Measure defines war on terror

WASHINGTON — WASHINGTON -- A little- noticed provision in President Bush's proposal for the treatment of suspected terrorists would for the first time legally endorse the fight against terrorism as equivalent to war, lawmakers and national security lawyers say.

For five years, Washington lawmakers have clashed over whether the U.S. effort to combat terrorism should be considered an armed conflict. The White House has said repeatedly that the anti-terrorism effort should be considered a war.


Critics of the provision, such as former CIA counsel Suzanne Spaulding, said it could amount to a back-door endorsement of the disputed wartime presidential powers that Bush has asserted, potentially strengthening his hand in court battles over the National Security Agency's warrantless spying and permitting defense and intelligence agencies to launch operations in the United States.

"Does it allow the president to basically define the war on terrorism as broadly or as narrowly as he wants?" said Rep. Adam B. Schiff, a California Democrat. "The answer is yes."


Critics compare the provision to a resolution passed by Congress in September 2001 that authorized the use of force against the perpetrators of the Sept. 11 attacks. Bush has used the resolution as the legal basis for a wide range of initiatives, including warrantless domestic eavesdropping and the indefinite detention of U.S. citizens suspected of terrorism, without conferring with Congress or the courts.

Some in Congress have said that the 2001 resolution was never intended to give the president such broad authority and express concerns that the new provision on enemy combatants could be used in a similar way.

The "aggressive" interpretation of the 2001 resolution, which carried no explicit authorization of measures such as the NSA program, suggests that the Bush administration might interpret the new language even more broadly, Schiff said.

Congressional aides who have pored over the complex measure express concerns that lawmakers might approve it without fully considering its potential impact.

"It's not like there's a big neon light around it, saying, 'This is really important,' when it is," said a Democratic aide, who spoke on condition of anonymity because he is not authorized to be quoted by name. "This is the kind of thing that we're going to be talking much more about a month from now, or six months from now, saying, 'Oh, shoot.'"

The proposal now before Congress would recognize and define "unlawful enemy combatant" for the first time. That would give the fight against terrorism the legal status of an armed conflict, because it is impossible to have an illegal combatant without a conflict, lawmakers and security lawyers say.

Critics say the measure could open the way to a range of unpredictable and unintended consequences.

"There is a concern that [the Bush administration] will rely on that language about enemy combatants in wartime and use it to convince the courts that they should stay out of a whole range of policies that the president is pursuing," said Elisa Massimino, who heads the Washington office of Human Rights First.


Not all national security lawyers agree that the measure would legally recognize the fight against terrorism as a war.

"I don't necessarily see it as legitimizing the war on terrorism," said Scott Silliman, a former Air Force attorney. He said Bush's proposal is focused narrowly on military commissions and interrogation policy.

Bush allies see it as a logical extension of the position the president has taken all along.

"Why is that surprising? The president thinks it's a real war," said David Rivkin, a national security lawyer who served in the Reagan administration and that of Bush's father.

Glenn Sulmasy, a law professor at the U.S. Coast Guard Academy, said the measure provides an important tool with which to fight terrorism.

It "confirms that this is a war, and that we have to have some way to define who is in the fight against international terrorism," Sulmasy said.


Frances Fragos Townsend, the president's anti-terrorism adviser, declined in a brief interview to comment on the provision.

Bush's proposal, expected to be acted on by Congress today, defines "unlawful enemy combatant" as anyone "who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States" or its allies.

Coming up with ways to describe the fight against terrorism has been a tense topic, even within the Bush administration. Last year, officials briefly toyed with new phrasing to eliminate the term war.

In May 2005, Defense Secretary Donald H. Rumsfeld began talking about "a global struggle against violent extremism." In July 2005, Gen. Richard B. Myers, then chairman of the Joint Chiefs of Staff, said he objected to the use of the phrase "war on terrorism," because "if you call it a war, then you think of people in uniform as being the solution. And it's more than terrorism." He added, "Violent extremists [are] the real enemy here, and terror is the method they use."

But a month later, the Bush administration readopted the term "war on terror," which has remained the preferred phraseology.