Rough Justice

(3 of 5)

Backing down may be what the Bush Administration is doing. Officials this week talked about using the tribunals mostly for foreigners who are picked up abroad. This raises questions about whether the Administration intends to use them at all for those detained in the U.S.--such as Zacarias Moussaoui, the alleged 20th hijacker from Sept. 11. New guidelines could make clear that military tribunals will be limited to "real foreign terrorists who violated the laws of war and engaged in unlawful belligerency against the U.S.," a White House official told TIME. "As soon as people understand the military commissions are going to be for really bad people, they'll be more comfortable." Among the venues reportedly being considered for the trials: Guam, Midway or the deck of U.S. warships in international waters--which would provide security and convenience.

Another area in which the Bush Administration is likely to face prolonged criticism is the secrecy of its detentions. Even many who believe the roundups are justified are troubled that the government won't say whom it's holding. Critics say that having people disappear into government custody smacks of authoritarianism--and conjures up memories of the desaparecidos, the dissidents who mysteriously disappeared in 1970s Argentina. Such secrecy makes it difficult to verify that the detentions are justified.

The Bush Administration has made fumbling attempts to justify the shadow detentions. At first Ashcroft claimed that the detainees' identities were being kept secret for their own benefit--to prevent the creation of a McCarthy-style blacklist. When that explanation was widely derided, the Justice Department offered a new justification: that some of the detainees were members of "sleeper cells" and that law enforcement did not want to tell the enemy which of its agents were out of commission. "We might as well mail this list to the Osama bin Laden al-Qaeda network as to release it," Ashcroft said.

Still, the criticism seems to have had an impact. The day before the Senate Judiciary Committee's hearings began, the Administration published a list of the names of 93 people arrested in connection with the terror probe. Although it refused to identify the rest of the 548 detainees still in custody, it did give a more detailed accounting of them, including their places of birth, the charges against them, and their dates of arrest.

Now civil libertarians are fretting over the new tools the government has given itself to monitor these suspects. A few weeks ago, the Justice Department authorized law enforcement to monitor communications between certain suspects and their lawyers. It was a blockbuster of a decision because private attorney-client communications have long been sacrosanct in the law--repeatedly held by courts to be essential to ensure that defendants get a fair trial.

The Justice Department has tried to justify the intrusion as necessary to prevent terrorists from using their counsel, in the tradition of mob consiglieres and drug-kingpin lawyers, to convey information to co-conspirators on the outside. At last week's Senate hearing, Chertoff quoted from an al-Qaeda terrorism manual obtained overseas that urged members to take advantage of prison visits to communicate useful information.

One of the most troubling aspects of the new rule, civil libertarians say, is that the Attorney General--not a neutral party, like a judge--decides when law enforcement can listen in. You don't need to know much more constitutional law than you'd get on The Practice to realize this sort of monitoring goes to the core of the American justice system. Sure enough, by last week the Administration was backpedaling on this point--not rescinding the rule, but going out of its way to say only 16 of the 158,000 inmates in the federal system have been assigned the special administrative status that makes them eligible for monitoring.

Civil libertarians are worried that what they see as the Bush Administration's post-Sept. 11 rights grab on all these different fronts will be with us forever. Congress insisted on applying the sunset rule to many provisions of the U.S.A. Patriot Act, the main new law to come out of the Sept. 11 attacks: if they are not passed again in four years, they disappear. But unlike Roosevelt's 1942 military-tribunal order, which authorized just one trial, Bush's order on tribunals has no end date. Attorney-client monitoring is also open-ended.

Critics fear that the new legal rules will wind up being used against all Americans, not just suspected al-Qaeda members. The "domestic terrorism" provisions of the act have a very broad reach: they can apply to anyone who intimidates or coerces the government through criminal activity that is dangerous to human life. That could mean getting into a heated fight with a police officer at an antiglobalism protest. "If you're a member of Greenpeace and Greenpeace sails a ship into an American naval vessel, you can find yourself covered under the definition of international terrorist," says Mort Halperin, a senior fellow at the Council on Foreign Relations and onetime head of the A.C.L.U.'s Washington office. "You could be subject to secret searches of your home, to wiretaps under much less stringent standards than under the requirements of criminal law."