Buried in a recent proposal by the Administration is a sentence that
has received scant attention — and was buried itself in the very
newspaper that exposed it Saturday. It is an affirmation that the
United States remains at war with al Qaeda, the Taliban and “associated
organizations.”

Part of a proposal for Guantanamo Bay legal detainees, the provision
before Congress seeks to “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 New York Times‘ page 8 placement of the article
in its Saturday edition seems to downplay its importance. Such a
re-affirmation of war carries broad legal implications that could
imperil Americans’ civil liberties and the rights of foreign nationals
for decades to come.

It was under the guise of war that President Bush claimed a legal
mandate for his warrantless wiretapping program, giving the National
Security Agency power to intercept calls Americans made abroad. More of
this program has emerged in recent years, and it includes the
surveillance of Americans’ information and exchanges online.

“War powers” have also given President Bush cover to hold Americans
without habeas corpus — detainment without explanation or charge. Jose Padilla,
a Chicago resident arrested in 2002, was held without trial for five
years before being convicted of conspiring to kill individuals abroad
and provide support for terrorism.

But his arrest was made with proclamations that Padilla had plans to
build a “dirty bomb.” He was never convicted of this charge. Padilla’s
legal team also claimed that during his time in military custody — the
four years he was held without charge — he was tortured with sensory
deprivation, sleep deprivation, forced stress positions and injected
with drugs.

Times reporter Eric Lichtblau notes that the measure is the
latest step that the Administration has taken to “make permanent” key
aspects of its “long war” against terrorism. Congress recently passed a
much-maligned bill giving telecommunications companies retroactive
immunity for their participation in what constitutional experts see as
an illegal or borderline-illegal surveillance program, and is
considering efforts to give the FBI more power in their investigative
techniques.

“It is uncertain whether Congress will take the administration up on
its request,” Lichtblau writes. “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.’”

If enough Republicans come aboard, Democrats may struggle to defeat the
provision. Despite holding majorities in the House and Senate, they
have failed to beat back some of President Bush’s purported “security”
measures, such as the telecom immunity bill.

Bush’s open-ended permanent war language worries his critics. They say
it could provide indefinite, if hazy, legal justification for any
number of activities — including detention of terrorists suspects at
bases like Guantanamo Bay (where for years the Administration would not
even release the names of those being held), and the NSA’s warantless
wiretapping program.

Lichtblau co-wrote the Times article revealing the Administration’s eavesdropping program along with fellow reporter James Risen.

He notes that Bush’s language “recalls a resolution, known as the
Authorization for Use of Military Force, passed by Congress on Sept.
14, 2001… [which] 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.”