America's New War?
Or War On Americans?

White House Push on Security Steps Bypasses Congress


By Robin Toner and Neil A. Lewis
New York Times
November 15, 2001

WASHINGTON, Nov. 14 — The Bush administration has moved swiftly in the last few weeks to expand its national security authority and law enforcement powers in ways that are intended to bypass Congress and the courts, officials and outside analysts say.

Administration officials say the recent executive branch orders — which allow the government to use military tribunals to try foreigners charged with terrorism, permit the questioning of thousands of mostly Middle Eastern men who have recently entered the United States, slow down the process for granting visas to Muslim men and monitor communications between some people in federal custody and their lawyers — are necessary legal weapons in the war against terrorism.

"Foreign terrorists who commit war crimes against the United States, in my judgment, are not entitled to and do not deserve the protections of the American Constitution, particularly when there could be very serious and important reasons related to not bringing them back to the United States for justice," Attorney General John Ashcroft said at a news conference today, alluding to the use of military tribunals. "I think it's important to understand that we are at war now."

And speed is of the essence, administration officials say, arguing that even a wartime Congress would not move fast enough to help the authorities counter new terrorism threats.

But some lawmakers say they are increasingly concerned about such a unilateral approach to issues fraught with constitutional implications. They note that Congress has offered little resistance to most of the administration's security-related requests since the attacks, producing an antiterrorism law that Mr. Ashcroft demanded in the unusually short period of six weeks.

Now, said Senator Patrick J. Leahy, the Vermont Democrat who is the chairman of the Judiciary Committee, lawmakers are learning about major policy shifts in the newspapers. "We're really not being consulted at all," he said, "and it's hard to understand why."

It is not only Democrats who have qualms about the administration's approach. Representative Bob Barr, Republican of Georgia and a member of the Judiciary Committee, said, "I'm not aware that they're consulting at all."

Mr. Leahy added in an interview tonight: "We have tried to bend over backwards to give bipartisan support, because most of us have been here for some period of time, and we know that kind of unity gives credibility to what we're doing, and also makes a very concerned American population less concerned. They've got to realize that simply going it alone like this isn't making people feel more secure, it's making them feel more concerned."

Mr. Leahy expressed particular concerns about setting up a military tribunal to try suspected terrorists, suggesting that it could send "a message to the world that it is acceptable to hold secret trials and summary executions without the possibility of judicial review, at least when the defendant is a foreign national."

Senator Tom Daschle of South Dakota, the Democratic leader, also said today that he had constitutional concerns over the administration's decision to allow special military tribunals to try foreigners charged with terrorism. Mr. Daschle said he supported the goal of swift justice for terrorists, but wanted to ensure that it was done without undermining constitutional protections.

But the administration is clearly convinced that it has public opinion on its side. And even the six weeks Congress took to produce the antiterrorism bill was too protracted in the view of White House officials and administration lawyers.

One senior Justice Department official, referring to the Sept. 11 attacks in explaining why the administration is reluctant to expose new policies to time-consuming Congressional debate, said, "People here are imbued with the idea that this shouldn't be allowed to happen again, and that has made us impatient."

Another Justice Department official said the approach was to strengthen as many policies as possible that did not require Congressional approval.

"We have a top-to-bottom review going on right now on our policies, all our guidelines and directives," this official said. "We're moving full speed ahead to effect the formal shift in direction of the department and the executive branch to be aimed at prevention of future terrorist acts."

Justice Department lawyers are reviewing and recommending changes in directives on how to deal with undercover operations, foreign intelligence and confidential informants, the official said.

Administration officials today insisted that all of the changes they had instituted over the last few weeks were not only constitutional but merely a revival of powers that had been used in past times of crisis.

The policy changes, like the creation of military tribunals for terrorist offenses also reflected immediate, pragmatic concerns over how to prosecute the fight against terrorism, the officials said.

One administration official said today that people in the government were keenly aware of the deeply unsatisfying outcome in the trial this year of two Libyans charged in the bombing of Pan American Flight 103 over Lockerbie, Scotland, in which one low-level operative was convicted and another acquitted. "This was not an outcome we would want here," one of the Justice Department officials said.

George J. Terwilliger III, a former deputy attorney general in the first Bush administration, said today that he believed the government was not expanding its legal authority as much as dusting off little-used powers.

"All of these actions are well within the boundaries of the Constitution, but it's just officials acting more aggressively," Mr. Terwilliger said. "There is a range of permissible activities, and we're using more of that range than we do in times of peace."

Prof. Phillip B. Heymann of Harvard Law School, a former deputy attorney general under President Bill Clinton, said he believed that the government wanted the military tribunal because of a fear that it might not be able to convict Osama bin Laden or other suspected terrorists in civilian courts.

Administration officials said military tribunals would be better able to protect confidential information.

But Mr. Heymann said that some terrorists, notably those charged in the 1993 World Trade Center bombing, had been successfully prosecuted in civilian courts with a law that allows classified information to be used in a trial without being disclosed to the public. Similarly, the administration said the tribunals would allow for the protection of witnesses and jurors, but Mr. Heymann said that countless Mafia and drug cartel trials had been conducted where both witnesses and jurors were protected.

"I understand that if we got bin Laden and he were acquitted it would be a staggering event," Mr. Heymann said. "But the tribunal idea looks to me like a way of dealing with a fear that we lack the evidence to convict these people."



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