The Attorney General has powerful new tools to fight terrorism. Has he gone too far?
The most tension-packed moment of Assistant Attorney General Michael Chertoff's appearance before the Senate Judiciary Committee last week came, not surprisingly, when he was forced to defend the Bush Administration's embrace of military tribunals. How could the U.S. hold trials in which the judges are military officers, just a two-thirds vote is sufficient to convict, and there is no need for proof beyond a reasonable doubt? How could the Administration support legal proceedings that are held in secret--meaning a defendant can go from being charged to being put to death without the public ever finding out? "Whether you have a civilian tribunal or a military tribunal, it's possible to have a fair one and it's possible to have an unfair one," said Chertoff with steely determination. "It's how you implement it."
The Bush Administration has been just as resolute in defending other hard-nosed legal strategies it has rolled out since Sept. 11--a broad array of tactics that supporters are calling necessary tools in the war on terrorism and that critics are attacking as the sharpest curtailment of civil liberties in decades. Among the flash points: a new measure that allows the government to listen in on conversations between some suspects and their attorneys, the detaining of more than 500 people nationwide without publicly revealing their identities or the charges against most of them, and the ongoing interrogation of 5,000 people within the Arab-American or Muslim communities.
It's been true throughout American history that when the bullets fly, civil liberties are among the first casualties. During the Civil War, Abraham Lincoln suspended the right of habeas corpus, the constitutionally enshrined procedure by which a defendant can challenge a wrongful conviction. In World War II, Franklin Roosevelt interned 120,000 Japanese Americans and tried accused German saboteurs in military courts. The Bush Administration is leaning on these historical precedents in saying the traditional balance between security and freedom needs to shift, at least in the short term. "We're an open society," President Bush declared last week, "but we're at war."
The public, so far at least, is going along. Polls show strong support for everything from increased government power to detain legal immigrants--82% are in favor, according to a Gallup survey--to military tribunals. Most seem to agree with the blunt logic of Utah Republican Senator Orrin Hatch. "Yes, the Administration has been aggressive in using all of the constitutional powers at its disposal," he argues, but it's justified because terrorists "are trying to kill Americans--as many as they possibly can."
For much of the past two months, what little criticism there has been of the Bush Administration's law-enforcement tactics has come from the Russ Feingolds of the left and the Bob Barrs of the right. But lately there has been a rising tide of skepticism from the political middle, including some influential members of Congress. That skepticism is likely to increase, with reports that the Justice Department is considering reversing time-honored 1970s rules that bar the FBI from spying on religious and political organizations. The FBI has been frustrated since the first World Trade Center attack in 1993, when it learned that Islamic terrorists were recruiting and organizing in mosques but could not send in agents or install wiretaps to investigate. Dropping the rules, however, would probably draw the ire of groups ranging from liberal black churches, whose congregants remember the FBI's harassment of Martin Luther King Jr., to fundamentalist Christians, many of whom regard the Federal Government as hostile--and many religious and political bodies in between.
The debate over the Bush Administration's new legal initiatives will come to a head this week when Attorney General John Ashcroft appears before the Senate Judiciary Committee. Many Senators, particularly Republicans, are squarely behind the Administration. No one expects the Senate to vote to restrict the government's actions; Senators know that doing anything these days that smacks of being weak on terrorism is political suicide. But they want to send a message that they are watching and intend to play a bigger role in setting law-enforcement policy from now on.
Civil libertarians raise three main objections to the tactics the Bush Administration is using to fight terrorism. They argue that even in the current extreme circumstances, some government initiatives aimed at terrorist suspects, like military tribunals, simply go too far. They are worried that the new rules may reshape the legal landscape for all Americans--not just for noncitizens and not just for suspected terrorists. And they are concerned that by brushing aside Congress and the judiciary, the Bush Administration is throwing off the delicate balance among the three branches of government that was intended by the Founding Fathers.
