As they tend to do in times of national crisis, last Sept. 11 Americans looked to the person the constitution designates as commander in chief. And President George W. Bush responded - with aggressive and often unilateral executive action.
Without seeking formal approval from either Congress or the courts, the Bush administration has taken steps to establish military trials for foreign terror suspects, designated two U.S. citizens as "enemy combatants" who may be held indefinitely without charge and ordered secret deportation hearings for suspected terrorists. In these and other cases, the president and his aides say his office gives him the authority he needs to fight Al Qaeda.
"The enemy has declared war on us," Bush said on Nov. 29. "And we must not let foreign enemies use the forums of liberty to destroy liberty itself."
Yet, as the initial shock of Sept. 11 receded, criticism - and even condemnation - of Bush's approach by civil liberties groups, members of Congress, the courts and the media emerged. He stands accused of usurping powers not conferred on him by the constitution and of infringing on individual freedoms. Perhaps the toughest rebuke came last week, when a federal appeals court based in Cincinnati said the administration's arguments for secret deportation hearings had been "undemocratic" and "in complete opposition to the society envisioned by the Framers of our constitution."
The result is that, a year after the attack, the administration and the country are engaged not only in a seemingly open- ended struggle against terrorism but also in a searching debate over democratic values - a political and legal argument that seems headed for the Supreme Court.
The basic question is as old as the constitution itself: How can Americans defeat a grave external menace without undercutting the democracy they are trying to save?
"Asking questions is not being un-American," said Senator Patrick Leahy, Democrat of Vermont, who has taken issue with some of the administration initiatives. "It's saying that no one person knows everything or has all the right answers."
Counters William Barr, who served as attorney general in the first Bush administration and has advised the current one on terrorism-related legal issues: "We shouldn't lose sight of the fact that the way 9/11 affects our civil liberties comes not from the government's response but from the danger caused by terrorists in the first place."
The Framers of the constitution in the 18th century guaranteed basic rights and contemplated that government could suspend at least one of them, the writ of habeas corpus, in an emergency. Constitutional scholars note that the Framers wanted checks and balances, but also saw a strong presidency as a bulwark of national security. Making the case for ratification of the constitution in 1788, Alexander Hamilton wrote that "energy in the executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks." Hamilton listed the advantages of a strong executive: "Decision, activity, secrecy and dispatch." In this sense, legal analysts say, Bush's aggressive claims of authority are within the constitutional tradition and akin to the actions of past wartime presidents.
Though some of his actions - such as using force in Afghanistan or eavesdropping on suspected terrorists' cell phones and e-mail in the United States - have been authorized by Congress, and others - such as denying access to U.S. courts for detainees at Guantanamo, Cuba, have been upheld by courts - the Bush administration seems to prefer acting on its own.
This preference held sway not only with respect to alleged enemy combatants and closed-door deportation hearings but also in detaining hundreds of mostly Arab and Muslim men under near-secret conditions and decreeing that Justice Department officials may eavesdrop on some conversations between suspects and their attorneys.
While opposition to the Bush administration's approach may be spreading - Attorney General John Ashcroft's proposal to enlist meter readers and truck drivers as anti- terrorism informants met with outrage not only from Democrats in Congress but also from such Republicans as the House majority leader, Representative Dick Armey of Texas - opinion polls show it is not yet a majority sentiment.
In a Gallup-CNN-USA Today poll in June, for example, 11 percent of those surveyed thought the Bush administration had gone too far in restricting civil liberties, 50 percent said it has been about right and 25 percent that it has not gone far enough.
Even many of Bush's critics acknowledge that he has not tried to regiment American society as some wartime predecessors did. During the Civil War, Abraham Lincoln suspended habeas corpus without an act of Congress and detained thousands of suspected rebel sympathizers. During World War I, Woodrow Wilson prosecuted anti-war activists and banned anti-war publications from the mails. During World War II, Franklin Roosevelt interned tens of thousands of Japanese-Americans.
"By the standards of current law, some of the things Bush has done are aggressive, but they are not out of line - and they're pretty cautious by historical standards," said Cass Sunstein, a professor of constitutional law at the University of Chicago.
Sunstein says that, to many people, the relevant comparison is not between what Bush has done and what Lincoln or Roosevelt did, but how Bush's actions measure up to modern concepts of constitutional rights, which are, by most measures, far more expansive than they were even as recently as World War II.
"So many of the efforts undertaken by the government are either not necessary or the trade-off is wrong, " said Anthony Romero, executive director of the American Civil Liberties Union.
"The public will have greater confidence in the workings of government if Congress and the courts engage," he added. "This is not the executive branch's war on terrorism. This is the American government's war on terrorism."
Romero argues that the most effective check on executive power may come from the news media and "civil society."
In recent weeks some federal courts have begun to weigh in against the administration. The appeals court ruling last week was handed down after five district judges had ruled against various aspects of the president's anti-terror campaign.
Bush is facing particularly stiff resistance to his assertion that the executive branch may designate certain U.S. citizens as "enemy combatants," and hold them indefinitely, without charging them with a crime or permitting them access to an attorney. Two such detainees are being held at a navy brig in South Carolina: Yasser Esam Hamdi, who was born in the United States of Saudi parents, was captured in Afghanistan; Jose Padilla, a Brooklyn-born Puerto Rican who converted to militant Islam after a career as a petty criminal, was arrested by agents of the Federal Bureau of Investigation in Chicago on suspicion that he was part of a Qaeda plot to use a radiological bomb in the United States.
The courts should have no role in reviewing these designations, administration lawyers have argued, because they are inherently military decisions, which the executive branch is uniquely qualified - and empowered by the constitution - to make.
In terms of asserting executive authority, that claim "is possibly the most incautious thing Bush has done," Sunstein said.
During still-unsettled litigation over Hamdi's bid for a writ of habeas corpus, a federal district judge in Virginia, Robert Doumar, an appointee of President Ronald Reagan, ordered that Hamdi get access to a lawyer and said the administration cannot hold him unless it lays out more of its evidence for the court.
The U.S. Court of Appeals for the 4th Circuit overruled Doumar's order granting Hamdi a lawyer, but that usually conservative court balked at the administration's demand that the courts have no role in such cases, calling the argument "a sweeping proposition."
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