Sen. Charles E. Schumer, D-N.Y., scheduled a Judiciary Committee subcommittee hearing for Dec. 4 on Bush's decision to possibly form special military tribunals to try foreign citizens who may be suspects in the bombing of the World Trade Center and the Pentagon. Military tribunals of this sort have only been used in the Civil War and World War II.
"Any departure from our legal system this significant should be vetted by Congress," Schumer said.
The veteran New York legislator said the hearings had two goals: to ascertain whether Bush had the power to form a tribunal without consulting Congress and whether the military tribunal was the best way to insure a trial that would protect national security information while guaranteeing fairness for the suspect.
Schumer, chair of the Administrative Oversight and the Courts subcommittee, said he had an "open mind" on Bush's decision but, "I am certainly skeptical about the president just issuing an order without any debate in Congress."
On Wednesday, the full Senate Judiciary Committee will also consider whether the government decision to try terrorist suspects in military tribunals and to monitor talks between suspects and their lawyers has gone "too far" in changing U.S. civil liberty guarantees.
The administration scrambled Tuesday to address growing concern in Congress over the plans.
"I think it's entirely proper that the United States Senate and House exercise oversight over the Justice Department," Ashcroft told a news conference at the Department of Justice later Tuesday. "I have the highest level of respect and regard for these elected representatives of the people. I happen to have spent some time sitting on their side of that operation. I'll be there and I will respond to them," the attorney general said.
"I consider them to be expert in the law -- they create the law -- and would respond to them and their questions, and I think that's the appropriate thing to do," Ashcroft said.
Ashcroft will appear before the Senate Judiciay Committee on Dec. 6 at a continuation of the Wednesday hearing.
"We do not live in a monarchy," Georgetown University Law Professor Neal Katyal said in an advance copy of his testimony scheduled for presentation to the Senate Judiciary Committee Wednesday. "Even though I endorse a broad view of executive power, the military order and the AG regulation go too far."
The Justice Department Tuesday made a last-minute decision to send Assistant Attorney General Michael Chertoff to defend the administration's plans in the Senate Wednesday. The department Tuesday afternoon was also set to dispatch DOJ officials to meet privately with staff from both parties on the House Judiciary Committee in the face of increasing consternation in that chamber as well.
Wednesday's hearings will begin to coalesce the widespread criticism that has grown up around several of President Bush's domestic anti-terrorist laws.
"I think there is a recognition that there needs to be a greater output by the administration on trying to explain and justify these programs," said Scott Silliman, director of the Center for Law, Ethics and National Security at Duke University in Durham, N.C. Silliman is also set to testify. "I think this thing needs to be slowed down a bit."
Bush Monday defended the option of trying suspects in a military tribunal, where the administration would select the lawyers, the judges, the standards for justice and the venue. Spain has decided not to extradite a group of al Qaida suspects to the United States because they might face the tribunal and the possibility of a death sentence.
"It's the right decision to make and I will explain that to any leader who asks," Bush said of the tribunals in the White House Rose Garden.
With respect to the military tribunals, the administration has cited a historical precedent set by former President Franklin D. Roosevelt to use military tribunals to try Nazi saboteurs captured during World War II.
The U.S. Supreme Court approved Roosevelt's decision in the landmark Quirin case. But some legal scholars said that the court noted a formal declaration of war in that case, which handed the executive branch extremely broad authority. While Congress has passed a resolution authorizing the use of force against perpetrators of the Sept. 11 terrorist attacks, some scholars argue that resolution falls far short of letting Bush follow Roosevelt's lead with military tribunals.
Schumer said he doubted whether the resolution or Bush's role as commander-in-chief of the armed forces gave him the power to order tribunals. He said the committee would also determine whether all foreign suspects would be treated alike.
He said in his opinion there were "graduations" among suspects. U.S. citizens have the greatest protection, he said, and legal foreign residents the next. People in the U.S. illegally had less protection and suspects seized abroad had the least.
The Senate Judiciary panel is set to consider some of those issues, among others, on Wednesday.