By Dan Froomkin
Special to washingtonpost.com
Tuesday, February 12, 2008; 12:52 PM

President Bush continues to dispute all the predictions that his presidency will go down in history as a miserable failure.

Or, as he put it in an interview with Chris Wallace of Fox News over the weekend: "It's very hard to write the future history of America before the current history hasn't been fully written."

But with the economy tanking, the war in Iraq dragging on, our nation's moral standing in ashes and voters hungering for a new direction, how exactly does Bush intend to go out a winner?

One possible answer: Try to change the subject back to 9/11.

Steven Lee Myers writes in the New York Times that the administration's announcement yesterday of capital murder charges against half a dozen men allegedly linked to the Sept. 11, 2001, terrorist attacks will bring the election-year focus back on Bush's favorite issues.

"The White House said on Monday that Mr. Bush had no role in the decision to file charges now against the six detainees, leaving the strategy for prosecuting them to the military," Myers writes.

"Still, the cases soon to be put before military tribunals -- including that against Khalid Shaikh Mohammed, who has described himself as the mastermind of the attacks -- represent a major part of 'the unfinished business' that Mr. Bush and his aides talk about when they vow 'to sprint to the finish,' as one aide did again on Monday.

"Mr. Bush never sounds surer of himself than when the subject is Sept. 11, even when his critics argue that he has squandered the country's moral authority, violated American and international law, and led the United States into the foolhardy distraction of Iraq. . . .

"The 9/11 candidate, Rudolph W. Giuliani of New York, may have dropped his bid for the White House. But the 9/11 presidency is far from over."

Myers writes that on the question of military tribunals, warrantless wiretapping and the war in Iraq, "the White House seems eager to lock in as many of the president's policies as possible before he leaves office in 11 months. And as it looks ahead to the November elections, the White House seems to have concluded that each is politically sustainable and even favorable for a Republican candidate and Mr. Bush's own legacy."

Of course, this latest move could backfire.

Andrew O. Selsky writes for the Associated Press that "questions of due process could overshadow the [Guantanamo] proceedings, according to Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch.

"'By trying these men before flawed military commissions in Guantanamo Bay, the United States makes the system the center of attention rather the defendants and their alleged crimes.'"

And then there's the controversy about using evidence elicited through torture.

Josh White, Dan Eggen and Joby Warrick write in The Washington Post that the charges are "based partly on information the men disclosed to FBI and military questioners without the use of coercive interrogation tactics.

"The admissions made by the men -- who were given food whenever they were hungry as well as Starbucks coffee at the U.S. prison at Guantanamo Bay, Cuba -- played a key role in the government's decision to proceed with the prosecutions, military and law enforcement officials said.

"FBI and military interrogators who began work with the suspects in late 2006 called themselves the 'Clean Team' and set as their goal the collection of virtually the same information the CIA had obtained from five of the six through duress at secret prisons."

Nevertheless, "Vincent Warren, executive director of the Center for Constitutional Rights, which represents one of the detainees charged and many more at Guantanamo Bay, said the cases are 'essentially show trials, as President Bush is leaving his tarnished legacy to the next president.'"

The White House made it clear that it wanted a 9/11 trial before the end of President Bush's term. But Carol Rosenberg and Nancy A. Youssef write for McClatchy Newspapers: "Knowledgeable legal experts, however, said it's unlikely that they can be tried speedily, meaning the cases probably won't be heard before the Bush administration leaves office next January."

And yet, that actually may be part of the plan, writes Will Bunch in his Philadelphia Daily News blog: "[I]t is unlikely, with appeals and the like, that any conviction and death penalty could be carried out as quickly as January. That lays the problem on the lap of the next president -- regardless of whether it's McCain, Clinton or Obama -- who would have to either affirm the military tribunals, or else declare on the first day of their presidency that one of their first officials acts will be to overturn a death sentence for a 9/11 mastermind.

"That's a classic Rovian political trap if I ever saw one. And it's more proof that undoing the nightmare eight years of Bush and Cheney is going to be a lot more work than simply placing a right hand on the Bible."

Bush spoke at some length about torture in his Fox News interview. All in all, it sounded like he was walking back spokesman Tony Fratto's assertion last week that the president might approve more waterboarding. Bush sided in the interview with CIA director Michael Hayden's view that waterboarding was legal when it was conducted in 2002 and 2003, but may no longer be legal.

Said Bush: "First of all, whatever we have done was legal, and whatever decision I will make will be reviewed by the Justice Department to determine whether or not the legality is there. And the reason why there is a difference between what happened in the past and today, there is a new law."

