Republicans and Democrats expressed support for an aggressive war against terrorism, but some lawmakers -- mostly Democrats -- warned the Justice Department not to toss aside the protections afforded by the Constitution in the name of safety for U.S. citizens.
"Let us have some confidence in those things that make us strong and great as a nation," Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., said.
Some members of both parties expressed particular consternation the administration had apparently not notified any members of Congress that President Bush might establish military tribunals. Chertoff and committee members also squarely disagreed over whether the president must receive explicit approval from Congress before establishing military tribunals.
"This is a matter the Constitution gives to the Congress, to establish military tribunals" Sen. Arlen Specter, R-Penn., said. "It is surprising to know that the attorney general did not consult with a single member of this committee."
Other Republicans, including committee Ranking Member Sen. Orrin Hatch, R-Utah, and Sen. Jeff Sessions, R-Ala., said that while the administration must be careful with aggressive law enforcement tools, those tools might best protect Americans from future terrorist attacks.
"That these tools -- military tribunals, detainee/attorney monitoring, and detention of aliens -- are constitutional is largely beyond dispute," Hatch said. "It is easy to criticize from where we sit. It is much harder to go to work every day knowing that you are the person in charge of protecting Americans from terrorists."
Constitutional experts also reflected the split over the authority to establish military tribunals.
For example, 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.
Other experts disagree. Former Attorney General William P. Barr told the committee that an 1862 Supreme Court decision clearly gives the president the power to establish military tribunals once a state of war exists.
"The president, as commander in chief, is empowered to take whatever steps he deems necessary to destroy this adversary and to defend the nation from further attack," Barr said.
"There does not have to be a formal declaration of war," Chertoff agreed.
But Sen. Edward Kennedy, D-Mass., noted the government must tread carefully to avoid making any mistakes it might regret later, such as the internment of Japanese Americans during World War II.
"As we face another crisis today, I am hopeful that we can avoid the errors of the past."
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