AFTER SEPT. 11, 2001, the legal tools at President Bush's disposal were
out of date and did not address the new realities of this different kind of
war. He had to confront some difficult choices in the balance between civil
liberties and the need to root out terrorist cells at home and abroad. The
criticism those choices have sparked has not always been fair. But too often
Mr. Bush has overstepped, both in his policy changes and in the way he has
pursued them.
Except for winning passage of the USA Patriot Act, Mr. Bush has not
generally worked through Congress but has asserted broad executive war powers
to take controversial steps on his own. He has not backed down from these
positions until forced to by the courts -- thereby, ironically, creating
landmark precedents that could hamper the ability of future presidents to take
aggressive action to ensure security in emergencies. Both the cause of liberty
and the cause of a strong presidency have been harmed.
The Bush administration did not have to hold U.S. citizens as enemy
combatants with no semblance of due process and no access to counsel. Nor did
it have to hold hundreds of foreign enemy fighters at Guantanamo Bay, Cuba,
without creating any formal means of separating innocents from dangerous
terrorists. Nor was it wise to set up military tribunals to try war crimes at
the base without seeking congressional blessing for rules that are designed to
relax certain fair-trial rights. In all of these situations, the
administration had powerful and legitimate concerns. Had it been willing to go
to Congress, it could have gotten what it needed -- probably with some
requirements of fairness and oversight. But Mr. Bush has shown himself so
allergic to any form of accountability in this area, so insistent on the
executive's power to write its own rules and so committed to secrecy that he
created a kind of alternative justice system, one that injured America in the
world's eyes and courted the judicial intervention it finally received.
While the Supreme Court has now insisted on reasonable rules to govern
detentions in the war on terrorism, Mr. Bush's instincts in this area remain
troubling. In a second term, he would probably push not merely for
reauthorization of the Patriot Act -- which is reasonable, in the main -- but
for aggressive extensions of it.
Gleaning Sen. John F. Kerry's likely approach to civil liberties is
somewhat harder, because he has tried to appeal to all sides in the discussion
even as he has kept his options open. While he voted for the Patriot Act, for
example, he says he has problems with specific sections. Still, his
inclination would appear to be more protective of civil liberties than Mr.
Bush. He would support the president's power to detain citizens as enemy
combatants but not without reasonable process, his campaign says. Sen. John
Edwards has said a Democratic administration would redo plans for military
tribunals at Guantanamo based on the model of full courts-martial -- an idea
that would be attractive if certain practical problems can be overcome. Mr.
Kerry would seem likely to apply a more skeptical eye toward increased
domestic surveillance and deportation powers. And he would be far more likely
than Mr. Bush to seek congressional sanction for the aggressive steps any
president would have to take as the war on terrorism proceeded. Any reasonable
president will need to make full use of his powers, but that need not mean
ignoring the costs to freedom.
This is one in a series of editorials comparing the records and
programs of the presidential candidates on important issues. Others can be
found at www.washingtonpost.com/opinion.
