Some legal experts believe these moves violate Constitutional guarantees, but others argue that not only are they legal, they are necessary to ensure national security.
"In the rational peacetime process, if you can produce a case (against a suspect) then you go after it. If you don't have the ability to defend it in district court, then too bad," says Ruth Wedgwood, director of the international law and organization program at the Johns Hopkins University School of Advanced International Studies, known as SAIS, and professor of law at Yale University.
"What has changed everything, I think, are weapons of mass destruction and this strange new non-state association (al Qaida) that has nothing at stake, no people and no territory," she said. "It is almost a law school hypothetical: 'What do you do if you have a determined adversary with a method of fighting so dangerous you can not miss a single (attempted attack)?'"
Controversies swirl around the administration's actions in its investigation, detention and prosecution of terror suspects. For one, critics argue that President Bush's executive order permitting secret military tribunals to try suspected foreign- and domestic-born terrorists is simply a means to skirt the laws and rules of evidence required in criminal cases.
In addition, the administration's declaration that both foreign- and American-born terror suspects can be held indefinitely as "enemy combatants" -- without the filing of charges or the application of other legal precepts -- has many up in arms.
Federal courts have begun to show signs of disapproval about the classification of detainees as enemy combatants, at least in regard to American citizens. On July 18, a federal district judge in Norfolk, Va. gave federal prosecutors one week to explain why an American captured with Taliban fighters -- Louisiana-born Yasser Esam Hamdi, 21 -- is being held without charges.
Prosecutors have argued that as an enemy combatant, Hamdi could be held without charge as long as the country is at war, but Federal District Court judge Robert G. Doumar said that such a position meant that Hamdi could be held forever.
Robert Higgs, senior fellow in political economy at the Independent Institute and a strict Constitutional constructionist, says that the judge's concerns are well founded.
"The danger of the so-called war on terrorism is that it will turn out to be what Mr. Cheney and Mr. Rumsfeld say it is going to be, which is a permanent emergency," said Higgs "We my find that the administration continues to overstep onto people's Constitutional rights, particularly their right to due process law, for a long time to come."
Critics also argue that the USA Patriot Act of 2001, passed by Congress last October, has scaled back Constitutionally guaranteed protection from unwarranted government intrusions into individual privacy. The bill gives the Central Intelligence Agency, Federal Bureau of Investigation, and federal prosecutors broad new powers that were once strictly forbidden, such as the ability to listen in on phone conversations between lawyers and defendants accused under terror statutes.
Timothy Lynch, director of the libertarian Cato Institute's Project on Criminal Justice, says that the natural and historical government response to terrorist attacks is to propose "dubious" curtailments of privacy and civil liberties as measures aimed at assuaging citizen anxiety.
He argues, however, that the reality is that more attacks are going to happen and that the president and Congress can do nothing to stop them. He believes that this cycle of curtailing civil liberties after periods of terror must be broken to ensure that vital freedoms are not lost.
"I think the federal government can hold people as POWs, but the point that is of great concern to us is that President Bush and his Attorney General are saying that they can take someone into custody under their own authority, that they can deny people access to an attorney even if they are U.S. citizens, even if they are apprehended on U.S. soil, " said Lynch. "They are also seeking to put obstacles in the path of people seeking the Constitutional writ of habeas corpus."
Lynch stressed that the legal positions taken by the Justice Department and the revisions of rights in the Patriot Act have implications -- far beyond the cases of Hamdi or Jose Padilla, an American citizen classified as an enemy combatant who is being held in a Navy brig in South Carolina as a suspect in a plan to build a radioactive "dirty bomb"-- that will affect ordinary Americans.
Wedgwood says that despite all these considerations, the administration's actions are warranted given the immense threat posed by al Qaida. She believes there is a need to balance prosecutorial needs with civil liberties to ensure national security.
She argues that the dangers posed by al Qaida require that lawyers be "creative" in their approach to cases.
Wedgwood noted that the Padilla case, for instance, carries particular problems for prosecutors because the suspect was apprehended based on information from an imprisoned al Qaida leader who would clearly be unwilling to testify in court. In addition, she says that despite the lack of traditional evidence for arresting Padilla, he was correctly viewed as too large a threat not to be apprehended immediately.
Wedgwood also said that existing international human rights instruments and conventions all take into account states of national emergency, and that the administration's actions are generally acceptable under those covenants.
However, she believes that the Bush White House has clearly overstepped certain limits in the legal and international human rights covenants. For example, she has urged the administration to make the application of enemy combatant status more legally acceptable by building in a review process to standardize the specific terrorist actions that would trigger this status for a suspect.
"That is the general consensus among liberals and conservatives alike," she said.
Long an advocate of civil rights laws, Wedgwood told UPI that her overall support of the Bush administration's stance is based upon the needs defined by the current "very unhappy circumstances."
"I think there may be an underlying American optimism that one can have it all at once," she said. "That you can have the perfect privacy and perfect security and pay the most utterly undemanding price. The pleasures of bourgeois life don't necessarily mean that you can avoid horrible trauma. I guess you do have the sense that you can take things for granted living behind a kind of dyke of safety."
Paul Rosenzweig, a senior legal research fellow at the Heritage Foundation's Center for Legal and Judicial Studies, agreed with Wedgwood that the administration must recognize the limits of its power.
He says that historically, although the Supreme Court has found that the Constitution does not extend oversees to protect non-American citizens, naturalized or native born citizens being held under the enemy combatant classification represent a "much more troubling issue."
"No less a liberal than Lawrence Tribe AFFILIATION? said that if enemy combatants are trying to kill us, we would be idiots to send them home," said Rosenzweig. "But it seems to me that the government ought to acknowledge the authority of the court to review the findings with deference to the need to ensure security and confidentiality of informant sources."
Higgs says he generally opposes all of the measures the Bush administration has taken to circumvent normal judicial procedure, because of the dangers they pose to individual rights.
"It seems to me that the Constitution guarantees everybody in this country due process of law, including the right of habeas corpus," said Higgs. "Denying anybody that right by labeling that person a combatant or re-labeling that person in another way is simply a violation of the Constitution. There has been no declaration of war nor is there a country with which we can be at war."
According to Higgs, there is no Constitutional reason why terrorists should be treated outside of the judicial system, and the administration's justification of these acts by citing past abuses of the Constitution -- like the use of war tribunals in World War II -- does not make them legal.
"Whenever the government has circumvented Constitutional requirements in the past, the consequences have been unfortunate, because many times these actions are treated as precedent, and some time later this precedent is used to justify other infringements," said Higgs. "This present so-called war on terrorism is such a time."
Wedgwood believes there are limits to how long the legal system can be pushed the way the administration is pushing it, but said that we are not yet to the point of concern.
"I take the position that one doesn't want to live this way forever, and if you become too used to it, and the outstanding becomes normal, than you can lose something," she said. "But I am sure were are not at the point yet of having to decide what to do."
Rosenzweig believes that although the pendulum of government power swung away from protecting civil liberties in the immediate aftermath of September 11, historically such changes are corrected.
"The balance between civil liberties and government power has always been a swinging pendulum," said Rosenzweig. " Frankly I think it is already swinging back a bit. In the long run we have always proven able to strike a good balance."
But Lynch says such optimism needs to be tempered by acknowledging the reality of government power.
"I don't think we should assume that the power assumed by the government during wartime will eventually be corrected by the courts or subsequent Congresses," he said. "That is why a lot of us are speaking out now to bring cases of overreach and abuse to people's attention, so that they can be corrected now."
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