Then, however, Bush made an unsupported claim, and issued a challenge that the media and his critics should pick up with vigor: "The American people have got to know that what we did in the past gained information that prevented an attack. And for those who criticize what we did in the past, I ask them, which attack would they rather have not permitted -- stopped? Which attack on America did they -- would they have said, well, you know, maybe it wasn't all that important that we stop those attacks."

But if the American people have "got to know" that torture gained information that prevented an attack, Bush needs to start making a better case. As I've written repeatedly, he has yet to offer any evidence that intelligence produced by torture thwarted a single plot or saved a single life.

The media should demand that he back it up or take it back.

And yet, Fox News's Chris Wallace responded not with a challenge but with what may go down as one of the most inappropriate and insufficient follow-ups in presidential history.

Said Wallace: "I want to follow up on that. Whether it is interrogation of terror prisoners or the intercepting of surveillance among al Qaeda members, are you ever puzzled by all of the concern in this country about protecting of rights of people who want to kill us?"

Even Bush had to come to the defense of his critics.

Said Bush: "That is an interesting way to put it. I wouldn't necessarily define some of the critics of my policy that way. I would say that they want to be very careful that we don't overstep our bounds from protecting the civil liberties of Americans."

Blogger John Amato shows video of Bush's bizarre expression while listening to Wallace's questions about waterboarding: He can't stop smiling.

Meanwhile, Richard E. Mezo writes in a Washington Post op-ed: "As someone who has experienced waterboarding, albeit in a controlled setting, I know that the act is indeed torture. I was waterboarded during my training to become a Navy flight crew member. As has been noted in The Post and other media outlets, waterboarding is 'real drowning that simulates death.' It's an experience our country should not subject people to. . . .

"Back then, we didn't call it waterboarding -- we called it 'water torture.' We recognized it as something the United States would never do, whatever the provocation. As a nation, we must ask our leaders, elected and appointed, to be aware of such horrors; we must ask them to stop the narrow and superficial thinking that hinges upon 'legal' definitions and to use common sense. Waterboarding is torture, and torture is clearly a crime against humanity."

Glenn Greenwald blogs for Salon: "The Senate today -- led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus -- will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration's years-long illegal spying programs aimed at Americans. . . .

"What were the consequences for the President for having broken the law so deliberately and transparently? Absolutely nothing. To the contrary, the Senate is about to enact a bill which has two simple purposes: (1) to render retroactively legal the President's illegal spying program by legalizing its crux: warrantless eavesdropping on Americans, and (2) to stifle forever the sole remaining avenue for finding out what the Government did and obtaining a judicial ruling as to its legality: namely, the lawsuits brought against the co-conspiring telecoms. . . .

"[I]t isn't merely that the Democratic Senate failed to investigate or bring about accountability for the clearest and more brazen acts of lawbreaking in the Bush administration, although that is true. Far beyond that, once in power, they are eagerly and aggressively taking affirmative steps -- extraordinary steps -- to protect Bush officials. While still knowing virtually nothing about what they did, they are acting to legalize Bush's illegal spying programs and put an end to all pending investigations and efforts to uncover what happened.

"How far we've come -- really: disgracefully tumbled -- from the days of the Church Committee, which aggressively uncovered surveillance abuses and then drafted legislation to outlaw them and prevent them from ever occurring again. It is, of course, precisely those post-Watergate laws which the Bush administration and their telecom conspirators purposely violated, and for which they are about to receive permanent, lawless protection."

Here's a White House " Fact Sheet" on telecom immunity: "Companies should not be held responsible for verifying the government's determination that requested assistance was necessary and lawful -- and such an impossible requirement would hurt our ability to keep the Nation safe."

But isn't that the very definition of a police state: that companies should do whatever the government asks, even if they know it's illegal?

Indeed, Democratic Sen. Russell Feingold took to the Senate floor with a little history lesson yesterday: "With the willing cooperation of the telephone companies, the FBI conducted surveillance of peaceful anti-war protesters, journalists, steel company executives . . . and even Martin Luther King Jr., an American hero whose life we recently celebrated.

"Congress decided to take action. Based on the history of, and potential for, government abuses, Congress decided that it was not appropriate for telephone companies to simply assume that any government request for assistance to conduct electronic surveillance was legal. Let me repeat that: a primary purpose of FISA was to make clear, once and for all, that the telephone companies should not blindly cooperate with government requests for assistance.

