Rough Justice

The most tension-packed moment of Assistant Attorney General Michael Chertoff's appearance before the Senate Judiciary Committee last week came, not surprisingly, when he was forced to defend the Bush Administration's embrace of military tribunals. How could the U.S. hold trials in which the judges are military officers, just a two-thirds vote is sufficient to convict, and there is no need for proof beyond a reasonable doubt? How could the Administration support legal proceedings that are held in secret--meaning a defendant can go from being charged to being put to death without the public ever finding out? "Whether you have a civilian tribunal or a military tribunal, it's possible to have a fair one and it's possible to have an unfair one," said Chertoff with steely determination. "It's how you implement it."

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The Bush Administration has been just as resolute in defending other hard-nosed legal strategies it has rolled out since Sept. 11--a broad array of tactics that supporters are calling necessary tools in the war on terrorism and that critics are attacking as the sharpest curtailment of civil liberties in decades. Among the flash points: a new measure that allows the government to listen in on conversations between some suspects and their attorneys, the detaining of more than 500 people nationwide without publicly revealing their identities or the charges against most of them, and the ongoing interrogation of 5,000 people within the Arab-American or Muslim communities.

It's been true throughout American history that when the bullets fly, civil liberties are among the first casualties. During the Civil War, Abraham Lincoln suspended the right of habeas corpus, the constitutionally enshrined procedure by which a defendant can challenge a wrongful conviction. In World War II, Franklin Roosevelt interned 120,000 Japanese Americans and tried accused German saboteurs in military courts. The Bush Administration is leaning on these historical precedents in saying the traditional balance between security and freedom needs to shift, at least in the short term. "We're an open society," President Bush declared last week, "but we're at war."

The public, so far at least, is going along. Polls show strong support for everything from increased government power to detain legal immigrants--82% are in favor, according to a Gallup survey--to military tribunals. Most seem to agree with the blunt logic of Utah Republican Senator Orrin Hatch. "Yes, the Administration has been aggressive in using all of the constitutional powers at its disposal," he argues, but it's justified because terrorists "are trying to kill Americans--as many as they possibly can."

For much of the past two months, what little criticism there has been of the Bush Administration's law-enforcement tactics has come from the Russ Feingolds of the left and the Bob Barrs of the right. But lately there has been a rising tide of skepticism from the political middle, including some influential members of Congress. That skepticism is likely to increase, with reports that the Justice Department is considering reversing time-honored 1970s rules that bar the FBI from spying on religious and political organizations. The FBI has been frustrated since the first World Trade Center attack in 1993, when it learned that Islamic terrorists were recruiting and organizing in mosques but could not send in agents or install wiretaps to investigate. Dropping the rules, however, would probably draw the ire of groups ranging from liberal black churches, whose congregants remember the FBI's harassment of Martin Luther King Jr., to fundamentalist Christians, many of whom regard the Federal Government as hostile--and many religious and political bodies in between.

The debate over the Bush Administration's new legal initiatives will come to a head this week when Attorney General John Ashcroft appears before the Senate Judiciary Committee. Many Senators, particularly Republicans, are squarely behind the Administration. No one expects the Senate to vote to restrict the government's actions; Senators know that doing anything these days that smacks of being weak on terrorism is political suicide. But they want to send a message that they are watching and intend to play a bigger role in setting law-enforcement policy from now on.

Civil libertarians raise three main objections to the tactics the Bush Administration is using to fight terrorism. They argue that even in the current extreme circumstances, some government initiatives aimed at terrorist suspects, like military tribunals, simply go too far. They are worried that the new rules may reshape the legal landscape for all Americans--not just for noncitizens and not just for suspected terrorists. And they are concerned that by brushing aside Congress and the judiciary, the Bush Administration is throwing off the delicate balance among the three branches of government that was intended by the Founding Fathers.

Much of the Bush Administration's homeland war on terrorism has been entirely reasonable. Law enforcement has been criticized for rounding up more than 1,000 people in the course of the investigation; more than 500 are still being detained. The rap: that many are in for minor criminal offenses and immigration fraud. Since the vast majority are immigration detainees and their names have been withheld, it's a hard claim to evaluate. But it is clear, based on the cases of 93 people charged criminally and on the immigration violators whose names have been released, that at least some of the detainees are exactly the sort of people Americans would want the FBI to zero in on.