Much of the Bush Administration's homeland war on terrorism has been entirely reasonable. Law enforcement has been criticized for rounding up more than 1,000 people in the course of the investigation; more than 500 are still being detained. The rap: that many are in for minor criminal offenses and immigration fraud. Since the vast majority are immigration detainees and their names have been withheld, it's a hard claim to evaluate. But it is clear, based on the cases of 93 people charged criminally and on the immigration violators whose names have been released, that at least some of the detainees are exactly the sort of people Americans would want the FBI to zero in on.
The Justice Department insists that at least a few of the detainees belong to al-Qaeda. And many of those who do not belong have broken the law in troubling ways. The largest group is a ring of 22 Arab men who submitted false IDs and background information and paid bribes to obtain permits to transport hazardous materials. Law enforcement's fear: that they were part of an al-Qaeda plot to turn a chlorine or liquid-gas truck into a bomb on wheels capable of killing tens of thousands. The men turned out not to be terrorist linked. But with Osama bin Laden vowing to use weapons of mass destruction in the U.S. and claiming he has sleeper cells in place, it's hard to argue that the Haz-Mat 22 weren't worth some intense scrutiny.
Chasing bad guys is one thing, but critics have raised hell about Ashcroft's initiative to have local police interview some 5,000 men and women in Arab-American and Muslim communities. The government has made clear all along that talking is voluntary and says the interviews afford the government a chance to enlist help from the public. "The way I put it is that this is like a crime has been committed against your next-door neighbor," says presidential counselor Karen Hughes. "This is a chance to help."
That may be true. What is less convincing is the rationale that the approach will turn up something useful. Many of the subjects probably won't talk, particularly since the Immigration and Naturalization Service sent around a memo last week saying any interviewees in the country illegally can be held on immigration charges. The day after eight former high-ranking FBI officials attacked the effectiveness of the program in a front-page Washington Post article, the Justice Department moved to sweeten the pot. It announced the "Responsible Cooperators Program," which offers fast-track naturalization and, ultimately, the possibility of citizenship to foreigners, including illegal immigrants, who provide information that leads to the apprehension of terrorists.
Many other aspects of the Bush Administration's new legal landscape will and should provoke even fiercer debate. At the top of the list is military tribunals, which civil libertarians regard as a perversion of the American justice system. The precise rules for how such tribunals would work have yet to be announced. According to legal experts, it is likely that they would be based on the Uniform Code of Military Justice, which calls for military officers as judges and in many cases allows a conviction based on a two-thirds vote. But military tribunals would have even fewer legal niceties than those already stripped-down procedures. Among the protections likely to be missing: the ban on hearsay and the exclusionary rule, which keeps out evidence collected improperly.
Whether a defendant could appeal a conviction is unclear. Legal experts say there may be no direct appeal. And President Bush's order, which says defendants "shall not be privileged to seek any remedy or maintain any proceeding" in another court, can be read as an attempt to deny the right of habeas corpus.
Above all, critics of the tribunal idea question why these cases cannot be brought and won in regular federal courts. When the World Trade Center was attacked in 1993, federal prosecutors convicted the bombers, including mastermind Ramzi Ahmed Yousef, in a regular federal court in Manhattan. Sheik Omar Abdel Rahman, the blind Egyptian cleric who plotted to blow up the United Nations and New York City-area bridges and tunnels, was also convicted in a regular federal court.
The Administration has expressed concern that if suspected terrorists face ordinary trials, confidential evidence and informants' names will be released. But there are ample procedures for keeping those under court seal, as was done in the first World Trade Center trial. Ashcroft told TIME the military tribunals are at least partly about winning the public relations war. "The people know it would be a farce to capture somebody on their way to America to perpetrate a terrorist act, read them their Miranda rights, equip them at public expense with a flamboyant defense attorney, to bring them into a trial so that it becomes Osama TV," Ashcroft said.
