Archive for Thursday, November 29, 2001

Senate panel questions constitutionality of tribunals

November 29, 2001

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— In the first sharp criticism by Congress of the Bush administration's anti-terrorism campaign, Senate Judiciary Committee members grilled a top Justice Department official Wednesday about the constitutionality of military tribunals and other measures adopted since Sept. 11.

Committee Democrats and one Republican voiced particular concern about the decision to establish the tribunals to try some foreign terrorism suspects, questioning whether the president has the constitutional authority to bypass the judicial system without congressional approval.

Some senators also said they were troubled by the secrecy surrounding the detentions of hundreds of people in connection with the terrorism investigation and the decision to permit the monitoring of some prisoners' conversations with lawyers.

Committee Chairman Patrick Leahy deplored what he called a "lengthening list of unilateral actions" by the administration, particularly in light of bipartisan efforts to get anti-terrorism legislation with sweeping new law enforcement powers through Congress.

"On those rare occasions when military commissions have been used in the past, Congress played a role in authorizing them. This administration has preferred to go it alone with no authorization or prior consultation with the legislative branch," said Leahy, D-Vt.

Assistant Atty. Gen. Michael Chertoff, the government's top terrorism prosecutor, said President Bush has the constitutional authority as commander in chief to create military tribunals. In a three-hour appearance, Chertoff defended the administration's actions as constitutional, legal and appropriate in extraordinary times.

"I agree that we have taken steps here which represent a departure from some of the things we've done in recent times. But then again, we are not in recent times," he told the committee. "We face an extraordinary threat to our national security and the physical safety of the American people of a character that, at least in my lifetime, we have never faced before."

In particular, he cited the fact that Osama bin Laden's al-Qaida network has used "sleeper" agents who live quietly in a community until activated to commit acts of terror.

"Are we being aggressive and hard-nosed? You bet," he said. "But let me emphasize that every step that we have taken satisfies the Constitution and federal law as it existed both before and after September 11th."

Wednesday's hearing marked the opening salvo in congressional Democrats' plans to increase oversight of the administration's anti-terror campaign. Atty. Gen. John Ashcroft has been asked to appear before the committee next week, and additional hearings focusing on the military tribunals are planned.

While Sen. Arlen Specter, R-Pa., joined the Democrats in questioning the propriety of the tribunals, other committee Republicans derided the growing criticism from civil- and human-rights groups.

"Some of the criticisms, I think, have been unfounded and very unfair, and have almost been hysterical," said Sen. Orrin Hatch of Utah, the committee's top Republican.

"That these tools military tribunals, detainee-attorney monitoring and detention of aliens are constitutional is largely beyond dispute," he said, noting that the Supreme Court previously has upheld the use of military tribunals.

The issue appeared less resolved for others, who questioned whether the administration should bypass the existing court system for an expedited military tribunal process that has fewer legal safeguards and can take place in secret. And, with the United States' long history of criticizing other nations' use of military tribunals, the decision may prompt condemnation by other countries, they said.

"The concern is, aren't we doing exactly what we've criticized other nations for doing?" asked Sen. Edward Kennedy, D-Mass.

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