CIVIL LIBERTIES
White House Push on Security Steps Bypasses Congress
By ROBIN TONER and NEIL A. LEWIS
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."
Copyright 2001 The New York Times Company
March 12, 2002
Why Congress Has to Ask Questions
By ROBERT C. BYRD
WASHINGTON — Do members of Congress have any business questioning a president's military strategy in the midst of war? That was the question swirling around Capitol Hill last week. In the heat of debate, some went so far as to insinuate that any questioning of a wartime president is divisive and unpatriotic.
What dangerous nonsense this is. Congress not only has the right to question a president's policies, but also the duty. In a war, the American people have every right to a full accounting of what their sons and daughters are fighting for and what their government expects to achieve. To question is not to accuse or to condemn. To question is to seek the truth. The less forthcoming a president is, the more Congress will have to probe for answers. Such is the current situation.
In the wake of Sept. 11, President Bush declared all-out war on terrorism. Money is no object; time is no deterrent. We will win this war, the president vowed. We will hunt down and destroy the terrorists.
Those words constitute a sweeping manifesto. I support the president's commitment, but as a senator, I have a responsibility to look beyond the rhetoric. How will we win this war? What are the costs? What are our objectives? What are the standards by which we measure victory? How long will we be in Afghanistan? Where else will we go?
The Constitution states that the president shall be commander in chief, but it is Congress that has the constitutional authority to provide for the common defense and general welfare, to raise and support armies, and to declare war. In other words, Congress has a constitutional responsibility to weigh in on war-related policy decisions.
Yet in this war on terrorism, Congress, by and large, has been left to learn about major war-related decisions through newspaper articles. One day we hear that American military advisers are heading to the Philippines. Another day we read that military personnel may go into the former Soviet republic of Georgia. The next day we are sending advisers into Yemen. And, oh yes, we also learn from news reports that we have a shadow government in our own backyard, composed of unknown bureaucrats, up and running at undisclosed locations, for an indeterminate length of time.
Is it any wonder that members of Congress are beginning to question whether the administration is deliberately leaving Congress in the dark — or whether the administration is making major policy decisions on the fly, without taking time for due consideration or consultation? Neither scenario is comforting. And while the administration has started to meet with some members of Congress, it appears to be more in reaction to criticism than in genuine cooperation and consultation.
Last Wednesday, the remains of seven American servicemen killed in combat in Afghanistan were brought home to Dover Air Force Base. The ceremony was a somber and chilling reminder of what is involved in prosecuting America's war on terror. It was a reminder that the waging of war is not merely a matter of political debate. It is a matter of guns and bullets and bombs and bloodshed. It is a matter of committing our sons and daughters to a life-and-death struggle.
The loss of American lives in Afghanistan requires that we question the president's wartime policies, no matter how uncomfortable the questioning may be. We owe that to the Americans who have died, and who will die, in the course of what may be a long and murky war.
Robert C. Byrd is a Democratic senator for West Virginia.
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