen the government's antiterror powers, and altering the authority of the Foreign Intelligence Surveillance Act court that oversees wiretaps related to national security.

Defending the administration's domestic wiretaps, Attorney General Alberto Gonzales has noted that the president's "inherent authority" under the Constitution to intercept communications dates back more than a century. "Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, [and] during the world wars, as we intercepted telegrams in and out of the United States." Such intercepts allow the government "to know what the enemy is doing, to know what the enemy is about to do."

When Lincoln was criticized for suspending the right of habeas corpus, which protects Americans against imprisonment without charge, and for arresting and banishing a prominent Democratic Party critic to the Confederacy without consulting civilian courts or Congress, he said civilian courts were inadequate in time of "rebellion or invasion" and cited his duty to protect "the public safety."

After the Civil War, habeas corpus rights were restored, and Union agents stopped clambering up telegraph poles across the South to intercept Confederate cables. Similarly, the U.S. released Japanese-American internees after World War II.

But civil libertarians and small-government conservatives are asking how anyone will know when that point has arrived in what Vice President Dick Cheney has called a "mean, nasty, dangerous [and] dirty" kind of war. After all, Mr. Bush himself has said "our war on terror begins with al Qaeda, but it does not end there. It will not end until every terrorist group of global reach has been found, stopped and defeated."

Civil libertarians worry that a blurring of the lines between fighting a war abroad and combating domestic crime could erode legal barriers between the military and the police, who traditionally have been constrained by the courts and Constitution. They say once the barrier is breached, it will be difficult to rebuild -- especially since there is no end in sight to the war on terror.

John Schmidt, a Chicago lawyer who worked in the Clinton Justice Department, says that is a concern, particularly if Islamist extremists join forces with home-grown U.S. criminal groups. But for now, he says the White House is on solid legal ground. "There is still an important distinction to be drawn between foreign and domestic threats," he says. "But al Qaeda isn't a hard case."

Given memories of Sept. 11 and the possibility that terrorists will strike again, the public and Congress may end up backing Mr. Bush or changing federal laws to clarify that he has the authority to continue his actions.

Still, the prospect of an endless threat from an invisible enemy makes some of those civil libertarians and conservatives uneasy. "War used to mean something that's limited in time. But the president has said that this is a war that has no foreseeable end," says James X. Dempsey of the Center for Democracy and Technology, a nonpartisan group that focuses on civil liberties in cyberspace. He decries what he characterizes as "a civil-liberties crisis" in which the administration has asserted broad domestic intelligence-gathering powers on a nearly unending basis and views the U.S. itself as a potential battlefield.

Some experts see the Bush administration's redefinition of war as the latest in a series of expansions of presidential power since World War II. While Vietnam and Watergate led Congress to reclaim some authority, "the overall pattern is that as our country's international affairs have gotten more complicated and we've projected our national interests abroad, the president has become more and more powerful," said Taylor Reveley III, dean of the William & Mary School of Law in Williamsburg, Va.

Even some conservatives sympathetic to Mr. Bush's goals have expressed concern. The administration's view of the war on terrorism "does have a ring of '1984': permanent war for permanent peace," says William S. Lind, of the Free Congress Foundation, which describes itself as a politically and culturally conservative think tank, in a reference to George Orwell's novel about totalitarianism.

Mr. Lind was among those early to describe what he calls "fourth-generation warfare," in which the nation's foes aren't monoliths like the Soviet Union but hit-and-run terrorists. But today he says the administration has pushed that concept to justify seizing more money and power for the federal government -- for example, in creating the Department of Homeland Security. The federal government uses every crisis as "an opportunity to get more power, more empire, more money," Mr. Lind says.

Mr. Bush's press secretary, Scott McClellan, denies that there is a conflict between protecting Americans' safety and protecting their rights. "We are engaged in a different kind of war against a deadly and sophisticated enemy," he says, and adds that Mr. Bush "made a commitment to do everything within his lawful power to protect the American people and prevent attacks from happening. That means staying a step ahead of the enemy." But, he emphasizes, Mr. Bush "takes very seriously the importance of safeguarding people's civil liberties. We can do both."