But the Bush Administration may not have the last word on military tribunals, since it's not clear our allies will stand for them. Spain has said it will resist extraditing 14 suspected al-Qaeda members it has arrested unless it is assured they will be given civilian trials. Since foreign countries have so far rounded up the vast majority of the 350 al-Qaeda members the Administration says have been arrested since Sept. 11--including two more in Italy late last week--the Administration may be forced to back down and hold civil trials if it wants to try them in the U.S.
Backing down may be what the Bush Administration is doing. Officials this week talked about using the tribunals mostly for foreigners who are picked up abroad. This raises questions about whether the Administration intends to use them at all for those detained in the U.S.--such as Zacarias Moussaoui, the alleged 20th hijacker from Sept. 11. New guidelines could make clear that military tribunals will be limited to "real foreign terrorists who violated the laws of war and engaged in unlawful belligerency against the U.S.," a White House official told TIME. "As soon as people understand the military commissions are going to be for really bad people, they'll be more comfortable." Among the venues reportedly being considered for the trials: Guam, Midway or the deck of U.S. warships in international waters--which would provide security and convenience.
Another area in which the Bush Administration is likely to face prolonged criticism is the secrecy of its detentions. Even many who believe the roundups are justified are troubled that the government won't say whom it's holding. Critics say that having people disappear into government custody smacks of authoritarianism--and conjures up memories of the desaparecidos, the dissidents who mysteriously disappeared in 1970s Argentina. Such secrecy makes it difficult to verify that the detentions are justified.
The Bush Administration has made fumbling attempts to justify the shadow detentions. At first Ashcroft claimed that the detainees' identities were being kept secret for their own benefit--to prevent the creation of a McCarthy-style blacklist. When that explanation was widely derided, the Justice Department offered a new justification: that some of the detainees were members of "sleeper cells" and that law enforcement did not want to tell the enemy which of its agents were out of commission. "We might as well mail this list to the Osama bin Laden al-Qaeda network as to release it," Ashcroft said.
Still, the criticism seems to have had an impact. The day before the Senate Judiciary Committee's hearings began, the Administration published a list of the names of 93 people arrested in connection with the terror probe. Although it refused to identify the rest of the 548 detainees still in custody, it did give a more detailed accounting of them, including their places of birth, the charges against them, and their dates of arrest.
Now civil libertarians are fretting over the new tools the government has given itself to monitor these suspects. A few weeks ago, the Justice Department authorized law enforcement to monitor communications between certain suspects and their lawyers. It was a blockbuster of a decision because private attorney-client communications have long been sacrosanct in the law--repeatedly held by courts to be essential to ensure that defendants get a fair trial.
The Justice Department has tried to justify the intrusion as necessary to prevent terrorists from using their counsel, in the tradition of mob consiglieres and drug-kingpin lawyers, to convey information to co-conspirators on the outside. At last week's Senate hearing, Chertoff quoted from an al-Qaeda terrorism manual obtained overseas that urged members to take advantage of prison visits to communicate useful information.
One of the most troubling aspects of the new rule, civil libertarians say, is that the Attorney General--not a neutral party, like a judge--decides when law enforcement can listen in. You don't need to know much more constitutional law than you'd get on The Practice to realize this sort of monitoring goes to the core of the American justice system. Sure enough, by last week the Administration was backpedaling on this point--not rescinding the rule, but going out of its way to say only 16 of the 158,000 inmates in the federal system have been assigned the special administrative status that makes them eligible for monitoring.
Civil libertarians are worried that what they see as the Bush Administration's post-Sept. 11 rights grab on all these different fronts will be with us forever. Congress insisted on applying the sunset rule to many provisions of the U.S.A. Patriot Act, the main new law to come out of the Sept. 11 attacks: if they are not passed again in four years, they disappear. But unlike Roosevelt's 1942 military-tribunal order, which authorized just one trial, Bush's order on tribunals has no end date. Attorney-client monitoring is also open-ended.
