Rough Justice

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The Justice Department insists that at least a few of the detainees belong to al-Qaeda. And many of those who do not belong have broken the law in troubling ways. The largest group is a ring of 22 Arab men who submitted false IDs and background information and paid bribes to obtain permits to transport hazardous materials. Law enforcement's fear: that they were part of an al-Qaeda plot to turn a chlorine or liquid-gas truck into a bomb on wheels capable of killing tens of thousands. The men turned out not to be terrorist linked. But with Osama bin Laden vowing to use weapons of mass destruction in the U.S. and claiming he has sleeper cells in place, it's hard to argue that the Haz-Mat 22 weren't worth some intense scrutiny.

Chasing bad guys is one thing, but critics have raised hell about Ashcroft's initiative to have local police interview some 5,000 men and women in Arab-American and Muslim communities. The government has made clear all along that talking is voluntary and says the interviews afford the government a chance to enlist help from the public. "The way I put it is that this is like a crime has been committed against your next-door neighbor," says presidential counselor Karen Hughes. "This is a chance to help."

That may be true. What is less convincing is the rationale that the approach will turn up something useful. Many of the subjects probably won't talk, particularly since the Immigration and Naturalization Service sent around a memo last week saying any interviewees in the country illegally can be held on immigration charges. The day after eight former high-ranking FBI officials attacked the effectiveness of the program in a front-page Washington Post article, the Justice Department moved to sweeten the pot. It announced the "Responsible Cooperators Program," which offers fast-track naturalization and, ultimately, the possibility of citizenship to foreigners, including illegal immigrants, who provide information that leads to the apprehension of terrorists.

Many other aspects of the Bush Administration's new legal landscape will and should provoke even fiercer debate. At the top of the list is military tribunals, which civil libertarians regard as a perversion of the American justice system. The precise rules for how such tribunals would work have yet to be announced. According to legal experts, it is likely that they would be based on the Uniform Code of Military Justice, which calls for military officers as judges and in many cases allows a conviction based on a two-thirds vote. But military tribunals would have even fewer legal niceties than those already stripped-down procedures. Among the protections likely to be missing: the ban on hearsay and the exclusionary rule, which keeps out evidence collected improperly.

Whether a defendant could appeal a conviction is unclear. Legal experts say there may be no direct appeal. And President Bush's order, which says defendants "shall not be privileged to seek any remedy or maintain any proceeding" in another court, can be read as an attempt to deny the right of habeas corpus.

Above all, critics of the tribunal idea question why these cases cannot be brought and won in regular federal courts. When the World Trade Center was attacked in 1993, federal prosecutors convicted the bombers, including mastermind Ramzi Ahmed Yousef, in a regular federal court in Manhattan. Sheik Omar Abdel Rahman, the blind Egyptian cleric who plotted to blow up the United Nations and New York City-area bridges and tunnels, was also convicted in a regular federal court.

The Administration has expressed concern that if suspected terrorists face ordinary trials, confidential evidence and informants' names will be released. But there are ample procedures for keeping those under court seal, as was done in the first World Trade Center trial. Ashcroft told TIME the military tribunals are at least partly about winning the public relations war. "The people know it would be a farce to capture somebody on their way to America to perpetrate a terrorist act, read them their Miranda rights, equip them at public expense with a flamboyant defense attorney, to bring them into a trial so that it becomes Osama TV," Ashcroft said.

But the Bush Administration may not have the last word on military tribunals, since it's not clear our allies will stand for them. Spain has said it will resist extraditing 14 suspected al-Qaeda members it has arrested unless it is assured they will be given civilian trials. Since foreign countries have so far rounded up the vast majority of the 350 al-Qaeda members the Administration says have been arrested since Sept. 11--including two more in Italy late last week--the Administration may be forced to back down and hold civil trials if it wants to try them in the U.S.