"At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the government's request for assistance was a lawful one. That approach would leave the companies in a permanent state of legal uncertainty about their obligations.

"So Congress devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the companies' legal obligations and liability depend entirely on whether the government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and will be immune from liability. If the proper documentation has not been submitted, the company must refuse the government's request, or be subject to possible liability in the courts."

Bush weighed in on FISA in his Fox News interview: "I think we're going to get a good bipartisan bill and so I applaud those Democrats. I'm not going after those Democrats. But there is a big part of the Democrat (sic) Party that is against giving our intelligence officers the tools necessary to protect America."

The Washington Post editorial board writes: "With each passing week, the fate of e-mails generated by President Bush's staff grows more curious and troubling. While evidence has not emerged of a deliberate effort by the White House to destroy sensitive electronic messages, there's reason to be concerned about the potential loss of historical records. . . .

"Each missing e-mail is one less piece of the puzzle of how policies are made and decisions are reached. In an ideal world, the National Archives would have more than an advisory role in how records are handled during a president's term. An attempt to give it some authority could set up a fight between the legislative and executive branches. When it comes to preserving the nation's history, that's a battle worth waging."

Pete Yost writes for the Associated Press: "A federal judge agreed Monday to allow a private group to delve into the operations of an office at the White House as part of a controversy over whether large amounts of e-mail have disappeared.

"Permitting any private organization to inquire into White House functions is an unusual step, a point U.S. District Judge Colleen Kollar-Kotelly underscored in her six-page order.

"The judge said she will allow Citizens for Responsibility and Ethics in Washington to gather a 'very limited' amount of information from the White House Office of Administration, which is in charge of preserving e-mail.

"The issue for Kollar-Kotelly is whether the Office of Administration operates with substantial independent authority. If the judge finds that it does, the private group can pursue data about what went wrong with the White House e-mail system.

"If the judge decides that the office's functions are limited to serving the president, she likely will dismiss the suit. . . .

"The Office of Administration, along with the Office of Management and Budget and other White House units with substantial independent authority, regularly provided records under the Freedom of Information Act in the past."

Richard Wolf writes in USA Today: "First lady Laura Bush read Goodnight Moon by video hookup at last year's awards gala for Reading Is Fundamental, a $25 million federal program that distributes books to low-income children. Five months later, President Bush wants to say good night to the program.

"The Bush administration lays out its case today against 151 federal programs it proposes to eliminate or reduce, including Reading Is Fundamental, even though Bush's success rate in Congress has declined steadily since the 2006 fiscal year."

Michael Abramowitz and Robin Wright write in The Washington Post: "President Bush drew great applause during his State of the Union address last month when he called on Congress to allow U.S. troops to transfer their unused education benefits to family members. 'Our military families serve our nation, they inspire our nation, and tonight our nation honors them,' he said.

"A week later, however, when Bush submitted his $3.1 trillion federal budget to Congress, he included no funding for such an initiative, which government analysts calculate could cost $1 billion to $2 billion annually."

Robert Pear writes in the New York Times: "President Bush often denounces the propensity of Congress to earmark money for pet projects. But in his new budget, Mr. Bush has requested money for thousands of similar projects. . . .

"Thus, for example, the president requested $330 million to deal with plant pests like the emerald ash borer, the light brown apple moth and the sirex woodwasp. . . .

"At the same time, Mr. Bush requested $894,000 for an air traffic control tower in Kalamazoo, Mich.; $12 million for a parachute repair shop at the American air base in Aviano, Italy; and $6.5 million for research in Wyoming on the 'fundamental properties of asphalt.' . . .

"The White House contends that when the president requests money for a project, it has gone through a rigorous review -- by the agency, the White House or both -- using objective criteria."

Neil Irwin writes in The Washington Post: "The economy may grow slowly the first half of this year, the Bush administration said yesterday, but it is not in recession.

"The economic stimulus bill that President Bush plans to sign this week, combined with interest rate cuts by the Federal Reserve, will result in stronger growth in the second half of the year, according to the annual Economic Report of the President.

"'I don't think that we are in a recession right now, and we are not forecasting a recession,' said Edward P. Lazear, chairman of the president's Council of Economic Advisers, in a briefing with reporters. 'We are forecasting slower growth.'"

But Edmund L. Andrews writes in the New York Times that "a growing number of analysts contend that the United States has already slipped into a recession and will get only a temporary lift from the stimulus package this summer."