Critics fear that the new legal rules will wind up being used against all Americans, not just suspected al-Qaeda members. The "domestic terrorism" provisions of the act have a very broad reach: they can apply to anyone who intimidates or coerces the government through criminal activity that is dangerous to human life. That could mean getting into a heated fight with a police officer at an antiglobalism protest. "If you're a member of Greenpeace and Greenpeace sails a ship into an American naval vessel, you can find yourself covered under the definition of international terrorist," says Mort Halperin, a senior fellow at the Council on Foreign Relations and onetime head of the A.C.L.U.'s Washington office. "You could be subject to secret searches of your home, to wiretaps under much less stringent standards than under the requirements of criminal law."
Many of the new rules could easily be applied to conduct surveillance on ordinary Americans. The act gives the government broad new power to conduct "sneak and peek" searches--to go into Americans' homes when they're out and look around without telling anyone. Such searches are far more intrusive than traditional "knock and announce" ones.
The Bush Administration's new rules will also have an impact in less expected areas--like access to government records. The Justice Department has raised the standard for getting material under Freedom of Information Act requests, a chief tool of watchdogs checking up on government. And federal agencies are pulling down information of all kinds from their websites. Preventing Web-surfing terrorists from learning the location of power plants and gas lines makes sense. But some of this data pullback could make it harder for ordinary folks to get information they need--like whether, say, a cancer-causing factory is located near a home they're thinking of buying.
If Ashcroft had taken the Bush Administration's more controversial initiatives to Capitol Hill, he might have avoided some of the backlash. But while Congress was passing the U.S.A. Patriot Act, the Attorney General was writing far-reaching rules of his own and issuing them through the Federal Register. "We felt that we had been asked for and had given the Administration the tools it needed to fight terrorism," says Illinois Democrat Dick Durbin. Its unhappiness at being kept in the dark is the reason the Senate Judiciary Committee called Ashcroft in this week to explain himself.
Setting up courts, for instance, is lawmaking--Congress's job, under the Constitution--says A.C.L.U. legal director Steve Shapiro. But instead of asking Congress to pass a law authorizing military tribunals, the President issued an order that "allows the President to circumvent the civil justice system by the stroke of a pen." When defendants in these tribunals challenge their convictions by habeas corpus--if they can--they are sure to argue that the military courts were not established constitutionally.
The Bush Administration has also, in at least one controversial case, attempted to push aside the judiciary. A Justice Department rule issued by Ashcroft in late October without public notice or debate says the INS can ignore an immigration judge's order to release an alien on bail while his deportation is being litigated. The order threatens to usher in Alice in Wonderland proceedings, in which the result is the same no matter which way the judge rules.
Emergencies do not last forever, and as the sense of crisis ebbs, the other branches of government will no doubt step in again, as they have done throughout history. After Congress has its say, the courts will have theirs. Civil-liberties groups like New York's Center for Constitutional Rights have begun talking with defense lawyers for some of the detainees, hoping to put together test cases that challenge military tribunals, secret detainments, attorney-client eavesdropping and other policies. The main delay is that the cases can't be brought until someone is subjected to these policies.
But the biggest factor of all--the one that has throughout American history held authoritarianism at bay--is popular opinion. In the post-World War I Palmer Raids, 6,000 people were rounded up after a series of bombings by suspected anarchists, one of which destroyed Attorney General A. Mitchell Palmer's home. As the threat of violence abated, popular opinion turned against the raids and in favor of greater political freedoms.
Today, even as polls show strong support for the Bush Administration's measures, opinion takers are picking up on the stirrings of skepticism. Focus groups--wide-ranging interviews in which participants talk about their concerns rather than respond to questions--suggest that Americans see the relationship between security and freedom not as a clash of absolutes but as a balance of values, both of which are important to them. "People raise the concern on their own," an influential Democratic strategist told Time. "It's very much in the context of 'If we become like them, they've won.'"
But the free and open debate going on right now about proper methods of law enforcement and the role of the Executive Branch shows just the opposite: that America's enemies, who hate us because we are free, have undeniably lost.
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Cover Date: December 10, 2001
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