Senators launch critical look at security measures

Military tribunal plan, constitutional fears draw oversight panel's focus

War On Terrorism

November 29, 2001|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

WASHINGTON - The Bush administration's efforts to broadly expand its powers to combat terrorism came under harsh scrutiny yesterday from some key lawmakers in both parties who argued that the courts and Congress have been wrongly cut out of the process.

The lawmakers warned that the administration's recent unilateral steps - such as allowing secret military tribunals to try suspected foreign terrorists and authorizing investigators to listen to some jailhouse conversations between lawyers and their clients - could backfire if courts later find them unconstitutional.

"This is no mere technicality," Sen. Patrick J. Leahy, the Vermont Democrat who is chairman of the Senate Judiciary Committee, said as oversight hearings began. "It fundamentally jeopardizes the separation of powers that undergirds our constitutional systems."

But the Justice Department lawyer who is overseeing the investigation told the Senate panel that the attacks of Sept. 11 demanded that the administration move swiftly and forcefully to prevent new violence.

"Are we being aggressive and hard-nosed? You bet," the government lawyer, Michael Chertoff, an assistant attorney general, testified. "But let me emphasize that every step that we have taken satisfies the Constitution and federal law as it existed both before and after Sept. 11."

Chertoff's position was supported by two former attorneys general and by several Republican senators, who said they believe the government has taken appropriate steps to respond to the attacks.

"Indeed, most Americans are worried that we haven't done enough to fight terrorism - not that we've done too much," said Sen. Orrin G. Hatch, a Utah Republican, who, along with Leahy, called for the oversight hearings. The hearings will continue next week with testimony from Attorney General John Ashcroft.

Critics who say the Bush administration has gone too far in its law enforcement response pointed this week to Spain, where authorities have arrested 14 alleged members of Osama bin Laden's terrorist network. Spanish officials have said they would refuse to extradite the defendants to the United States if the men would face secret military trials.

During a White House visit yesterday, Prime Minister Jose Maria Aznar of Spain said his government would consider whether to send the men to U.S. authorities only "if and when the United States requests that extradition." But he pledged to work closely with the United States.

"The only fate that awaits terrorists is death, and the only option for terrorists is to be brought to justice," Aznar said.

In his testimony to the Senate, Chertoff defended the possible use of military tribunals, as well as new Justice Department policies authorizing investigators to listen to some attorney-client conversations and to interview about 5,000 foreign men who are recent arrivals in the United States.

The detention of hundreds of people, many of them on relatively minor charges, is necessary, Chertoff said, to prevent attacks by terrorists who manage to blend into American communities and escape the notice of authorities.

Ashcroft has disclosed that more than 600 people remain in federal custody, the vast majority of them - 548 - on immigration violations. The government has also charged 104 other people with federal crimes in connection with the terror investigation.

The attorney general refused this week to say whether any of the detainees had been directly implicated in the attacks. But he said authorities have in custody several suspected al-Qaida members.

In his Senate testimony, Chertoff said that military tribunals could serve an important function. The secret trials would take place behind closed doors or outside the country. The administration argues that this would ensure the safety of civilian judges and jurors.

Bin Laden "and his followers actually believe that they have a duty to kill Americans," Chertoff said. "And those are not my words. Those are his."

Two former attorneys general - Griffin B. Bell, who served in the Carter administration, and William P. Barr, who served under President George H.W. Bush - testified that use of military tribunals would pass constitutional muster.

"Our national goal in this instance is not the correction, deterrence and rehabilitation of an errant member of the body politic," Barr said. "It is the destruction of a foreign force that poses a risk to our national security."

The possibility of secret military trials, though, continued to draw criticism from some in Congress who say the proceedings could violate constitutional protections and send the wrong message abroad. The tribunals would be able to use hearsay evidence, for example, and would grant defendants no right to appeal.

Sen. Arlen Specter, a Pennsylvania Republican, sharply questioned Chertoff yesterday, the same day that Specter criticized the tribunal proposal on the opinion pages of The New York Times and argued for "vigorous congressional oversight."

"It was surprising to me that the attorney general did not consult with any member of this committee - a year ago, he sat on this side," Specter said during the hearing. Ashcroft is a former Missouri senator who served on the Judiciary Committee until he lost his bid for re-election last year.

Sen. Charles E. Schumer, a New York Democrat, suggested that military tribunals might play a critical role as suspected terrorists are brought to trial. But he faulted the administration's handling of the executive order, just weeks after the White House and Congress together swiftly pushed through new anti-terrorism measures.

"Those who say we should just have regular trials, as if it was someone who held up a candy store - that doesn't make much sense," Schumer said. "On the other hand, I do think that when you are dealing with issues like this in terms of due process, secrecy, right to counsel - there ought to be discussion."

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