Jeannine Aversa writes for the Associated Press: "The heck with Congress' big stimulus bill. The way to get the country out of recession -- and most people think we're in one -- is to get the country out of Iraq, according to an Associated Press-Ipsos poll.

"Pulling out of the war ranked first among proposed remedies in the survey, followed by spending more on domestic programs, cutting taxes and, at the bottom end, giving rebates to poor people in hopes they'll spend the economy into recovery."

Peter Baker writes in The Washington Post: "President Bush waded directly into the presidential campaign in an interview broadcast yesterday, defending Sen. John McCain as a 'true conservative' but warning that his onetime rival needs to shore up relations with the Republican Party's base to take the fight into the general election this fall."

As for W's relationship with George Herbert Walker Bush?

Wallace: "I wonder what you make of all the talk and you've read it, you've heard it, that you're either trying to pass your father or you're trying to copy him, that you went into Iraq to finish the job because he didn't or that you organized your first term to try to win the reelection, he didn't.

"What do you -- set the record straight on that."

Bush: "It's shallow. Shallow psychobabble. You asked me what I think. It's -- "

Wallace: "Well -- "

Bush: "A bunch of people obviously got too much time on their hands."

Arielle Levin Becker writes in the Hartford Courant: "'I appreciate that I'm a myth,' Karl Rove told the 850 or so Choate Rosemary Hall students, administrators and faculty members who packed an auditorium on the prep school's Wallingford campus Monday. . . .

"Rove had been a prominent figure in campus debate since plans for him to speak at Choate's June graduation became public. Some students, who deemed him too controversial or unethical to grace their commencement, plotted protests. Late last month, Rove opted to speak to students in a special program Monday rather than at graduation. . . .

"The event was closed to the public and most media outlets, but the school granted The Courant's request to attend."

Becker describes Rove's predictably contentious responses to the students who dared challenge him.

"The final question came from Alessio Manti, a senior who had been outspoken in his opposition to Rove's planned graduation visit. Manti asked if Rove considered himself a role model.

"'Frankly, with all due respect, I don't care to be a role model for anybody except my family,' he said."

Robert Barnes writes in The Washington Post: "Vice President Cheney signed on to a brief filed by a majority of Congress yesterday that urged the Supreme Court to uphold a ruling that the District of Columbia's handgun ban is unconstitutional, breaking with his own administration's official position.

"Cheney joined 55 senators and 250 House members in asking the court to find that the Second Amendment protects an individual's right to possess firearms and to uphold a lower court's ruling that the D.C. ban violates that right. That position is at odds with the one put forward by the administration, which angered gun rights advocates when it suggested that the justices return the case to lower courts for further review.

"In order to make his dramatic break with the administration, Cheney invoked his rarely used status as part of Congress, joining the brief as 'President of the United States Senate, Richard B. Cheney.' It is a position he has used at times to make the point that he is sometimes part of the legislative branch and sometimes part of the executive. . . .

"Lawyers said it may be unprecedented for a vice president to take a position in a case before the high court that is at odds with one the Justice Department puts forward as the administration's official position."

Pianist and conductor Leon Fleisher writes in a Washington Post op-ed about the downside of being a Kennedy Center Honoree: "What made me unhappy and continues to trouble me was that I was required to attend a White House reception on the afternoon of the gala. I cannot speak for the other honorees, but while I profoundly respect the presidency, I am horrified by many of President Bush's policies.

"In the past seven years, Bush administration policies have amounted to a systematic shredding of our nation's Constitution -- the illegal war it initiated and perpetuates; the torturing of prisoners; the espousing of 'values' that include a careful defense of the 'rights' of embryos but show a profligate disregard for the lives of flesh-and-blood human beings; and the flagrant dismantling of environmental protections. These, among many other depressing policies, have left us weak and shamed at home and in the world.

"For several weeks before the honors, I wrestled with this dilemma, deciding in the end that I would not attend the reception at the White House. That decision was met with deep, if understandable, disapproval by the powers that be. . . . I was asked to attend all of the scheduled events and to follow the well-established protocol of silence. . . .

"In the end, I decided to attend wearing a peace symbol around my neck and a purple ribbon on my lapel, at once showing support for our young men and women in the armed services and calling for their earliest return home."

I'll be Live Online tomorrow at 1 p.m. ET. Come join the conversation.

Tom Toles and Paul Conrad on the Bush legacy; Dan Wasserman on the fruits of torture; Clay Bennett on Bush's leadership; Jeff Danziger and Bruce Beattie on McCain's Bush problem; Ann Telnaes's patriotic performance measurements.