New York Times
November 25, 2001
Bush's New Rules to Fight Terror Transform the Legal Landscape
By MATTHEW PURDY
As Pentagon officials begin designing military tribunals for suspected terrorists, they are considering the possibility of trials on ships at sea or on United States installations, like the naval base in Guantánamo Bay, Cuba. The proceedings promise to be swift and largely secret, with one military officer saying that the release of information might be limited to the barest facts, like the defendant's name and sentence. Transcripts of the proceedings, this officer said, could be kept from public view for years, perhaps decades.
The military tribunals are the boldest initiative in a series of laws and rewritten federal regulations that, taken together, have created an alternate system of justice in the aftermath of Sept. 11, giving the government far greater power to detain, investigate and prosecute people suspected of involvement in terrorism.
Those changes, described by legal experts and government and law enforcement officials, are likely to affect mostly residents of the country who are not citizens but who, until now, have had many of the constitutional rights and protections of citizens.
The Bush administration says its agenda commands strong public support, a view bolstered by recent polls. Even most critics acknowledge the need for enhanced security measures, but the administration's new approach has stirred unease both inside and outside government, as well as overseas.
Some senior law enforcement officials believe that the military tribunals are unnecessary and that the government's record in prosecuting terrorists in federal court over the last decade justifies continuing that approach. Spanish officials told the United States last week that they would not extradite eight men suspected of involvement in the Sept. 11 attacks without assurances that their cases would be kept in civilian court.
Although it remains unclear how widely these new powers will ultimately be applied, the provisions alter some basic principles of the American judicial system — like the right to a jury trial, the privacy of the attorney- client relationship and strong protections against the use of preventive detention.
The steps taken by the administration reflect outrage that the Sept. 11 terrorists were foreigners who lived freely and undetected in the United States, even though some had violated their visas, and the fear that potential terrorists or people with information about terrorist acts are among the millions of immigrants in the country.
"We're an open society, we give people access to the American dream," said Dan Bartlett, the White House communications director. "With that privilege there is a responsibility. That responsibility has not always been lived up to, and it's not always been asked that they live up to it, either."
President Bush's authorization of secret military tribunals for noncitizens accused of terrorism and the systematic interviewing of 5,000 young Middle Eastern men in the country on temporary visas is well known. But broad new powers are also contained in more obscure provisions.
A recent rule change published without announcement in the Federal Register gives the government wide latitude to keep noncitizens in detention even when an immigration judge has ordered them freed.
And under new laws, the attorney general can detain for deportation any noncitizen who he has "reasonable grounds to believe" is "engaged in any activity that endangers the national security of the United States," according to a recent internal Immigration and Naturalization Service memorandum.
Critics have said that the administration's measures often mean singling out people on the basis of nationality or ethnicity.
"We have decided to trade off the liberty of immigrants — particularly Arabs and Muslims — for the purported security of the majority," said David Cole, a law professor at Georgetown University who often represents detained foreigners.
In the guidelines for carrying out the 5,000 interviews with young Middle Eastern men, Attorney General John Ashcroft wrote to federal prosecutors that the selection of the men was not meant to imply "that one ethnic group or religious group is more prone to terrorism than another." Yet local law enforcement officials in several cities have balked at carrying out the interviews because of the impression of profiling.
Secrecy is a hallmark of the wartime judicial system, just as the free flow of information is a signature of the nation's normal criminal procedures. The names of about a dozen people being detained for months as material witnesses in the Sept. 11 investigation have been kept confidential because, officials explain, they are witnesses in grand jury proceedings. In ordinary cases, while grand jury proceedings are closed to the public, witnesses are rarely held in jail.
A full accounting of law enforcement activity related to the Sept. 11 investigation has not been made public. The Justice Department has not said precisely how many people are being detained, how many have been questioned and released and where people are being held and on what charges.
The new administration powers, amassed during wartime, have made the normally delicate balance between individual rights and collective security that much more precarious.
"My view on the military tribunals will be formed by how they're used," said Warren B. Rudman, the former Republican senator from New Hampshire and the chairman of the president's foreign intelligence advisory board. "If they're done carefully and with deliberation — and I really expect they will be — I don't have a problem with it.
"As far as ethnic profiling; it's very troubling. It pains me to say this, but some of it may have to be done. We just have to recognize that we cannot bend over backwards in our innate American fairness to overlook that there are some people trying to hurt us."
The Act: Bill With Long Name, and Longer Reach
The biggest changes in the government's power over residents who are not citizens were spelled out in a law known as the U.S.A. Patriot Act, hastily passed after the attacks. The measure's potential reach is summarized in the full name that was needed to create that acronym — the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.
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