On Left and Right, Concern Over Anti-Terrorism
Administration Actions Threaten Civil Liberties, Critics Say
By George Lardner Jr.
Washington Post Staff Writer
Friday, November 16, 2001; Page A40
A growing chorus on the left and the right is accusing the Bush administration of ignoring civil liberties while leaving the courts and Congress out in the cold as it aggressively pursues the war on terrorism here and abroad.
Critics ranging from the solidly liberal People for the American Way Foundation to conservative Rep. Robert L. Barr Jr. (R-Ga.) are characterizing recently announced administration plans as ethnic profiling, power grabbing and overzealous law enforcement.
"Military tribunals, secret evidence, no numbers on how many people the government is detaining," said Jim Zogby, president of the Arab-American Institute. "We're looking like a Third World country."
The latest focus of the debate is an order signed by President Bush this week that empowers him to order military trials here and abroad for international terrorists and their collaborators.
But other complaints concern Attorney General John D. Ashcroft's decision to monitor conversations between lawyers and some clients in federal custody if Ashcroft believes it is necessary to thwart future terrorism; the plan to question 5,000 foreign nationals who recently entered the country; and the FBI's visits to hundreds of college campuses to check on the records of foreign students, mostly from Middle Eastern countries.
Under pressure from the Justice Department, the State Department also has agreed to slow temporarily the granting of visas to Arab and Muslim males, ages 16 to 45, from 25 countries so the FBI and the Immigration and Naturalization Service can conduct security checks.
The administration has made no apologies, saying the nation is in the midst of an extraordinary emergency.
"I think it's important to understand that we are at war now," Ashcroft said earlier this week in defending military tribunals.
Assistant Attorney General Viet Dinh said that the overriding goal of the Justice Department is to "prevent further terrorist attacks," but that at the same time it must take care "not to redefine the line between law enforcement and civil liberties."
Critics in Congress, legal scholars and spokesmen for the nation's Arab American community have voiced misgivings about the new anti-terrorism laws, passed last month as the USA-Patriot Act. But they are far more vocal about what the administration has done since then.
Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said he intends to hold hearings on the military tribunals directive and other recent steps that have been taken without consulting Congress.
"There's a lot of disquiet among both Republican and Democratic senators who think the rules of law are being turned on their head, and they wonder what we gain by it," Leahy said in an interview. "I want to know what security needs are being met, or whether this is action for the sake of having action when you can't catch people."
House Judiciary Committee members have also called for hearings. Barr said the administration should have given the new anti-terrorist laws time to work, then gone back to Congress if they turned out to be insufficient.
"Instead, it seems their attitude is, 'Well, that wasn't enough so we're going to take more,' " Barr told a reporter. "I'm not sure we can ever satisfy the federal government's insatiable appetite for more power."
Advocacy groups from both sides of the political spectrum have joined the debate. Ralph Neas, president of the People for the American Way Foundation, accused Ashcroft of "waging a relentless assault on civil liberties." Among the most troubling actions, Neas said, was the order empowering Ashcroft to violate the attorney-client privilege without a court order.
The Justice Department said the order so far pertains only to 13 people in federal custody, none of them connected to the Sept. 11 attacks.
"Terrorism isn't the only threat to our way of life," Neas said yesterday. "We need an attorney general who will stand up to terrorists, but we also need an attorney general who will stand up for the Constitution and the Bill of Rights."
Zogby said the administration's emergency measures are already undermining U.S. credibility abroad, where thousands of Arab men -- students, businessmen and, in some cases, royalty -- are having visa requests held up for security checks.
Just back from a trip to Saudi Arabia and the United Arab Emirates, Zogby said the fear of U.S. authorities there is widespread.
"Forty percent of the students from the UAE who were in the United States . . . have already gone home," Zogby said.
Tim Lynch, director of the Cato Institute's project on criminal justice, said it appears that the president's strong support in public opinion polls has fostered "an arrogance at the White House." He said officials believe they can take presidential power "farther than it's gone before."
Lynch was especially critical of the order for military tribunals. They would be able to impose sentences as severe as death on a two-thirds vote, hold trials in secret and rely on evidence that would be rejected in a civil court.
"It undermines the courts, obviously," Lynch said of the order, "and it undermines Congress because it is essentially legislating action by presidential edict."
Issued by Bush as commander in chief, the military order directs the secretary of defense to detain indefinitely any noncitizen who Bush has "reason to believe" is a past or present member of Osama bin Laden's al Qaeda terror network, has engaged in international terrorism directed at U.S. interests or has "knowingly harbored such individuals."
Military tribunals, using whatever standard of proof Defense Secretary Donald H. Rumsfeld chooses, then would be able to try those individuals for "all offenses triable by military commission" -- in other words, offenses under the laws of war.
"This is absolutely, totally constitutional," an administration official conversant with the decree said yesterday. "The only ones to be tried will be foreign enemy belligerents."
That could include an al Qaeda cell member planning more acts of violence, he said. "If they're hiding and planning acts of violence," he said, "they are in violation of the laws of war. The U.S. Constitution doesn't protect them."
Bush's order does not allow for judicial review. Several legal experts said a little-noticed provision at the end of the directive order also appears to be an effort by the president to suspend the right of habeas corpus, which prisoners can use to challenge their detention.
President Franklin D. Roosevelt claimed such authority, without success, when he ordered a secret military trial of eight Nazi saboteurs during World War II.
Bush said that "any individual subject to this order shall not be privileged to seek any remedy . . . in any court of the United States, or any state thereof."
"The word 'privileged' is the tip-off," said Philip A. Lacovara, a former deputy U.S. solicitor general. He said he was surprised by the provision even though he favors military tribunals as the best response to the attacks of Sept. 11.
"The Constitution sets out only two grounds for suspending the privilege of challenging one's detention on a habeas corpus petition: one is invasion and the other is rebellion. Even in the Civil War, the courts were reluctant to allow President Lincoln to dispense with habeas corpus."
Lacovara added: "It adds another level of controversy to the order."
Dan Bartlett, the White House's communications director, denied that the order forecloses habeas corpus petitions for noncitizens detained in the United States for military trials.
During World War II, the Supreme Court reviewed the saboteurs' case despite Roosevelt's attempts to block their petition for release. The White House is aware that would probably occur if Bush tried the same thing, administration officials said.
Staff writers Dan Eggen and Mary Beth Sheridan contributed to this report.